Right to a Public Trial Doctrine

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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.

Supreme Court precedent establishes that the Sixth Amendment public trial right applies not only to criminal trials themselves,1 but also to at least two types of pre-trial proceedings: hearings on motions to suppress evidence2 and voir dire (when potential jurors are questioned during jury selection).3 Such pre-trial proceedings, the Court has reasoned, can carry an importance commensurate with the trial itself4 and, in the case of voir dire, were traditionally open to the public at common law.5 Furthermore, guaranteeing a defendant’s right to have such proceedings held openly vindicates the public trial right’s object of harnessing the scrutiny of the community as a check against arbitrary, unfair, or irregular proceedings.6 The Supreme Court has never considered whether the public trial right applies at sentencing.7

In two cases, the Court appeared to take contrasting positions as to whether the public trial right applies to one particular type of criminal proceeding: summary prosecutions for criminal contempt of court. Criminal contempt prosecutions are, in some circumstances, held as summary proceedings “to punish certain conduct committed in open court without notice, testimony or hearing.” 8 In In re Oliver, decided in 1948, the Court held that it violated an accused’s right to a public trial for a court to summarily try, convict, and sentence him in a secret grand jury proceeding (conducted by a state court judge acting as a one-man grand jury, in that case) for committing contempt by providing false and evasive testimony during the proceeding.9 The Court seemed to ground this holding on the conclusion that the Fourteenth Amendment Due Process Clause incorporated the Sixth Amendment public trial right, making it applicable against the states.10 Nonetheless, twelve years later in Levine v. United States, another case involving a recalcitrant grand jury witness convicted of contempt in a closed proceeding, the Court stated flatly that “[c]riminal contempt proceedings are not within ‘all criminal prosecutions’ to which th[e Sixth] Amendment applies.” 11 Levine—authored by Justice Felix Frankfurter, who had dissented in In re Oliver—held that only the Due Process Clause, and not the Sixth Amendment (either directly or as made applicable to the states via incorporation through the Fourteen Amendment), protected an accused during a criminal contempt proceeding.12 Further, Levine held that the exclusion of the public from the courtroom during the proceeding did not violate the more flexible due process protection so long as the defendant did not specifically object to the exclusion.13

In Bloom v. Illinois, decided eight years after Levine, the Court called Levine into doubt by holding that a different aspect of the Sixth Amendment—the jury trial clause—applies to some criminal contempt prosecutions.14 Neither Levine nor In re Oliver, however, has been expressly overruled.15 Whether the public trial right applies to criminal contempt proceedings thus remains unclear.16

As mentioned above, the Sixth Amendment public trial right belongs only to the criminal defendant and cannot be asserted by members of the press or public.17 Members of the public may challenge their exclusion from a criminal trial under the First Amendment, however,18 and as discussed in the next section, such First Amendment challenges appear to draw the same analysis as challenges to the closure of a criminal trial brought under the Sixth Amendment.19

1: In re Oliver, 333 U.S. 257, 265 (1948).
2: Waller v. Georgia, 467 U.S. 39, 47 (1984) ( “[W]e hold that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests [governing the closure of public trials].” ).
3: Presley v. Georgia, 558 U.S. 209, 213 (2010) ( “[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.” ); see also Weaver v. Massachusetts, No. 16-240, slip op. at 3 (U.S. June 22, 2017) ( “Presley made it clear that the public-trial right extends to jury selection as well as to other portions of the trial.” ). Before Presley, “Massachusetts courts would often close courtrooms to the public during jury selection, in particular during murder trials.” ) (citation omitted).
4: Waller, 467 U.S. at 46 ( “[S]uppression hearings often are as important as the trial itself.” ).
5: Press-Enter. Co. v. Superior Ct., 464 U.S. 501, 508 (1984).
6: Id. ( “[T]he sure knowledge that anyone is free to attend [a criminal trial] gives assurance that established procedures are being followed and that deviations will become known.” ); Waller, 467 U.S. at 46 ( “The requirement of a public trial is for the benefit of the accused . . . that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions . . . ” ) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)).
7: 6 Wayne R. LaFave et al., Criminal Procedure § 24.1(a) (4th ed. 2020) (citing lower court opinions for the proposition that “[a]lthough the Supreme Court has not held whether the right to a public trial extends to sentencing proceedings, there is little doubt that it does” ).
8: In re Oliver, 333 U.S. at 274.
9: Id. at 272–73 ( “In view of this nation’s historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment’s guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sentenced to prison.” ).
10: See id. (relying upon “the universal requirement of our federal and state governments that criminal trials be public” to support the conclusion that due process prohibits secret trials); Presley, 558 U.S. at 212 ( “The Court in In re Oliver . . . made it clear that [the Sixth Amendment public trial] right extends to the States.” ); but see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 591 n.16 (1980) (Brennan, J., concurring in judgment) ( “Notably, Oliver did not rest upon the simple incorporation of the Sixth Amendment into the Fourteenth, but upon notions intrinsic to due process . . . .” ).
11: 362 U.S. 610, 616 (1960).
12: Id. at 616–17 ( “Inasmuch as the petitioner’s claim thus derives from the Due Process Clause and not from one of the explicitly defined procedural safeguards of the Constitution, decision must turn on the particular circumstances of the case, and not upon a question-begging because abstract and absolute right to a ‘public trial.’” ).
13: Id. at 619 ( “The continuing exclusion of the public in this case is not . . . deemed contrary to the requirements of the Due Process Clause without a request having been made to the trial judge to open the courtroom . . . .” ).
14: See Bloom v. Illinois, 391 U.S. 194, 198 (1968) ( “Our deliberations have convinced us . . . that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution.” ). Bloom included a “but cf.” citation to Levine after stating that “[i]t has . . . been recognized that the defendant in criminal contempt proceedings is entitled to a public trial before an unbiased judge.” Id. at 205.
15: See, e.g., id. at 205 (citing In re Oliver with approval and acknowledging without overruling Levine).
16: See id.
17: Gannett, 443 U.S. at 391 ( “[M]embers of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials.” ).
18: Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 at 580 (1980) ( “We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment . . . ” ) (footnotes omitted).
19: Amdt6.2.4 Early Doctrine on Right to a Speedy Trial to Amdt6.2.9 Prejudice and Right to a Speedy Trial (discussing scope of the right to a speedy trial).