Right to a Public Trial

Criminal trials generally must be accessible to the public with very few exceptions.

By , Attorney · Mitchell Hamline School of Law

Anyone accused of a criminal offense has the right to a public trial under the Sixth Amendment to the U.S. Constitution. Defendants can sometimes waive their right to a public trial, but they can't compel a private trial. The general public and media have a First Amendment interest in open court proceedings, though these rights are secondary to the interests of the parties to the case.

Criminal Defendant's Right to a Public Trial

Why is the right to a public trial so important?

U.S. Supreme Court Justice Brandeis summed it up when he said, "Sunlight is said to be the best of disinfectants." By keeping legal proceedings in the public eye, it promotes accountability in maintaining a fair and just criminal justice system.

Ensuring a fair trial. Public trials allow the general public to see that the justice system is functioning properly and treating defendants fairly.

Holding the criminal justice system accountable. The presence of interested spectators aims to keep the judge, jury, lawyers, and courtroom staff mindful of their responsibilities and actions. Plus, in jurisdictions where judges are elected, voters can observe the performance of their elected judges up close.

Encouraging witnesses to come forward. Historically, public trials were needed to make proceedings known to potential witnesses.

Discouraging perjury. Witnesses are considered less likely to lie in a public tribunal when they are in the presence of not only the court but also members of their community.

Are All Criminal Court Hearings Open to the Public?

Generally speaking, yes, most criminal court hearings are open to the public. Although the right to a public criminal trial isn't absolute, the court starts with the presumption of openness. If someone wants to "close the courtroom doors," they must overcome this presumption with compelling reasons. The right to a public trial will often prevail over competing interests, even security and privacy interests. (More on closing courtrooms below.)

The defendant's right to a public trial applies to the entire trial process, not just the trial. The trial process includes certain pretrial hearings, such as motions on the admissibility of evidence, and jury selection and instructions. Through the First Amendment, the media and public generally have the right to access pretrial hearings, bail hearings, competency hearings, sentencing hearings, and posttrial proceedings.

When Can a Judge Exclude the Public From the Courtroom?

The U.S. Supreme Court decided that, before ordering closure of a hearing or trial, the judge must show in the record that:

  • the party seeking closure established that an overriding interest is at stake
  • the closure is no broader than necessary, and
  • no viable alternatives to closure exist.

(Waller v. Georgia, 467 U.S. 39 (1984).)

Under this test, the Court noted that total closure should be a rare occurrence. What's more likely to occur is the judge ordering a partial and limited closure for certain testimony or hearings when overriding interests, such as safety, fairness, and privacy, are at stake.

Maintain Order and Safety

Judges have broad discretion to maintain order and safety in their courtrooms, but even for the sake of order, the judge can't order a blanket closure of the courtroom. A judge may be justified in excluding those persons who aim to disrupt the trial, intimidate a witness, or corrupt jurors, because their presence could result in an unfair trial. On the flip side, a judge couldn't close a trial due to intense press coverage or media scrutiny of a case without more.

Safeguard the Privacy and Safety of Witnesses and Parties

To protect the privacy or safety of witnesses, parties, or others in the courtroom, a judge may close a proceeding. But the party seeking to close the courtroom will need to do more than simply assert a privacy or safety interest. They must provide a connection between the perceived threat and the witness's testimony and show why alternatives to closure won't suffice. For instance, the judge might agree to exclude the public from hearing the testimony of:

  • an undercover officer to prevent compromising the officer's identity and ongoing investigations
  • a witness whose testimony contains classified information, or
  • a witness who's experienced threats or harassment due to their expected testimony.

Protect Vulnerable Victims From Emotional Distress

In certain types of cases (often rape and sexual assault), laws sometimes work proactively to protect a victim's identity and privacy by allowing the judge to redact the victim's name and address from the records and testimony.

When the victim is a child, has a cognitive impairment, or could suffer severe emotional distress, some states' laws also permit judges to exclude from the courtroom anyone without a direct interest in the case during the victim's testimony. But, even in these difficult cases, the judge must evaluate any type of closure on a case-by-case basis. The judge considers factors such as the nature of the offense, the victim's age or level of impairment, whether possible disclosure of the victim's identity would cause harm to the victim, and whether alternatives are viable (such as using video-recorded depositions or closed-circuit television testimony).

Getting Help

If you have questions regarding open or closed judicial proceedings, contact a local criminal defense attorney who's familiar with the local court practices. Victims may want to consult a victim's advocate with similar experience in attending hearings before local judges.

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