In all criminal prosecutions, the accused shall enjoy the right to a... public trial....Amendment VI
The public-trial right in the Sixth Amendment is deeply rooted in Anglo-American history, tradition, and values. It reflects, among other things, the Founders' hostility toward secret proceedings reaching back to the Star Chamber, which pre-dated the Glorious Revolution in England (1688). There was widespread agreement with Sir Edward Coke's view that a trial is almost by definition open and public. Thus, Justice Joseph Story, in his Commentaries on the Constitution of the United States, emphasized that, in "the established course of the common law...trials for crimes" are "always public." The Supreme Court has echoed this view, stating that "[b]y immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted." In re Oliver (1948).
Like most other provisions of the Bill of Rights, the public-trial guarantee has been construed by the Supreme Court to constrain both federal and state governments. Although deeply rooted and fundamental, the public-trial right is not absolute. Although the Sixth Amendment's public-trial right belongs to the criminal defendant, the public and the press also have a First Amendment interest in open proceedings. Therefore, "a defendant can, under some circumstances, waive his constitutional right to a public trial, [but] he has no absolute right to compel a private trial." Singer v. United States (1965). In addition, when the "dignity, order and decorum" that are and must be "hallmarks of criminal justice proceedings" are flagrantly disregarded, Illinois v. Allen (1970), the proceedings may, if necessary, be closed temporarily. Waller v. Georgia (1984). For example, judges will occasionally close portions of trials to protect minor victims in sex-offense trials or when necessary to preserve the confidentiality of sensitive information, such as the identity of undercover witnesses. Though the Sixth Amendment's guarantee of a public "trial" includes the impaneling of the jury and return of the verdict, as well as certain pretrial proceedings, it does not require that all stages and phases of criminal prosecutions be open to the public. Grand jury proceedings, for example, are secret. United States v. Procter & Gamble Co. (1958).
For individual defendants, as Justice Hugo L. Black observed in the Oliver case, a public trial serves as a "safeguard against any attempt to employ our courts as instruments of persecution." As Justice John M. Harlan later put it, "the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings." Estes v. Texas (1965). Professor Wayne LaFave has noted that public trials also make proceedings known to potential witnesses and help to deter untruthful testimony. As Sir William Blackstone wrote in his Commentaries on the Laws of England, the "open examination of witnesses...in the presence of all mankind, is much more conducive to the clearing up of truth, than private and secret examination....[A] witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal."
Thus, any closure of a criminal trial implicates not only the defendant's Sixth Amendment rights, but also the First Amendment freedoms of the press and citizens generally. Open trials not only protect the innocent from wrongful conviction, they also serve the public interest in maintaining confidence in the criminal-justice system and its officers. As the Supreme Court has observed, "the First Amendment right of access to criminal trials" reflects the "common understanding" that "a major purpose of that Amendment was to protect the free discussion of governmental affairs." Globe Newspaper Co. v. Superior Court (1982). Our constitutionalized preference for open trials, in other words, reflects our democratic commitment to "the ultimate right of the public to change policy and policymakers." Gannett Co. v. DePasquale (1979). The Court has also relied upon the First Amendment to guarantee a presumption of public trials in civil cases. Richmond Newspapers, Inc. v. Virginia (1980). A lawyer, however, may be disciplined for statements to the press about a pending case he is involved in for "speech that is substantially likely to have a materially prejudicial effect." Gentile v. State Bar of Nevada (1991).
- Richard W. Garnett
- Professor of Law
- Associate Dean for Faculty Research
- Concurrent Professor of Political Science
- Notre Dame Law School