Introduction

A Prompt and Open Trial

Introduction

The Sixth Amendment begins its list of trial rights with a promise that reads as a single phrase: "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial," followed by the guarantees of an impartial jury, notice of the accusation, confrontation of witnesses, compulsory process, and counsel.¹ The Supreme Court has described these provisions together as the means by which the Constitution defines the basic elements of a fair trial.² Within that list, "speedy" and "public" look like two adjectives describing one right. The two words guard against different failures, and each failure calls for its own analysis.

The first failure is delay. A prosecution can drag on while the accused waits under a pending charge, perhaps in jail, with witnesses' memories fading and the accusation unresolved. The speedy-trial guarantee asks whether the time between accusation and trial was unreasonable, and Barker v. Wingo answers by balancing four factors: the length of the delay, the reason for it, the defendant's assertion of the right, and the prejudice to the defendant.³ Because no single factor is necessary or sufficient, a court reaches its answer by weighing all four together, which leaves no fixed calendar deadline for a court to apply.⁴ The second failure is secrecy. A trial can take place out of public view, and the public-trial guarantee asks whether the courtroom was closed, or some person excluded, without adequate justification. The answer comes from an exacting closure test that makes the party seeking closure justify it.

This chapter takes the two guarantees in turn. The speedy-trial material comes first because delay is analyzed in a fixed sequence: when the clock starts, then the four factors, then the remedy. The public-trial material follows, since closure rests on a different set of cases and a test of its own. Before either test can be applied to a state prosecution, though, the guarantees have to reach it, and they do so through the Due Process Clause in Section 1 of the Fourteenth Amendment. That bridge is the first topic below.