Proceedings the Right Covers

The public-trial guarantee does not apply with equal force to every event in a prosecution, and its strength at each stage depends on the kind of proceeding involved. Two features do most of the sorting. The first is how closely the proceeding resembles a trial, since the right has been extended to pretrial hearings that bear a resemblance to one, such as a suppression hearing.¹ The second is whether the proceeding has a history of public access and whether openness contributes to how it functions. Those are the measures used to define the press and public's First Amendment right of access, and the Court has suggested that the accused's Sixth Amendment right reaches at least as far.² Both features follow the purposes taught in the last section. Restraining abuse of judicial power, discouraging false testimony, and drawing out witnesses unknown to the defense matter most where adversaries contest facts before a judge or jury and where observers can add something. They matter little in a proceeding whose usefulness depends on secrecy. The sections below take the covered proceedings in turn: the trial itself and contempt hearings, pretrial hearings, jury selection, and finally the grand jury, the historically closed exception. Whether a covered proceeding may nonetheless be closed is a separate question, and the closure test in the section after this one answers it.

Trial and Contempt Hearings

The trial itself is the center of the public-trial guarantee, and the purposes taught earlier in this chapter explain why. A trial is where adversaries contest facts before a judge or jury, so it is where public review of the judge and prosecutor, the fear of detection that restrains false testimony, and the chance that an unknown witness learns of the case all do their work. The Sixth Amendment gives the accused a public trial in all criminal prosecutions, and that guarantee extends to every criminal trial, including a criminal contempt trial.³ It also covers the entire trial, from the impaneling of the jury through the return of the verdict.⁴

The entire-trial rule means that a closure cannot be defended by pointing to how much of the trial stayed open. In Sirratt v. State, an altercation outside the courtroom led the judge to clear out all spectators, and by then twenty-four witnesses had already testified. The exclusion reached only part of the defendant's cross-examination, the final arguments, and the jury instructions. The State argued that most of the trial had been finished before the exclusion, but the Arkansas Supreme Court rejected that argument, reasoning that the guaranty applies to the whole trial and can be violated by exclusion from a part of it, and it ordered a new trial.⁵ The limit on the rule appears in People v. Teitelbaum, where the public was kept out of some thirty-four conferences between the judge and counsel held outside the jury's hearing. The California court found no violation, because the public heard everything the jury heard and the conferences concerned matters that could not properly have been aired before the jury.⁶ Read together, the two cases draw the line at whether the public was shut out of anything the jury saw and heard.

Criminal contempt falls inside the guarantee, and In re Oliver is the decision that extended the right to criminal contempt proceedings.⁷ The extension follows from what the proceeding can do to the person tried. A criminal contempt charge accuses someone of defying or disrupting the court itself, and the sanction can be imprisonment, so the person charged faces the same loss of liberty as any other accused. The tribunal deciding the case often has a personal stake in the outcome, which is the situation where the knowledge that observers are watching does the most to restrain abuse of judicial power. A label such as contempt therefore gives no reason to withhold the safeguards that a public trial provides.

The accused's right is only half of what is at stake when a trial is closed, because the press and public hold a separate First Amendment right to attend the trial itself. In Richmond Newspapers, Inc. v. Virginia the parties agreed that the trial should be closed, and the judge closed it without making findings, without asking whether alternatives would preserve fairness, and without recognizing any press or public right to attend. The Court held that the right to attend criminal trials is implicit in the First Amendment, and that absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.⁹

The parties' agreement cannot supply the missing justification, because the right being asserted is not theirs to give away. The accused may forfeit the Sixth Amendment guarantee by failing to object, but the press and public hold their own right, and neither lawyer speaks for them.¹⁰ Agreement is also weak evidence that closure is needed. Each side may prefer a closed courtroom for reasons unrelated to a fair trial, such as avoiding embarrassment over the weak points of its case, and a rule that deferred to the parties would let those preferences close the courtroom. Requiring the judge to find that closure is necessary puts the decision in the hands of the one participant with no stake in the result. The findings must also reckon with alternatives, because a trial permits a range of ways to protect fairness, including excluding or sequestering witnesses, sequestering jurors, and granting continuances.¹¹ Richmond Newspapers drew that contrast with a pretrial suppression hearing, which the next section takes up, and the full closure test appears later in this chapter.

On an exam stem in which prosecution and defense both ask for a closed trial, the tempting answer treats the parties' agreement as the end of the analysis, when the public's First Amendment claim survives that agreement and turns on whether the judge found that closure was necessary.¹²

Pretrial Hearings

The guarantee does not begin only on the morning the trial opens. It reaches backward into some pretrial hearings, and two of them show how the features introduced above operate. The suppression hearing falls within the accused's own Sixth Amendment right because it resembles a trial. The preliminary hearing falls within the press and public's First Amendment right of access because it has a tradition of openness and benefits from observers. The Court has suggested that the accused's Sixth Amendment right is at least as broad as the access right, so the access reasoning carries weight on the accused's side as well.¹⁴ In each hearing, the coverage can be traced to the purposes taught earlier in this chapter.

A suppression hearing is the pretrial proceeding at which the court decides whether evidence the police obtained may be used at trial, and the Sixth Amendment public-trial right extends to it because it bears a resemblance to a trial.¹⁵ In Waller v. Georgia the Court held that the standards for overriding the right of access, drawn from Globe Newspaper and the first Press-Enterprise decision, also govern the closure of a suppression hearing over the defendant's objection.¹⁶ The resemblance to a trial is practical. Witnesses, often the officers who conducted the search, testify about disputed facts, and a judge decides whether the search was lawful. That ruling can decide the whole prosecution, because if the evidence is excluded the government may have little left with which to prove its charge. The Court reasoned in Waller that the interests in making the judge and prosecutor carry out their duties responsibly, in encouraging witnesses to come forward, and in discouraging perjury are no less pressing in a hearing to suppress wrongfully seized evidence.¹⁷ A court that wants to close such a hearing over the defendant's objection therefore has to justify the closure under the test taught later in this chapter, and the absence of a jury gives it no shortcut.

The preliminary hearing is the proceeding at which a magistrate decides whether the evidence supports holding the accused for trial, and the Court has held that it is presumptively open to the press and public.¹⁸ In Press-Enterprise Co. v. Superior Court a nurse was charged with murdering twelve patients with massive doses of a heart drug. The magistrate granted the defendant's unopposed motion to exclude the public from a preliminary hearing that lasted 41 days, found that national publicity made closure necessary, and sealed the transcript when the hearing ended.¹⁹ The California Supreme Court had read the earlier access decisions as limited to actual trials. The Supreme Court disagreed and applied the two considerations that define the reach of the access right: whether the place and process have historically been open, and whether public access plays a significant positive role in how the process functions.²⁰

Both considerations pointed toward openness. Preliminary hearings before neutral and detached magistrates have been open from early times, and the near-uniform practice of state and federal courts has been to conduct them in open court. The function of the hearing also gave observers something to contribute. In many cases the preliminary hearing is the final and most important step in the prosecution, the accused may appear, be represented, cross-examine witnesses, present exculpatory evidence, and challenge illegally obtained evidence, and the hearing is often the only occasion on which the public can watch the system at work.²¹ The Court added that the absence of a jury makes public observation more important, since no panel of citizens is present to check the magistrate.²² Students lose this issue when they reason that a hearing before a magistrate that cannot end in conviction is not covered, because the Court held that the label on the proceeding does not resolve the access question, particularly where the hearing functions much like a full-scale trial.²³

Coverage and closability are separate questions, and keeping them apart explains how the two proceedings above can both be covered and still come out differently. In Waller, coverage meant that the closure of the suppression hearing had to satisfy the closure test, so the court could not simply act on its own view that closure was wise.²⁴ In the preliminary-hearing setting, the presumption of openness can be overcome when the court makes specific findings that closure would prevent publicity creating a substantial probability of prejudice to the defendant's fair-trial right, and that reasonable alternatives cannot adequately protect that right.²⁵ For a pretrial proceeding that would generate prejudicial publicity, the alternatives the sources identify include extensive questioning of prospective jurors to find the biased ones, continuances, and a change of venue.²⁶ The type of proceeding therefore decides whether the test applies, and the findings and the available alternatives decide whether closure survives it.

The same two considerations suggest that other pretrial hearings, such as bail hearings, are also open, though that is a likely extension of the reasoning and not a holding.²⁷ The one exception the sources identify is the grand jury, whose proceedings have traditionally been secret and which the next section takes up.²⁸

Jury Selection

The accused's right to a public trial starts before the first witness is sworn. It reaches the impaneling of the jury, the stage called voir dire, in which the judge and lawyers question prospective jurors to find out which of them can decide the case fairly.³⁴ That coverage follows from the entire-trial rule taught above, since a guarantee that runs from the impaneling of the jury through the return of the verdict is violated when the public is shut out of any part of that span.³⁵ Jury selection is also where closure is most tempting. A venire, meaning the panel of citizens summoned to be questioned as prospective jurors, can fill a small courtroom, and a judge looking at a packed gallery may see the spectators as the easiest people to remove.

Open voir dire serves the functions that justify the public-trial right generally. A public trial is a safeguard against using the courts as instruments of persecution, because the knowledge that proceedings are subject to review in public opinion restrains abuse of judicial power.³⁶ Selection draws on that function directly. The people who will decide guilt are chosen at this stage, through the judge's rulings on challenges and the lawyers' decisions about whom to strike, and a process conducted behind closed doors would let a biased or hand-picked panel be assembled with no one outside the room positioned to notice. Spectators in the gallery are that outside check. The same reasoning supports the separate First Amendment right of the press and public, which the Court extended to voir dire by applying the two considerations that define the access right's reach: a historic tradition of openness for the proceeding, and the contribution public access makes to how the proceeding functions.³⁷

The earliest illustration in the sources comes from a federal court of appeals. In United States v. Sorrentino, a Mann Act conspiracy prosecution, the trial judge excluded the public on the first day, while the jury was selected, and relaxed the order on the last three days, when the testimony was taken.³⁸ The government argued that the defendant had received a public trial in the constitutional sense because the public watched all of the evidence. The court rejected the argument. The guarantee applies to the entire trial, including the portion devoted to selecting the jury, so the closure was reversible error unless the defendant had waived the right.³⁹ Sorrentino is the mirror image of Sirratt, where the closure came near the end of the trial. In both, the court refused to excuse a closure by pointing to the stretch of the trial that stayed open.

The Supreme Court's modern illustration involves a logistical closure rather than a deliberate one. In Presley v. Georgia the judge would not let the defendant's uncle remain in the courtroom during voir dire, explaining that prospective jurors could not mingle with him and needed all of the seats.⁴⁰ The Court held that the exclusion violated the Sixth Amendment, because the trial court had completely excluded the public from jury selection in a courtroom of limited size without considering options for accommodating both the public and the potential jurors.⁴¹ The fact that carried the result was the absence of any effort. The judge treated crowding as the end of the question when it should have been the start of a search for a way to seat at least one observer. A trial court must therefore make every reasonable effort to accommodate public attendance at jury selection, a duty whose content is developed under the closure test later in this chapter.⁴²

The defendant's burden on this claim is light. A defendant who raises the objection in the trial court does not have to establish prejudice in any specific way, and excluding the public from jury selection merely because prospective jurors would take up all the seats can violate the right, as the parties assumed in Weaver v. Massachusetts.⁴³ The reason for dispensing with proof of prejudice follows from what the right protects. The benefit of a public proceeding is a restraint on abuse that operates unseen, and a defendant asked to show what an absent audience would have prevented would be asked to prove something the closure itself made impossible to observe. The burden that remains is timing, because a defendant who fails to object to the closure may find the claim reviewed only for plain error.⁴⁴

The access right has its own decision on voir dire, and that decision also shows what a permissible closure looks like. In the first Press-Enterprise Co. v. Superior Court decision, known as Press-Enterprise I, the Court held that the right of access extends to the voir dire examination of jurors.⁴⁵ The right is not absolute. A prospective juror's privacy interest in personal matters might justify closing a very limited segment of the voir dire, but the proper procedure is to tell prospective jurors that they may make such a request and to have the judge decide first whether the concern has a valid basis and, if so, whether to excuse the juror or order limited closure.⁴⁶ A juror who must discuss a sensitive personal matter can therefore be questioned privately for that segment alone, while the rest of selection stays open.

The contrast with Presley shows which facts decide closability. In Presley the exclusion was total, rested on logistical convenience, and followed no search for an accommodation. In Press-Enterprise I the permissible closure is confined to one segment, rests on a particular juror's privacy concern, and follows an individualized decision by the judge. Coverage settles that a court must justify a closure at all, and the scope of the closure, the reason offered for it, and the judge's process settle whether the justification succeeds.

On an exam stem that describes a closed voir dire, the usual error is to treat jury selection as a preliminary step that sits outside the trial, when the guarantee covers the impaneling of the jury and the closure needs a justification beyond crowding or convenience.⁴⁸

Grand Jury Exception

The presumption of openness that governs trials and most pretrial hearings stops at one proceeding, the grand jury. The grand jury is the body of citizens that hears the prosecutor's evidence and decides whether to bring charges, and its sessions have traditionally been closed. That history matters because of how the Court decides whether the access right reaches a proceeding. It asks whether the place and process have historically been open to the press and public, and whether public access plays a significant positive role in how the process functions.⁵¹ In Press-Enterprise Co. v. Superior Court both considerations favored openness for preliminary hearings, and the Court drew the contrast directly: grand jury proceedings have traditionally been secret, while preliminary hearings before neutral and detached magistrates have been open from early times.⁵² The grand jury is therefore the one historically closed exception to the pattern of openness the later cases built.⁵³ Even the dissenting Justice in that case, who would have read the access right more narrowly, described grand juries as historically secret.⁵⁴

Federal Rule of Criminal Procedure 6(e)(5) turns that tradition into an instruction to the court: subject to any right to an open hearing in a contempt proceeding, the court must close any hearing to the extent necessary to prevent disclosure of a matter occurring before a grand jury.⁵⁵ Each part of the sentence does its own work. The word must removes the discretion a judge has when a party asks to close an ordinary proceeding. The rule has already put grand jury secrecy on the scale, so the court's task is to measure how much of the hearing would reveal protected matter, and it does not need to be persuaded case by case that secrecy matters. The phrase to the extent necessary then limits the closure. Portions of a hearing that reveal nothing about what occurred before the grand jury stay open, which keeps the rule from swallowing the presumption of openness merely because a hearing concerns an indictment. The opening clause preserves whatever right to an open hearing a contempt proceeding carries, so Rule 6(e)(5) does not override the contempt-hearing guarantee taught earlier in this chapter.⁵⁶

The preliminary hearing in Press-Enterprise supplies the opposite pole. The defendant moved to exclude the public, the prosecution did not oppose the motion, and the magistrate granted it, yet the hearing stayed presumptively open, and closure could stand only on specific findings that publicity would create a substantial probability of prejudice and that reasonable alternatives could not protect the fair-trial right.⁵⁸ The fact that separates the two situations is what the hearing would reveal. Closure under Rule 6(e)(5) rests on the content of the proceeding, namely grand jury matter, while a closure sought because the parties prefer privacy rests on nothing the rule recognizes. A preliminary hearing is not a grand jury session, even though both come before trial and both involve a prosecutor's evidence. The preliminary hearing has an open tradition and an adversarial format in which the accused may appear, be represented, cross-examine witnesses, and present exculpatory evidence, and the grand jury has a tradition of secrecy.⁵⁹