Stephen J. Harper. handout photo
Stephen J. Harper is director of programs for the Institute of Continuing Legal Education in Georgia. He has participated in more than 1,000 criminal trials as prosecutor, defense counsel and judge. He was the senior and managing partner for several large military law offices and has taught constitutional law at West Point. He has served as an adjunct professor at the University of Georgia School of Law since 1998 and teaches in the area of trial practice, with an emphasis on evidentiary issues. ()

“Historically both civil and criminal trial has been presumptively open.” See Richmond Newspapers Inc., v. Virginia, 448 U.S. 555, 580 (1980).

In Richmond the court stated, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. … Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.”

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the court stated that, “[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State’s justification in denying access must be a weighty one. Where … the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Id., at 606-607, 102 S.Ct., at 2620.

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

The First and Sixth Amendments to the United States Constitution are implicated and made applicable to the states via the “Due Process” clause of the 14th Amendment. The defendant’s right under the Sixth Amendment is no less protected than its First Amendment companion. In Press-Enterprise Co. v. Superior Court of Calif., Riverside City, 464 U.S. 501 (1984), the court held that the right to public trial extends beyond the accused under the Sixth Amendment and can be invoked under the First Amendment pursuant to its function in preserving free public discussion of governmental affairs.

In Waller v. Georgia, 467 U.S. 39 (1984) the court established a four-part test to determine whether complete closure of the proceeding to the public during a suppression hearing was constitutionally permissible. The test requires the following: (1) the party seeking “closure” must advance an overriding interest that is likely to be prejudiced, (2) closure is no broader than necessary, (3) reasonable alternatives must be considered and (4) the court must make adequate findings to support the closure.

In Waller, the court answered three questions in holding that: (1) the Sixth Amendment applies to a suppression hearing, (2) the right was violated and (3) the appropriate remedy was less than a reversal of the conviction. The court stated, “The parties do not question the consistent view of the lower federal courts that the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee. We agree with that view, but we do not think it requires a new trial in this case. Rather, the remedy should be appropriate to the violation.” The court reversed and remanded the case for a new suppression hearing and stated that if evidence at the new hearing, which was admitted during the trial, was suppressed, a new trial may be required.

Voir dire falls under the protections of the Sixth Amendment. In Presley v. Georgia, 558 U.S. 209 (2010), the public was excluded from voir dire. Here the lone observer, the defendant’s uncle, was excluded from the proceedings by the trial judge.

In its opinion, the U.S. Supreme Court allowed for exceptions to that general rule, giving way to other rights or interests such as the defendant’s right to a fair trial or the government’s interest in preventing disclosure of sensitive information. The opinion went on to state that a judge could determine that closure was necessary to guard against improper communications with jurors or safety concerns, but such a decision must be reviewed on a case-by-case basis and the trial judge must specifically articulate the reasons and findings in order to allow the appellate court to determine whether closure was proper. The court reversed the conviction because, even assuming arguendo that the overriding reasons existed, the trial court had not considered alternatives. The court noted that exceptions are rare and require a delicate balance.

The Georgia Supreme Court in Presley had incorrectly held that the trial court was not required to consider [Waller] alternatives absent presentation by the defendant to the court of alternatives he wanted the court to consider. On motion for new trial, Presley presented evidence regarding how the court could have been configured to allow the public to attend. The trial judge in ruling on the motion said that it was up to his discretion to determine “what’s comfortable” and that it was totally up to him to decide whether he wanted family members to mingle with the jury where their comments could be overheard.

The U.S. Supreme Court, chiding the opinion of the Supreme Court of Georgia, said that its opinion in Waller specifically required consideration of alternatives, even if the defendant suggested none, and that the right also extends to pre-trial motions to suppress. The court in Presley said that if the mere possibility of communication with jurors was all that was required to justify closing the courtroom, any trial would be subject to closure and the Constitution would mean nothing. The case was reversed and remanded.

In his Presley dissent, Justice Clarence Thomas said that the majority improperly concluded that Waller and Press-Enterprise had settled the issue of the Sixth Amendment’s application to voir dire. Then-Chief Justice Leah Sears said in her dissent in the Supreme Court of Georgia’s opinion in Presley that, “A room that is so small that it cannot accommodate the public is a room that is too small to accommodate a constitutional criminal trial.”

In U.S. v. Cervantes, 706 F.3d 603 (Fifth Circuit 2013), the federal magistrate limited each defendant to having three family members attend the voir dire. The considerations were limited space, nature of the proceedings and desire to minimize disruptions. The Fifth Circuit held that the defendant had not been deprived of his right to a public trial and that substantial reasons existed for this “partial” closure. The allowance of three family members, when coupled with the general public’s access, protected the defendants’ constitutional interests in a public trial, which in Waller were articulated as: (1) ensure a fair trial, (2) remind judge and prosecutor of their responsibility to the accused, (3) encourage witnesses to come forward and (4) discourage perjury.

Later in Cervantes the judge removed two of Cervantes’ relatives from the courtroom after their child fell asleep multiple times. These circumstances constituted a “partial” closure. The court stated, “When a criminal proceeding is only partially closed, the court must ‘look to the particular circumstances of the case to see if the defendant will still receive the safeguards of the public trial guarantee.’ United States v. Osborne, 68 F.3d (5th Cir. 1995). This is because ‘the partial closing of court proceedings does not raise the same constitutional concerns as a total closure because an audience remains to ensure the fairness of the proceedings.’

Partial closure of a courtroom during a criminal proceeding is a constitutional question reviewed de novo, and the court will affirm so long as the lower court had a “substantial reason” for partially closing a proceeding.”

In Steadman v. State, 328 S.W.3d 566 (TX App. 2010), three of the defendant’s family members were excluded during voir dire by the court. Other members of the public were present. So, there was not a complete closure. The Texas Court of Appeals applied the Waller test and remitted that case for findings by the trial judge regarding Waller issues. The trial judge found that there was space for 60 and that 60 venire had been called; the case was going to be emotionally charged; space on the sides of the gallery was very narrow and anyone standing (i.e., family members) would be very close to some of the potential jurors.

The Texas Court of Appeals held that the Waller test was met and the defendant’s constitutional right to a public trial had not been denied, concluding that compelling security reasons existed for the partial closure of the proceeding during voir dire. On appeal the Texas Court of Criminal Appeals reversed and remanded for a new trial, concluding that the articulated reasons for closure did not “override” defendant’s compelling interest in having family members present. The court said regarding jury pool contamination that there was no particular reason to suppose the family members would attempt to speak with, communicate with or influence the jury just because of proximity and that it was too speculative to justify closure to the public. Also, the judge could have instructed the prospective jurors not to engage the family, which was suggested in Presley v. Georgia.

Regarding security, the court said that the trial judge’s concerns were insufficiently documented and that “high emotions” attend any number of criminal cases, which absent other verifiable indications was not an overriding reason to close the proceeding. Lastly regarding exploration of alternatives, the alternative of dividing the venire to reduce congestion [and improve security] or putting potential jurors in the box to free up space in the gallery for family should have been considered, Steadman v. State, 360 S.W.3d 499 (2012):

In Garey v. U.S., 2010 WL 2507834 (M.D. Georgia 2010), a court security officer on his own and without the judge’s knowledge locked the courtroom and refused entry to a newspaper reporter and informed the reporter that it was the court’s policy not to allow the public in during voir dire. The next day, after it was brought to the court’s attention, the judge corrected the situation. This amounted to a complete closure and so raised the specter of the Sixth and First Amendments, which meant that it was not subject to a “harmless error analysis.”

However, the situation was susceptible to a “trivial” closure analysis. This analysis requires an evaluation of the U.S. Supreme Court’s values of a public trial outlined in Waller. The issue is whether the conduct “subverts the values the drafters of the Sixth Amendment sought to protect.” To determine whether a closure was too trivial to implicate the Sixth Amendment guarantee, the appellate court must determine whether the closure involved the values that the right to a public trial serves.

These values have been articulated in Peterson v. Williams, 85 F.3d 39 (2nd Cir. 1996) and Waller as: (1) to ensure a fair trial, (2) to remind the prosecutor and the judge of their responsibility to the accused and the importance of their functions, (3) to encourage witnesses to come forward, and (4) to discourage perjury, Peterson, 85 F.3d at 43; see also Waller, 467 U.S. at 46–47, 104 S.Ct. 2210, 81 L.Ed.2d 31.

In Garey the court concluded that values 3 and 4 were not involved because no witnesses had testified, and values 1 and 2 were not subverted. The conduct was “too trivial” to require the conviction to be vacated. The Second Circuit Court of Appeals in Gibbons v. Savage, 555 F.3d 112 (2009), cert. denied, 130 S.Ct. 61 (2009), recognized that the violation of a defendant’s right to a public trial, which is a structural error, is not justified by a finding that the error was harmless. See Waller, 467 U.S. at 49-50; Guzman v. Scully, 80 F.3d 772,776 (2nd Cir. 1996).

The court said, “If it were [tested against the harmless error standard], little or nothing would remain of the right because the presence or absence of public spectators rarely, if ever, will affect the result of a trial, at least in a manner that is perceptible.” The court went on, “It does not follow, however, that every deprivation in a category considered to be “structural” constitutes a violation of the Constitution or requires reversal of a conviction, no matter how brief that deprivation or how trivial the proceedings that occurred during the period of the deprivation. … Similarly, in the context of a denial of the right of public trial, as defined in Waller, it does not follow that every temporary instance of unjustified exclusion of the public—no matter how brief or trivial, and no matter how inconsequential the proceedings that occurred during an unjustified closure—would require that a conviction be overturned. …. The contention that such a brief and trivial mistake could require voiding a criminal trial of many months duration seems to us unimaginable.”

In Gibbons excluding the defendant’s mother and limiting presence to lawyers, judge and venire for the first afternoon of a several day voir dire was unjustified, and because it was a structural error, the harmless error doctrine did not apply. It was, however, held trivial.

The Gibbons court looked at the U.S. Supreme Court’s values applied to a public trial and found since no evidence was taken during the closure, values 3 and 4 were not implicated. Values 1 and 2 were not violated because there was sequestered voir dire [or in Kelly a sidebar] where observers would not be privy to what transpired anyhow.

The court stated, “Although the closure was not justified, we conclude upon examination of all the details of what occurred, that event was too trivial to warrant the remedy of nullifying an otherwise properly conducted state court criminal trial. We need not rule on the metaphysical question whether, in view of the triviality of the incident, it was not a deprivation of a constitutional right, or in contrast, it was a violation of a constitutional right, but, in spite of the inapplicability of the harmless error rule, too trivial to justify vacating the state court’s judgment.” This statement is confusing, because it seems that is precisely what the court did.

Kelly v. Maryland, 195 Md.App. 403 (2010), summarizes a number of cases that conclude that the closure of the courtroom was so de minimus or trivial that the Sixth Amendment was not implicated. The factors in the analyses are: (1) length of closure, (2) significance of the proceedings that took place and (3) scope of the closure, i.e., partial or total.

Regarding the length, the shorter the closure, the more likely it will be de minimus and not meriting constitutional protection. A complete closure for an entire day or longer is unlikely to be held trivial. If closure encompassed an entire process, e.g., voir dire and jury selection, courts have refused to hold them de minimus, see State v. Torres, 844 A.2d 155 (R.I. 2004) and Watters v. Maryland, 328 Md. 48 at 49. In Watters all public was excluded and the court addressed the inability of family members to contribute “their knowledge or insight to jury selection.” However, a 40-minute closure during a small part of voir dire was held de minimus, see People v. Bui, 183 Ca.App. 4th 675 at 677, 107 Ca.Rptr.3d 585 (2010).

Citing Waller, the California court in Bui held that when the defendant has been denied his or her Sixth Amendment right, that error is structural and requires reversal per se. But, the court went on the state that, “not every closure of a trial or exclusion of certain spectators rises to the level of a constitutional violation,” and that certain exclusions or closures are so “de minimus” that they do not violate a defendant’s constitutional public trial rights, citing People v. Woodward, 4 Cal. 4th 376, 382 (1992) and People v. Esquibel, 166 Cal. App. 4th 539, 82 Cal. Rptr, 3d 803 (2008); cert. denied Esquibel v. California, 129 S.Ct. 1998 (2009).

The Missouri Court of Appeals in State v. Williams, 328 S.W.3d 366 (Missouri Ct. App. 2010) held that defense counsel’s affirmative request to fully close the trial amounted to a waiver. So it seems that even structural errors may be affirmatively waived.

The Supreme Court of Georgia in Purvis v. State, 288 Ga. 865 (2011), held that moving the trial to a courtroom in the jailhouse relinquished control to the jail officials and amounted to a failure to take reasonable measures to accommodate public attendance. There was no record explaining the trial judge’s reasoning; so the appellate court had nothing to review and remanded the case for a “new and public trial.”

In State v. Lormer, 172 Wash.2d 85 (Wash. S. Ct. 2011), the court held that excluding the defendant’s almost 4-year old son, who was on a ventilator and distracting, was not a partial closure to the public and did not require a triviality analysis. Instead the court applied an abuse of discretion test to the judge’s conduct, like for example an evidentiary ruling by the court.

In U.S. v. Dugalic, 489 Fed Appx. 10 (6th Cir. July 10, 2012–Case not reported), it was held by that the trial court’s procedure, i.e., giving prior notice that no one would be allowed to enter or leave the courtroom once closing arguments began in order to avoid distracting the jury, did not “violate” the defendant’s Sixth Amendment right. The public complying with the procedure was allowed to attend. The court also might have included a holding that the judge’s conduct was not an abuse of his discretion. See State v. Zornes, 831 N.W.2d 609 (MN S. Ct. 2013) where sequestration of a witness was tested for abuse of discretion.

The First Amendment issues attending access to judicial proceedings by the media also requires analysis. Live coverage of judicial proceedings is permitted by 47 states, but many place restrictions on such coverage. These include permitting coverage in appellate cases only, only with defense consent, civil cases only, exclusion for portions of the victim’s testimony, exclusion where the charges involve allegations of sexual misconduct, exclusion for the testimony of child witnesses and only with the consent of a witness.

This leaves only 26 states with no statutory restrictions on electronic access. Georgia is one of the 26. Rule 53 of the Federal Rules of Criminal Procedure flatly prohibits the taking of photographs in the courtroom during judicial proceedings and the radio broadcasting of judicial proceedings, and this prohibition has been upheld against constitutional challenges. U.S. v. Hastings, C.A.11 (Fla.) 1983, rehearing denied 704 F.2d 559, certiorari denied 103 S. Ct. 2094, 461 U.S. 931 (1983); Conway v. United States, 852 F.2d 187 (6th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 370, 102 L.Ed.2d 359 (1988).

O.C.G.A. § 15-1-10.1 recites the standards to be considered by courts in determining whether to grant requests for televising, videotaping or motion picture filming of judicial proceedings. These standards are used to evaluate the impact on the public interest and the rights of the parties in open judicial proceedings, the impact upon the integrity and dignity of the court, and whether the proposed activity would contribute to the enhancement of or detract from the ends of justice. The statutory factors are: (1) the nature of the particular proceeding at issue; (2) the consent or objection of the parties or witnesses whose testimony will be presented in the proceedings; (3) whether the proposed coverage will promote increased public access to the courts and openness of judicial proceedings; (4) the impact upon the integrity and dignity of the court; (5) the impact upon the administration of the court; (6) the impact upon due process and the truth finding function of the judicial proceeding; (7) whether the proposed coverage would contribute to the enhancement of or detract from the ends of justice; (8) any special circumstances of the parties, victims, witnesses, or other participants such as the need to protect children or factors involving the safety of participants in the judicial proceeding and (9) Any other factors which the court may determine to be important under the circumstances of the case.

Uniform Superior Court Rule 22(P), dealing with electronic and photographic coverage of judicial proceedings, mandates that a request for installation and use of electronic recording, transmission, videotaping or motion picture or still photography of any judicial proceeding be evaluated pursuant to the standards set forth in O.C.G.A. § 15-1-10.1. Specifically, Rule 22 permits electronic coverage of court proceedings unless the judge, “after ‘appropriate hearing’ with notice, makes specific findings that such coverage is either not ‘within the requirements of due process of law’ or cannot be ‘done without detracting from the dignity and decorum of the court.” Multimedia WMAX Inc. v. State, 256 Ga. 698, 699, 353 S.E.2d 173 (1987).

The Supreme Court emphasized that a denial of camera access requires factual support specifically documented in the record. With respect to the provision of O.C.G.A. § 15-1-10.1(b)(2), which permits a trial court to consider the objection of “the parties or witnesses whose testimony will be presented in the proceedings,” the Georgia Supreme Court has made quite clear that the record must support some factual basis supporting the objection, Morris Communications v. Griffin, et al., 279 Ga 735 (2005).

The Waller test will be applied to decide whether the constitutional right to a public trial has been violated. If that right has been denied, relief is required and a harmless error analysis cannot be applied to the trial court’s conduct. But the relief does not have to be reversal of the conviction or result of trial. A lesser remedy may be appropriate, or if the conduct is found to be trivial the trial result will be affirmed when the trial judge had any substantial reason for the conduct.