The public trial right, like the speedy trial right, was designed to protect the accused, but it also serves a public function. Public trials ensure that there's an extra layer of accountability as the public can determine whether government officials properly carry out their functions in a way that is not shrouded in secrecy.

In Waller v. Georgia, 467 U.S. 39 (1984), the Supreme Court laid out a four-part test to determine whether court closures are appropriate.  According to the test, trial courts are to consider: 

[1] the party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure. 

This approach mirrors the "strict scrutiny" analysis often seen in constitutional challenges to laws in which the government must advance a "compelling state interest" in order for it to be a constitutionally valid act.  Additionally, in instances in which a court does grant closure, Presley v. Georgia, 558 U.S. 209 (2010) requires that, "the particular interest, and threat to that interest, must be articulated along with the findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

The Sixth Amendment right to a public trial and the public's First Amendment right to access criminal proceedings have the common principle that courts should be open in order to ensure fairness.  Nevertheless, there are instances in which courts have allowed some court proceedings to occur despite being fully or partially closed.

Examples include:

• Closure to prevent witness intimidation.
• Closure to prevent the emotional disturbance of a witness.
• Closure due to age and intellectual capacity of a witness.

Public Trial Right Applies to:

• Suppression Hearings
• Voir Dire
• Trial
• Sentencing (see, e.g., United States v. Thompson, 713 F.3d 388 (8th Cir. 2013)).

REMEDY FOR VIOLATION

In Waller, the Court found that a public trial right violation a “structural error, i.e., an error entitling the defendant to automatic reversal without any inquiry into prejudice.” Id. at 59.  In other words, once defendants demonstrate the violation, they are automatically entitled to relief.

If you are interested in obtaining Training and Technical Assistance (TTA) related to strengthening Sixth Amendment protections in your jurisdiction, click the link below.

PUBLIC TRIAL RESOURCES

CASES

• Presley v. Georgia, 558 U.S. 209 (2010) (per curiam)
• Waller v. Georgia, 467 U.S. 39 (1984)

REGULATIONS

• 28 CFR § 50.9 - Policy with regard to open judicial proceedings.

LAW REVIEW ARTICLES

• Stephen E. Smith, The Right to a Public Trial in the Time of COVID-19, 77 WASH. & LEE L. REV. ONLINE 1 (2020).
• Department of Justice Journal of Federal Law and Practice, April 1, 2019.
• Kristin Saetveit, Close Calls: Defining Courtroom Closures, 68 STAN. L.REV. 897 (2016)
• Stephen E. Smith, The Right to a Public Trial and Closing the Courtroom to Disruptive Spectators, 93 WASH. U. L. REV. 235 (2015).
• Daniel Levitas, Scaling Waller: How Courts Have Eroded the Sixth Amendment Public Trial Right, 59 Emory L. Rev. 493 (2009).
• Lance R. Peterson, A First Amendment-Sixth Amendment Dilemma: Manuel Noriega Pushes the American Judicial System to the Outer Limits of the First Amendment, 25 J. Marshall L. Rev. 563 (1992).
• Goundry, Frederick W. III (1990) "When Can the Courtroom Be Closed in Criminal Proceedings?," University of Baltimore Law Forum: Vol. 21 : No. 1 , Article 3.

OTHER LEGAL SOURCES

• Department of Justice Manual, § 9-5.150.

NEWS ARTICLES

• Judge Orders New Trial for Gigi Jordan in Son’s Killing, By Daniel E. Slotnik, The New York Times, September 25, 2020.
• Coronavirus Containment Collides With U.S. Constitutional Rights, By Jordan S. Rubin, Bloomberg Law, March 31. 2020.

BLOGS, VIDEOS, WEBINARS, PODCASTS

Constitutional Conversation: 6th Amendment - Speedy Trial and Public Trial, Impartial Jury​

Listen to scholars at James Madison's Montpelier discuss: How did the Founding Fathers define a speedy trial and why did they address how long it takes to have a trial? What is a public trial and how open should a trial be?