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300.25 Right To Public Trial

    300.25.1 Exclusion Of Public From Trial May Violate The Federal Constitution
    300.25.2 Constitutional Claims: Exclusion Of Defendant’s Family Members From Courtroom May Violate Right To Public Trial
    300.25.3 Constitutional Claims: Public Trial: Conducting Portion Of Trial In Chambers May Violate Right To Public Trial
    300.25.4 Public Trial: 6th Amendment

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    300.25.1    Constitutional Claims: Exclusion Of Public From Trial May Violate The Federal Constitution

PRACTICE NOTE: The federal constitutional right to a public trial (6th and 14th Amendments) which requires that all proceedings be open to the public unless good cause for closure is shown or the defense waives the public trial right. (Waller v. Georgia (1984) 467 US 39, 49, n 9 [104 SCt 2210; 81 LEd2d 31]; Wiggins v. McKaskle (1984) 465 US 168, 177-178, fn 8 [104 SCt 944; 79 LEd2d 122]; see also Arizona v. Fulminante (1991) 499 US 279 [111 SCt 1246; 113 LEd2d 302, 331] [holding that rights such as public trial are structural]; English v. Artuz (2nd Cir. 1998) 164 F3d 105; People v. Harris (CA 1992) 10 CA4th 672, 685 [12 CR 758] [conducting portion of voir dire proceedings in chambers violated defendant's right to public trial, even absent a showing of prejudice]; also United States v. Sorrentino (3d Cir. 1949) 175 F2d 721, 722 [Sixth Amendment right to a public trial applies to the entire trial]; LaFave, Israel, & King, 5 Crim. Proc. §§ 24.1(a) (2d ed. 1999) [the Sixth Amendment right to a public trial "covers the entire trial, including the impaneling of the jury and the return of the verdict"]; but see United States v. Ivester (9th Cir. 2003) 316 F3d 955 [Sixth Amendment right to public trial does not extend to courtroom activities involving "routine administrative matters that have no bearing" on defendant’s guilt or innocence]; United States v. Edwards (5th Cir. 2002) 303 F3d 606, 616 [right to a public trial does not extend to every moment of trial; "[w]e must first determine whether Waller applies to" the court’s decision to empanel an anonymous jury]; Peterson v. Williams (2d Cir. 1996) 85 F3d 39, 42-43 [unjustified closure is too trivial to violate the Sixth Amendment where closure does not undermine the values furthered by the public trial guarantee]; United States v. Norris (5th Cir. 1986) 780 F2d 1207, 1210 ["[n]on-public exchanges between counsel and the court on such technical legal issues and routine administrative problems do not hinder the objectives which the Court in Waller observed were fostered by public trials"].)

RESEARCH NOTES:

See generally, NCJIC 305.16.13 [Public Trial].

See generally, Hollander & Bergman, Everytrial Criminal Defense Resource Book, (West 1999) § 7:1-3.

Wharton’s Criminal Procedure (West, 13th ed. 1989) § 391.

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    300.25.2    Constitutional Claims: Exclusion Of Defendant’s Family Members From Courtroom May Violate Right To Public Trial

PRACTICE NOTE: See Walker v. State (MD 1998) 709 A.2d 177, 181.

RESEARCH NOTES:

See generally, NCJIC 305.16.13 [Public Trial].

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    300.25.3    Constitutional Claims:  Public Trial -- Conducting Portion Of Trial In Chambers May Violate Right To Public Trial

PRACTICE NOTE: See People v. Harris (CA 1992) 10 CA4th 672, 685 [12 CR 2d 758] [conducting portion of voir dire proceedings in chambers violated defendant’s right to public trial, even absent a showing of prejudice].

    See also NCJIC 10.1.2 [Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions].

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

RESEARCH NOTES:

See generally, NCJIC 305.16.13 [Public Trial].

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    300.25.4    Public Trial: 6th Amendment

PRACTICE NOTE: Most cases which have discussed procedural requirements have done so in the context of press exclusions under the First Amendment. (See, e.g., Press-Enterprise Co. v. Superior Court of California, 464 US 501, 510 (1984); United States v. Brooklier, 685 F2d 1162, 1167-68 (9th Cir. 1982); Sacramento Bee v. United States Dist. Court, 656 F2d 477, 482 (9th Cir. 1981), cert. denied, 456 US 983, 72 LEd 2d 861, 102 SCt 2257 (1982).) Any doubt about whether procedural protections would apply in the Sixth Amendment context was resolved by Waller v. Georgia, 467 US 39, 81 LEd2d 31, 104 SCt 2210 (1984), where the Court stated:

There can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.

(467 US at 46; see also United States v. Sherlock, 962 F2d 1349, 1358 (9th Cir. 1992).)