Federal Desk BookConstitution Annotated

Sixth Amendment — Right to a Public Trial

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.

Essays on this page (5)

Amdt6.3 Right to a Public Trial

Amdt6.3.1 Overview of Right to a Public Trial

The Sixth Amendment guarantees criminal defendants the right to be tried in public.1 The Supreme Court has interpreted this right to apply to criminal trials and certain important pre-trial proceedings,2 although the Court has also recognized that the right is subject to limitation where overriding interests require the exclusion of all or some members of the public from the courtroom.3 The Sixth Amendment public trial right only protects the defendant,4 but members of the public have the right to attend criminal proceedings under the First Amendment.5 The Supreme Court has carefully avoided calling the First and Sixth Amendment public trial rights coextensive.6 The Court has made clear, however, that the Sixth Amendment offers criminal defendants at least as much protection from closed proceedings as the First Amendment offers the public.7 To a more limited extent, the Court has also determined that due process plays some role in protecting the accused from secret proceedings.8

Notes
  1. Presley v. Georgia, 558 U.S. 209, 212 (2010). As noted elsewhere, the Court held the public trial right applicable against the states in In re Oliver, 333 U.S. 257, 272–73 (1948). See Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights (discussing the due process clause and incorporation). ↩
  2. Waller v. Georgia, 467 U.S. 39, 46–47 (1984). ↩
  3. Id. at 48. ↩
  4. See Gannett Co. v. DePasquale, 443 U.S. 368, 391 (1979) ↩
  5. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980); see Amdt1.9.1 Overview of Freedom of the Press to Amdt1.10.1 Historical Background on Freedoms of Assembly and Petition (discussing public trial rights). ↩
  6. Presley, 558 U.S. at 212–13. ↩
  7. Id. ↩
  8. See Levine v. United States, 362 U.S. 610, 616 (1960); see also Fifth Amendment (discussing procedural due process rights on confessions in criminal cases). ↩

Amdt6.3.2 Historical Background on Right to a Public Trial

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

Notes
  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). ↩

Amdt6.3.3 Right to a Public Trial Doctrine

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

Notes
  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). ↩

Amdt6.3.4 Scope of Right to a Public Trial

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:

[T]he party seeking to close the hearing must advance an overriding interest that is

likely to be prejudiced, the closure must be no broader than necessary to protect that

interest, the trial court must consider reasonable alternatives to closing the

proceeding, and it must make findings adequate to support the closure.5

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

Notes
  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. ↩