Sixth Amendment:

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.

The Supreme Court has determined that the right to a public trial, like most constitutional safeguards, is not absolute but is instead subject to balancing against countervailing governmental or public interests.1 As the Court summarized in the 2017 case of Weaver v. Massachusetts, “courtroom closure is to be avoided, but . . . there are some circumstances when it is justified. The problems that may be encountered by trial courts in deciding whether some closures are necessary, or even in deciding which members of the public should be admitted when seats are scarce, are difficult ones.” 2 Three decades earlier, in Waller v. Georgia, the Court held that the test that governs First Amendment claims against the closure of criminal proceedings also governs public trial claims brought by criminal defendants under the Sixth Amendment.3 The Waller Court, drawing from the First Amendment case of Press-Enterprise Co. v. Superior Court,4 articulated this test as follows:

In Waller and the 2010 case Presley v. Georgia, the Court clarified aspects of the test. First, “overriding interests” favoring closure probably do not include preventing risks inherent to all open trials (such as the risk that the jury might overhear prejudicial comments from the gallery), absent a “specific threat or incident” that aggravates a risk in a particular case.6 Second, courts must narrowly tailor any closure of proceedings to the specific subset of the attending public and the specific portion of the proceedings that gives rise to the overriding interest in closure.7 Thus, in the context of voir dire, an interest in protecting prospective jurors from embarrassment only justifies closure when a prospective juror requests privacy in answering a question.8 Finally, a trial court must consider reasonable alternatives to closure before excluding the public from proceedings, even if the parties do not propose any such alternatives.9

On how to remedy a violation of the public trial right, the Supreme Court has held that a defendant who has suffered such a violation need not show prejudice to obtain relief,10 so long as the defendant preserves the issue by objecting and raising it on direct appeal.11 This rule of automatic relief rests on the notion that the benefits of a public trial, despite carrying enough significance to warrant express protection in the Bill of Rights, are “frequently intangible, difficult to prove, or a matter of chance.” 12 Entitlement to relief for a preserved violation of the public trial right, however, does not necessarily entail entitlement to a new trial.13 “Rather, the remedy should be appropriate to the violation.” 14 In Waller, where the violation occurred in the form of a closed pre-trial suppression hearing, and where the defendant was thereafter convicted in an open trial, the Court ordered a new suppression hearing. The Court instructed, however, that a new trial should follow only if the public suppression hearing resulted in a material change to the scope of admissible evidence or the parties’ positions.15

Footnotes

1

Presley v. Georgia, 558 U.S. 209, 213 (2010); Waller v. Georgia, 467 U.S. 39, 47–48 (1984).

2

No. 16-240, slip op. at 8 (U.S. June 22, 2017).

3

Waller, 467 U.S. at 47.

4

464 U.S. 501, 510 (1984).

5

Waller, 467 U.S. at 48. The Court reaffirmed this formulation as the controlling test in Presley. 558 U.S. at 214.

6

Id. at 215.

7

See Waller, 467 U.S. at 49 (noting that prosecutorial concern for the privacy of individuals mentioned on tapes to be played at suppression hearing would only have justified closure of two and half hours of the seven-day hearing).

8

Press-Enter. Co. v. Superior Ct., 464 U.S. 501, 512 (1984).

9

Presley, 558 U.S. at 214 ( “[T]rial courts are required to consider alternatives to closure even when they are not offered by the parties . . . ” ); Waller, 467 U.S. at 48.

10

Waller, 467 U.S. at 49–50; see also United States v. Gonzalez-Lopez, 548 U.S. 140, 149 (2006) (citing Waller for the proposition that violations of the right to public trial are structural and not subject to harmless error analysis); Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (same).

11

Weaver, slip op. at 9. In contrast, to prevail on a claim of ineffective assistance of counsel on the ground that defense counsel incompetently failed to object to a courtroom closure, the defendant must show “either a reasonable probability of a different outcome in his or her case or . . . that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair.” Id. at 12.

12

Waller, 467 U.S. at 49 n.9; see also Weaver, slip op. at 9 ( “[A] public-trial violation is structural . . . because of the ‘difficulty of assessing the effect of the error.’” ) (quoting Gonzalez-Lopez, 548 U.S. at 149 n.4).

13

Id. at 50.

14

Id.

15

Id.