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17.7 Public Trial Issues

    17.7.1 Public Trial: Generally
    17.7.2 Right To Public Trial: Voir Dire
    17.7.3 Right To Public Trial: Jury Instruction Procedures
    17.7.4 Closing Of Courtroom
    17.7.5 Arguing For Closure Of Trial
    17.7.6 Arguing Against Closure Of Trial
    17.7.7 Public Trial: Unwillingness Of Witness To Testify In Front Of Defendant's Family Is Not Good Cause To Close Courtroom
    17.7.8 Public Trial: Exclusion Of Nondisruptive Children Violates Right To Public Trial
    17.7.9 Public Trial: Closure Of Courtroom Based On Undercover Officer's Safety Concerns -- Requirement Of Good Cause
    17.7.10 Jury View: Presence Of Press And Public

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    See NCJIC 17.7 [Public Trial Issues].

See A Manual On Jury Trial Procedures 2.7.1 [Closed Voir Dire: General Principles].

See also generally, NCJIC 305.16.13 [Public Trial].

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    See NCJIC 10.1.8 [Jury Selection: Right To Public Trial].

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    See NCJIC 309.9.1 [Public Trial].

    See NCJIC 2.8.1 [Presence Of Public During Instruction Of Jury].

See A Manual On Jury Trial Procedures 2.7.1 [Closed Voir Dire: General Principles].

See also generally, NCJIC 305.16.13 [Public Trial].

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RATIONALE: The potential prejudice and need for a cautionary instruction applicable to physical restraints and other security measures is also applicable to closing the courtroom.

POINTS AND AUTHORITIES: As with other security measures, the closing of the courtroom may be the source of substantial prejudice to defendant. (See NCJIC 17.1.2 [Courtroom Security: Sources Of Prejudice To The Defendant].) Accordingly, a limiting instruction on this subject may be appropriate.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 10.1].

CAVEAT: As with most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. (See CAVEAT to NCJIC 297.3.2 [Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter]; see also CAVEAT to NCJIC 17.2.2.1 [Instruction That Shackling Is Routine Practice Not Related To Defendant].)

USE NOTE: Although it is preferable to inform the jury that a security measure is a normal procedure so as to reduce the prejudicial implication to the defendant who is on trial (see NCJIC 17.1.4 [Instruction Should Inform Jury That Security Measures Are Normal Procedures]), it is unlikely that such an explanation would be effective in the case of closing the courtroom unless there is a plausible basis for informing the jury that the closing was a normal procedure.

See A Manual On Jury Trial Procedures 2.7.1 [Closed Voir Dire: General Principles].

See also generally, NCJIC 305.16.13 [Public Trial].

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PRACTICE NOTE: See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 7:4.

See A Manual On Jury Trial Procedures 2.7.1 [Closed Voir Dire: General Principles].

See also generally, NCJIC 305.16.13 [Public Trial].

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See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 7:5.

See A Manual On Jury Trial Procedures 2.7.1 [Closed Voir Dire: General Principles].

See also generally, NCJIC 305.16.13 [Public Trial].

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PRACTICE NOTE: See English v. Artuz (NY 1998) 164 F3d 105, 108 [closure of courtroom due to unwillingness of prospective witness to testify in front of codefendant’s family violated 6th Amendment right to public trial].

See A Manual On Jury Trial Procedures 2.7.1 [Closed Voir Dire: General Principles].

See also generally, NCJIC 305.16.13 [Public Trial].

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PRACTICE NOTE: A court’s order to remove or exclude children from the courtroom solely on the basis of their age is a violation of the right to public trial. (People v. Gomez (NY 1998) 685 NYS2d 448.)

See A Manual On Jury Trial Procedures 2.7.1 [Closed Voir Dire: General Principles].

See also generally, NCJIC 305.16.13 [Public Trial].

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PRACTICE NOTE:  Waller v. Georgia (1984) 467 US 39 [104 SCt 2210; 81 LEd2d 31] established a four-part test for deciding whether trial proceedings may be closed over an objection based on the defendant's 6th Amendment right to public trial.  The test requires that there be an overriding interest that is likely to be prejudiced absent closure, that the closure be no broader than necessary to protect that interest, that reasonable alternatives to closure be considered, and that findings be made to support the closure.  (See also People v. Jones (NY 2001) 750 NE2d 524 [partial or any closure of courtroom implicates 6th Amendment right to public trial and must be justified by overriding interest].)

RESEARCH NOTE:

James F. Fagan, Jr., Close That Door! Closure of Courtroom During Testimony of An Undercover Police Officer, 26 Suffolk U L.Rev. 619-39 (1992).

See A Manual On Jury Trial Procedures 2.7.1 [Closed Voir Dire: General Principles].

See also generally, NCJIC 305.16.13 [Public Trial].

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    17.7.10    Jury View: Presence Of Press And Public

    See NCJIC 17.7.10 [Jury View: Presence Of Press And Public].

See also generally, NCJIC 305.16.13 [Public Trial].