Purpose of Public Trials

Purpose of Public Trials

The Sixth Amendment gives the accused the right to a “speedy and public trial,” and the earlier sections of this chapter dealt with the first adjective.¹ The second adjective concerns who may watch, and it reaches state prosecutions as well as federal ones. The Supreme Court treated the right to a public trial as an essential element of due process, so the Fourteenth Amendment carries it into state courts.² The decision that anchored this result was In re Oliver, which held that the Due Process Clause forbids closed criminal trials and rested that holding on the nation's historic distrust of secret proceedings.³ This section answers two questions that the closure rules in later sections take for granted: whose right the guarantee is, and what the right is for.

Whose Right It Is

The public-trial guarantee belongs to the accused. In Gannett Co. v. DePasquale the Court held that the Sixth Amendment right is the personal right of the accused, and the Court later restated that the guarantee does not by itself create a public right of access that the press and members of the public can enforce.⁴ The text points the same way, because the clause says that “the accused shall enjoy” the right, and its named beneficiary is the defendant in a criminal prosecution.⁵

The public is not left without a constitutional claim. In Richmond Newspapers, Inc. v. Virginia the Court held that the right to attend criminal trials is implicit in the First Amendment, because important aspects of freedom of speech and of the press could be eviscerated if the government could shut the courtroom door at will.⁶ The First Amendment route was needed because Gannett had already read the Sixth Amendment as personal. Justice White observed in concurring that the case would have been unnecessary had Gannett construed the Sixth Amendment to forbid excluding the public from criminal proceedings except in narrowly defined circumstances.⁷ Globe Newspaper Co. v. Superior Court then supplied the method for measuring how far the access right extends, which looks to a historic tradition of openness for that kind of proceeding and to whether public access contributes to the proceeding's functioning.⁸

The result is two rights with different holders and different roots. The accused invokes the Sixth Amendment, applied through the Fourteenth, to protect the fairness of the accused's own prosecution. The press and public invoke the First Amendment, which rests on the citizen's interest in taking part in and contributing to self-government.⁹ Because both rights attach to the same courtroom door, a single closure order can implicate both, and a court that closes a proceeding may face objections under each. The Court has not decided whether the Sixth Amendment right reaches further than the access right, although it has suggested that it reaches at least as far.¹⁰

Ownership also fixes what the accused may do with the right. A defendant who fails to object when the courtroom is closed may lose the claim, since an unobjected closure can be upheld on plain error review, yet the ability to forfeit the right gives the defendant no power to compel a private trial.¹¹ The right protects the accused against closure and gives no power to demand secrecy, which is consistent with the separate public interest in open courts.

On an exam stem in which a reporter or other outsider is excluded, the trap is to invoke the Sixth Amendment on that person's behalf, when the Sixth Amendment right is the accused's alone and the outsider's claim runs through the First Amendment.¹²

Why Openness Matters

Once the purposes are on the page, the accused's ownership of the right makes sense, because each purpose works through the accused's own case. The guarantee serves the accused in three ways.¹⁵

The first purpose rests on accountability. A judge or prosecutor who knows that observers are watching has a reason to follow the rules, because a decision made in public has to be defended in public, while a proceeding behind closed doors leaves only the officials' own self-discipline as a check. Oliver placed this concern at the center of the guarantee, describing it as a safeguard against any attempt to employ the courts as instruments of persecution, including the suppression of unpopular political and religious views.¹⁹ The second and third purposes depend on who is in the room. A lie told before a full courtroom can be detected only if someone present knows the truth, and a witness who understands that has reason to hesitate before lying. The defense, meanwhile, can summon only the people it knows about, so publicity can reach a bystander who holds facts the defense never knew existed.

These purposes have deep roots. The Court in Richmond Newspapers traced the presumption of open trials to England and the American colonies, where early charters required open courts so that “justice may not be done in a corner nor in any covert manner.”²⁰ The authorities the Court cited there saw openness as assuring fairness, discouraging perjury and misconduct, and deterring decisions based on secret bias, which are the same functions the modern cases describe.²¹

Openness also serves interests that reach beyond the accused. When trials are conducted in the open, citizens can see how the system works and how it handles particular cases, which educates them and builds confidence in judicial remedies, and in the modern era the press often serves as the public's surrogate by reporting what citizens could not otherwise observe.²² Secrecy has the opposite effect. It breeds ignorance and distrust of courts and suspicion about the competence and impartiality of judges, while free reporting, criticism, and debate improve the system by subjecting it to public accountability.²³ That wider benefit is the reason the First Amendment access right exists beside the Sixth Amendment right, and it is why one closure can touch both.

The facts of Oliver show the safeguards at work. The proceeding there was a contempt proceeding against a witness before a Michigan one-man grand jury, which Michigan law treated as criminal in nature.²⁴ The Court held that the Due Process Clause means at least that an accused cannot be sent to prison after a secret proceeding of that kind, and the case is also the source of the rule that the public-trial guarantee covers criminal contempt.²⁵