Public Trial

Presley v. Georgia, 130 S.Ct. 721 (2010)

The Supreme Court reversed a Georgia state court conviction because the trial court excluded the public from jury selection because the courtroom was too small to accommodate the public and the prospective jurors. The Supreme Court held that the right to a public trial is rooted in both the Sixth Amendment right to a public trial, as well as the First Amendment, which guarantees press access to the courts. The Court concluded that the command in prior cases under both the First Amendment and the Sixth Amendment that a decision to close the courtroom must only occur after considering all reasonable alternatives to closure, applies to voir dire. “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” Id. at 725.

Carey v. Musladin, 127 S. Ct. 649 (2006)

Reversing the Ninth Circuit, the Supreme Court held that the defendant’s right to due process was not clearly violated when spectators in the courtroom wore buttons that depicted the face of the murder victim, and habeas relief under the standards of AEDPA was not warranted. This case is distinguishable from prior decisions such as Estelle v. Williams, 425 U.S. 501 (1976) (defendant compelled to wear prison clothing during trial); and Holbrook v. Flynn, 475 U.S. 560 (1986) (troopers sitting in courtroom), because the conduct in this case was purely private – there was no state sponsorship of the courtroom conduct of the spectators.

United States v. Pickard, 733 F.3d 1297 (10th Cir. 2013)

This case contains a useful discussion of the right of litigants to seek to unseal records that are filed in an earlier criminal case. Here, the litigants were defendants who had previously been convicted of criminal offenses based on the testimony of an informant, whose DEA file was submitted to the court by the AUSA, but placed under seal. Years later, the defendants sought to unseal the records.

United States v. Gupta, 699 F.3d 682 (2d Cir. 2012)

Excluding the public entirely from the voir dire portion of defendant’s trial was a Sixth Amendment violation that required vacating the conviction.

United States v. Rivera, 682 F.3d 1223 (9th Cir. 2012)

The trial court excluded the defendant’s family from the sentencing proceeding. The judge thought it was “shameful” and manipulative that the defendant (a motorcycle gang defendant) had his young child, among others, in the courtroom. The Ninth Circuit held that this violated the Sixth Amendment and remanded for sentencing before a different judge.

United States v. Waters, 627 F.3d 345 (9th Cir. 2010)

The trial court erred in barring the public from attending a pre-trial omnibus hearing on various substantive motions and administrative matters.

United States v. Withers, 638 F.3d 1055 (9th Cir. 2010)

The defendant made a colorable claim that the trial court had violated his right to a public trial by ordering all spectators to leave in anticipation of the beginning of jury selection. The transcript simply indicated that the trial judge directed all spectators to leave as the jurors were brought to the courtroom, though it was not clear if this was just a momentary clearing of the courtroom, or if the courtroom remained inaccessible to spectators throughout the jury selection proceedings.

United States v. Agosto-Vega, 617 F.3d 541 (1st Cir. 2010)

Prior to jury selection, the defendant’s family members were instructed to leave the courtroom. The defense objected. The court explained that there was not enough room for the family members and the jurors. This was structural error requiring reversal of the conviction.

Johnson v. Sherry, 586 F.3d 439 (6th Cir. 2009)

Trial counsel was arguably ineffective in failing to object to the closure of the courtroom during the testimony of two prosecution witnesses. A remand was necessary to determine whether there was any strategy involved and if not, whether the deficient performance was prejudicial to the defendant.

Gibbons v. Savage, 555 F.3d 112 (2d Cir. 2009)

Excluding one spectator from the courtroom during voir dire was error and amounts to structural error. However, the structural error was so trivial that it does not require granting a writ.

Owens v. United States, 483 F.3d 48 (1st Cir. 2007)

The trial court may not bar the public from the courtroom because of the need to accommodate the jury pool during jury selection. If the defendant is denied his right to a public trial, a new trial is required without a showing of prejudice. Counsel’s failure to object to the closure would constitute ineffective assistance of counsel.

Hoi Man Yung v. Walker, 468 F.3d 169 (2d Cir. 2006)

The court discusses the requirements of a hearing to close the courtroom when an undercover testifies and claims that his safety and ongoing investigations require that he testify in a closed courtroom, and the prosecutor requests that members of the defendant’s family be excluded as well. The Waller requirement that closure be no broader than necessary (Waller v Georgia, 467 U.S. 39 (1984)) remains the same, but as applied to family members may result in a different finding of necessity. The findings by the state trial court in this case were insufficient. Remand.

Smith v. Hollins, 448 F.3d 533 (2d Cir. 2006)

The state trial court made insufficient findings to support requiring that the defendant’s siblings sit behind a screen during the testimony of an undercover agent.

Carson v. Fischer, 421 F.3d 83 (2d Cir. 2005)

Excluding members of the defendant’s family during the testimony of a witness was error. Violations of the right to a public trial, moreover, are not subject to harmless error review. However, some violations are sufficiently insubstantial that they do not necessitate granting habeas relief. In this case, only one member of the defendant’s family was excused during the testimony of a confidential informant.

United States v. Thunder, 438 F.3d 866 (8th Cir. 2006)

The trial court erred in closing the courtroom during the testimony of the children who were alleged to be victims of the defendant’s sexual assault. Though 18 U.S.C. § 3509(e) permits closure during the testimony of children in certain limited circumstances, the court must make particularized findings before closure is permitted. No showing of actual prejudice is required; closure of the courtroom necessitates reversal of the conviction.

United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005)

The lower court’s decision to seal various parts of the record (i.e., documents and transcripts) in a related case violated the First Amendment.

United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005)

In an effort to protect the integrity of the trial process, the district court entered an order that prohibited the press from publishing the names of jurors whose names were used in open court. This prior restraint violated the First Amendment and was not justified by any compelling Sixth Amendment concern.

United States v. Alcantara, 396 F.3d 189 (2d Cir. 2005)

Conducting the plea colloquy and sentencing in chambers was error. The closure of the proceedings, without notice or an on-the-record finding of necessity warranted setting aside the judgment. See also 18 U.S.C. § 3553(c) (the reason for imposing a particular sentence shall be announced in open court).

United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004)

A district court’s order of detention pending sentencing is a final order that may be appealed to the court of appeals. 18 U.S.C. § 3145(c). In this case, the Second Circuit held that an appeal bond may not be denied based on an ex parte showing to the district court relating to the defendant’s alleged risk of flight and dangerousness. An ex parte proceeding violates the Sixth Amendment public trial right.

United States v. Rutherford, 371 F.3d 634 (9th Cir. 2004)

During the defendant’s tax evasion trial, several IRS agents sat behind the prosecution table. Post-trial interviews with jurors indicated that some of them felt intimidated by the agents. The lower court held that the defendant had to prove that the government acted with the intent to intimidate the jurors. The Ninth Circuit, however, held that the defendant was only required to prove a prejudicial impact on the jury; the defendant was not required to prove that this was the government’s intent. A remand for further development of the record was required. The defendant should be permitted to introduce evidence regarding the jurors’ perceptions of the agents’ conduct and any discussions among the jurors concerning the possibility of IRS retaliation if they voted to acquit.

Walton v. Briley, 361 F.3d 431 (7th Cir. 2004)

Conducting a trial in the evening, after the courthouse has been closed and locked is impermissible under the Sixth Amendment. The failure to object is not a waiver of the right. There was no showing of a knowing and voluntary waiver of his right to a public trial.

ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004)

The trial court erred in closing the voir dire proceedings in Martha Stewart’s case. There was no showing made that jurors would not be candid if the press was allowed in the courtroom during voir dire.

Judd v. Haley, 250 F.3d 1308 (11th Cir. 2001)

The Eleventh recognized that there is a difference between total closure, where all spectators are excused from a portion of the trial, and partial closure, where members of the defendant's family or the press are permitted to remain. Partial closures may be justified by a “substantial reason” for the partial closure, which is a less demanding standard than the Waller standard. The total closure of a courtroom, even for a limited period of time (during one witness's testimony, for example), must satisfy the Waller standard. In Judd, the court concluded that an Alabama trial judge who closed the courtroom entirely during the testimony of a minor sexual assault victim — without any of the Waller steps having been taken — violated the defendant's Sixth Amendment public trial guarantee.

English v. Artuz, 164 F.3d 105 (2d Cir. 1998)

The exclusion of courtroom observers, especially a defendant’s family members and friends, even from part of a criminal trial, is not a step to be taken lightly. The unwarranted exclusion of a defendant’s family member justifies granting habeas corpus relief, and petitioner need not show prejudice. Nor does the doctrine of harmless error apply in such circumstances. In this case, excluding family members because a witness feared for his life if his identity was revealed was insufficient to justify excluding the defendant’s family from the courtroom.

Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997)

In this en banc decision, the Second Circuit reviews the jurisprudence dealing with closing courtrooms and concludes that the lower courts in these consolidated cases acted properly in closing the courtroom during the testimony of undercover police officers in order to preserve their identity.