VI. Application to Different Phases of the Proceedings

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

VI. Application to Different Phases of the Proceedings

The Sixth Amendment right to a public trial applies not only to the trial itself but also to all significant aspects of the proceedings. It covers jury selection⁶² and suppression hearings⁶³ but not sidebar conferences addressing sensitive matters.⁶⁴ It has been held to apply to competency hearings,⁶⁵ but one federal court found that the Sixth Amendment right does not include material witness proceedings.⁶⁶ Another court determined that there was no offense to a defendant's Sixth Amendment right where the trial judge questioned jurors in a closed proceeding about whether they felt threatened by certain spectators in the courtroom.⁶⁷ Moving voir dire to an unlocked magistrate's office because of a bomb threat in the courthouse did not violate the accused's public trial right even though no members of the public attended.⁶⁸ Mailing the verdict after a bench trial was held to be a violation. Still, the remedy was not a new trial but was to reconvene the trial and announce the verdict in open court.⁶⁹

The names of jurors are sometimes kept secret to protect them from intimidation and to protect juror privacy. Among courts that have addressed the issue, some have found the requisite overriding interest and others have not.⁷⁰ In some jurisdictions juror identities are presumptively confidential and the venire and seated jurors are identified only by number.⁷¹ A similar absence of a uniform national practice appears to be true as to the withholding of juror questionnaires used in advance of the voir dire conducted in open court.⁷²

Historically, in the United States, many states granted the defendant the power to exclude the public from preliminary hearings.⁷³ The purpose was to limit adverse publicity both for those for whom no probable cause is found and for those who will face trial.⁷⁴ Because of the recognition of the public's First Amendment right to attend trial proceedings, states have since revised such rules. An order closing a preliminary hearing is permitted only where the constitutional tests for closure are met.⁷⁵

In a nationally televised murder trial, the trial judge granted defendant Jodi Arias' motion to exclude the public during her death penalty mitigation phase upon the defendant's assertion that she would not testify if the public was present.⁷⁶ She argued that she had received death threats and "would not be 'able to fully communicate what she wants to say, communicate her remorse and go through all the mitigating factors and get them out there in front of the jury with the public here.'"⁷⁷ The trial court applied Waller and found a basis for sealing the proceedings. Upon an interlocutory appeal, the appellate court rejected this contention and unsealed her testimony.⁷⁸

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Notes:

^[62] . Presley, 558 U.S. 209 (2010); United States v. Negron-Sostre, 790 F.3d 295, 300 (1st Cir. 2015) (vacating convictions from a three-month trial which was "doomed before it started" by Puerto Rico's "longstanding practice of excluding the public from jury selection"), but compare State v. Russell, 357 P.3d 38, ___ (Wa. 2015) (off-the-record work session in a jury room for the purpose of reviewing jury questionnaires...