The contents of this website are for informational purposes only and do not constitute legal advice.

Between October 1, 2020, and April 1, 2024, the National Association of Criminal Defense Lawyers and its partners prepared and managed the content below with funding from Grant No. 2019-YA-BX-K001, awarded by the Bureau of Justice Assistance. This content has been preserved on this website “as is.” Users should independently confirm that there have been no updates to the law as of April 1, 2024.

Public Trial Resources

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.