The right to a public trial is protected by the First and Sixth Amendments to the U.S. Constitution. However, the right isn’t absolute and there are some circumstances that justify closing criminal proceedings. This article discusses the meaning of the right to a public trial, why the right exists, and situations that could warrant closing the courtroom to the public.
Is There a Right to a Public Trial?
Generally, yes, there’s a right to a public trial involving criminal prosecutions. The right is twofold; the defendant has a right to a public trial, and the public has a separate right to attend trials. These rights are found in the First and Sixth Amendments to the U.S. Constitution. The U.S. Supreme Court has identified several purposes behind the right to a public trial, some of which include:
- helping to ensure that the defendant is given a fair trial
- providing a public demonstration of fairness
- discouraging perjury, misconduct, and bias, and
- encouraging witnesses to come forward.
What is the Sixth Amendment Right to a Public Trial?
The Sixth Amendment guarantees certain rights to defendants in criminal cases to ensure they receive a fair trial. One of these is the right to have a public trial.
Having a public trial helps ensure that the government (including prosecutors and judges) can’t cut corners, use improper tactics, or otherwise fail to follow the law that governs criminal trials: If the public can see the goings on in court, the proceedings are more likely to comply with the rules that are in place to protect all citizens from abuse of power.
What is the First Amendment Right to a Public Trial?
Among the rights listed in the First Amendment are freedom of speech and the press, and the right to assembly. The U.S. Supreme Court has found that these rights include the right of public access to trials. Like the Sixth Amendment right to public court proceedings, the First Amendment right helps ensure that trials follow the rules.
One of the other purposes served by this right is that it allows the public to see justice done. After a serious crime, there’s often a degree of public outrage: When people can attend a trial or read a news account of it, they’re assured that crimes are being prosecuted.
Are All Parts of a Trial Open to the Public?
Generally, the right to a public trial extends to all stages of a trial, from jury selection to sentencing. The right also applies to pretrial proceedings, such as arraignments and suppression hearings. That said, there are some circumstances when a trial or portions of a trial can be closed to the public.
When Can a Trial Be Closed to the Public?
In a criminal case, either the government or the defendant can request closing the courtroom to the public during court proceedings.
When a party asks the judge to exclude the public from the courtroom, the judge must decide whether closing the courtroom is so necessary that it justifies departing from the constitutional right to public trials. To comply with the Constitution, the following “test” must be met:
- the party seeking to close the proceeding to the public must show an “overriding interest” (something that trumps the right to a public trial) that's likely to result in prejudice (meaning some type of harm to the defense or prosecution)
- the closure must be no broader than necessary to protect that interest
- the court must consider alternatives to closure, and
- the court must make findings that are sufficient to support closing the proceedings.
In making this decision, judges consider whether the party has requested to completely or only partially restrict access to proceedings and whether the party has asked for a permanent or only temporary restriction. The judge must also fully consider alternatives to restricting public access.
Common Exceptions to the Right to a Public Trial
Generally, there’s a strong presumption in favor of keeping trials open to the public. However, in some circumstances, judges will exclude certain people from the courtroom.
For example, most judges exclude a witness from the courtroom until the witness has testified. Excluding witnesses prevents them from tailoring their testimony to match the testimony of other witnesses. In this way, it helps guard against fabricated testimony, or even just testimony that’s unintentionally influenced by what someone else says.
Additionally, certain types of cases normally aren’t open to the public. For instance, juvenile delinquency cases are generally closed to the public for confidentiality purposes.
In other situations, courts have justified restricting public access to court proceedings to:
- preserve order in the court
- protect witnesses, and
- avoid prejudice to the parties involved in the case.
Kicking Spectators Out to Preserve Order in the Court
It's important that the courtroom remain quiet and free of distractions, so that the jury, judge, and attorneys can focus on the evidence as well as legal matters discussed in court.
So, to preserve order in the court, judges are generally justified in removing people who are disruptive or disregard the judge’s orders. For example, a spectator could get booted if they keep talking during the proceedings, or they laugh or make noises indicating disapproval of a witness's testimony. The judge can also kick out someone who refuses to turn off or put away their cell phone, or to follow the court’s other rules.
A judge might also be justified in closing proceedings to the public once the courtroom has reached capacity to prevent overcrowding.
Excluding the Public to Protect Witnesses
Excluding the public during a witness’s testimony is generally justified if the exclusion is necessary to:
- protect the confidentiality of the witness
- prevent intimidation, harassment, or physical harm to the witness, or
- prevent embarrassment or emotional disturbance of the witness.
For example, the public might be excluded during the testimony of an undercover police officer to protect the officer’s confidentiality. In cases involving rape, sexual abuse, or other situations involving graphic evidence, the judge might allow the victim to testify without public spectators in the courtroom to prevent embarrassment. Finally, if the judge determines that a witness has been threatened, intimidated, or harassed, the people responsible for the threats can be excluded from the courtroom.
Exclusion to Avoid Prejudice to the Parties
The purpose of a trial is to get to the truth of what occurred. If the presence of the public or a certain individual in the courtroom could interfere with this truth-seeking function, the judge might find it necessary to restrict access to the courtroom.
For instance, a judge might decide that the presence of particular people in the courtroom could constrain the testimony of a witness or affect the jury’s ability to make an unbiased decision. For example, if a group came into court wearing T-shirts suggesting the defendant is guilty, a judge might have to exclude those people to protect the defendant's right to a fair trial by an unbiased jury. (See, for example, Long v. State, 151 So.3d 498 (Fla. Ct. App. 2014).)
Some courts have also excluded the public entirely in cases involving classified information or other sensitive evidence that would lose its value (perhaps for other cases or investigations) if revealed to the public.
Seeking Legal Advice
If you've been convicted after the court excluded the public from your trial—or refused to exclude spectators who might have negatively influenced the outcome—you should consult with a criminal defense appellate attorney (a lawyer who primarily handles appeals). An appellate attorney should be able to advise you whether anything that happened in your case is potentially grounds for reversal. If you believe you're being wrongfully excluded from a trial, you might consider speaking with a civil rights attorney who is experienced in First Amendment law, especially if your purpose is to report on the trial.