Historical Background on Right to a Public Trial

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Criminal trials have generally been open to the public since the origins of the Anglo-American legal system.1 Indeed, the public nature of the criminal trial was one of the principal attributes that, historically, distinguished common law “accusatorial” criminal procedure from the “inquisitorial” system that took root in so-called civil law countries (i.e., countries where the dominant legal tradition descends from Roman law)2 in the sixteenth century under the influence of canonical law.3 The publicity of the criminal trial has traditionally been regarded as a protection against oppressive use of the judicial power to impose punishment and as a means of safeguarding the right to a fair proceeding.4 The most commonly-referenced outlier to the tradition of open criminal justice in Anglo-American legal history—the English Court of Star Chamber, abolished in 1641, which followed the inquisitorial practice of deciding criminal cases based on a written record of interrogations of the accused and witnesses,5 and which may have conducted some interrogations in secret6 —is generally considered by its infamy to have reaffirmed the paramount importance of public trials.7 The tradition of holding public criminal trials was apparently well-established in the American colonies before the ratification of the Sixth Amendment.8

1: Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564–65 (1980) (noting that community participation in criminal trials in England predated the Norman conquest and carried through into the development of the common law) (citing Frederick Pollock, English Law Before the Norman Conquest, in 1 Select Essays in Anglo-American Legal History 88, 89 (1907)); In re Oliver, 333 U.S. 257, 266 (1948) ( “This nation’s accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial.” ).
2: See John Henry Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America 2–3 (3d ed. 2007) ( “The traditional date of [the civil law tradition’s] origin is 450 B.C., the supposed date of publication of the Twelve Tables in Rome. It is today the dominant legal tradition in Europe, all of Latin America, many parts of Asia and Africa, and even a few enclaves in the common law world (Louisiana, Quebec, and Puerto Rico).” ).
3: Id. at 128 ( “Historically, inquisitorial proceedings have tended to be secret and written rather than public and oral.” ). One should not confuse the historical and contemporary forms of criminal procedure in civil law countries, many of which have long since incorporated public trials into their criminal law systems. Id. at 131–32 (explaining that the predominant modern form of the criminal trial in civil law countries, though different in nature from the common law trial, is “a public event, which by its very publicity tends to limit the possibility of arbitrary governmental action.” ). Careful analysis of the differences between the modern accusatorial and inquisitorial systems does not yield simple conclusions about their comparative merit. Id. at 133 ( “For those readers who wonder which is the more just system, the answer must be that opinion is divided. . . . The debate is clouded by . . . preconceptions that are difficult to dispel.” ).
4: In re Oliver, 333 U.S. at 270 ( “[T]he [public trial] guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” ).
5: See John H. Langbein et al., History of the Common Law: The Development of Anglo-American Legal Institutions 570 (2009) ( “The cornerstone of European procedural systems, civil and criminal, as well as the . . . Star Chamber, was the ability to examine parties and witnesses under oath, preserving their responses as written evidence for the court.” ); Merryman & Perez-Perdomo, supra note 2, at 128 ( “[T]he Star Chamber . . . was basically an inquisitorial tribunal. The Star Chamber was, however, exceptional in the common law tradition.” ).
6: In re Oliver, 333 U.S. at 269 n.22 ( “Some authorities have said that trials in the Star Chamber were public, but that witnesses against the accused were examined privately with no opportunity for him to discredit them. Apparently all authorities agreed that the accused himself was grilled in secret, often tortured . . . .” ); but see John H. Langbein et al., supra note 5, at 575 (calling “quite false” the claim that the Star Chamber “used torture in its investigations,” and suggesting that the tribunal’s infamy arose instead from its “afflictive sanctions,” such as amputation of the ears).
7: See Gannett Co. v. DePasquale, 443 U.S. 368, 387 n.18 (1979) ( “After the abolition of the Star Chamber in 1641, defendants in criminal cases began to acquire many of the rights that are presently embodied in the Sixth Amendment. . . . It was during this period that the public trial first became identified as a right of the accused.” ); In re Oliver, 333 U.S. at 268–69 ( “The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet.” ) (footnotes omitted); Merryman & Perez-Perdomo, supra 2, at 128 (labeling the Star Chamber “[t]he most infamous analogue [to the secret and written criminal trial of the civil law tradition] familiar to us in the common law world” ).
8: Richmond Newspapers, Inc., 448 U.S. at 567–68 ( “We have found nothing to suggest that the presumptive openness of the trial, which English courts were later to call ‘one of the essential qualities of a court of justice,’ was not also an attribute of the judicial systems of colonial America.” ) (quoting Daubney v. Cooper (1829) 109 Eng. Rep. 438, 440); In re Oliver, 333 U.S. at 266–67; see Press-Enter. Co. v. Superior Ct., 464 U.S. 501, 508 (1984) ( “Public jury selection thus was the common practice in America when the Constitution was adopted.” ). Congress did not discuss the public trial right in its debates on the Sixth Amendment. Harold Shapiro, Right to a Public Trial, 41 J. Crim. L. & Criminology 782, 783 (1951).