The Waller Closure Test

The Waller Closure Test

The previous sections identified which proceedings the public-trial right reaches, and that answers only the first half of a closure problem. A proceeding inside the right can still be closed, so the remaining question is what the court must establish before it does so. The answer starts from a presumption of openness: a covered proceeding stays open unless the party who wants it closed justifies the closure, and that party carries the burden. In the access cases the Court described the presumption as one that yields only to an overriding interest, shown through findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.¹ A judge who clears a courtroom on a hunch, or for convenience, has therefore skipped the starting point of the analysis.

The burden sits where it does because of what closure costs. Public attendance restrains abuse of judicial power, since the knowledge that a proceeding is open to review in public opinion makes persecution harder to carry out. It also discourages false testimony by making witnesses fear detection, and it can bring the proceeding to the attention of material witnesses the defense did not know about.² Each of those benefits works silently, and each disappears when the doors close. An objector cannot show what a closed room would have revealed, while the party seeking closure knows exactly why it wants the room closed. Assigning the burden to that party gives the task to the one able to perform it, and the presumption means that a vague or unsupported request loses.

The standard that carries this burden has a Sixth Amendment source and a First Amendment source, and the two have been merged. In Waller v. Georgia the Court held that the standards developed in the press-and-public access cases, Globe Newspaper and the first Press-Enterprise decision, also govern when a suppression hearing is closed over the defendant's objection.³ In the access cases the formulation is that closure must be necessitated by a compelling government interest and be narrowly tailored to serve it.⁴ The labels vary from opinion to opinion, with some speaking of an overriding interest and others of a compelling one, but the structure is the same. One analysis therefore serves whichever right is invoked: the accused who objects under the Sixth Amendment and the reporter who objects under the First are putting the same questions to the court.

The four steps guard against four different failures. The first prevents closure on an interest that is vague or unproven, and the second prevents a real interest from justifying more closure than it needs. A prospective juror's privacy about a personal matter, for example, can justify closing that juror's questioning, which is far narrower than closing all of voir dire.⁹ The third prevents a judge from reaching for the closed door when a gentler tool would do the job. In Presley v. Georgia the trial court excluded the public from jury selection because the courtroom was small, and it did so without considering how to accommodate both the public and the potential jurors.¹⁰ The fourth step does the subtlest work. A judge who must put the interest, the scope, and the alternatives into findings is forced to examine each of them, and a reviewing court has something to check, whereas a closure order with no stated reasons cannot be distinguished from one that was never examined at all.

The first two steps and the last two also show the polarity of the test on a single kind of proceeding, the suppression hearing at issue in Waller.

The two scenarios differ in what the judge and the proponent did before closing, since the proceeding, the hearing type, and even the request to close are alike. The test is also conjunctive, so a closure fails if any one step fails, and examinees lose points by stopping after finding a good reason for closure without checking its breadth, the alternatives, and the findings. The next four subsections take the requirements one at a time, beginning with the overriding interest.

Overriding Interest

The first requirement of the Waller closure test asks what the court would be protecting by closing the proceeding. The party seeking closure must show an overriding interest that is likely to be prejudiced if the proceeding stays public. The access cases state the same demand in slightly different words: closure must be necessitated by a compelling government interest and be narrowly tailored to serve that interest, so that overriding and compelling name a single threshold.¹⁵ The requirement has two parts, and each has its own reason. The word overriding measures how much the interest weighs, and the phrase likely to be prejudiced measures whether the interest is actually in danger in the case before the court.

Weight comes first because closure has a price. An open proceeding restrains abuse of judicial power, discourages false testimony, and can bring forward witnesses the parties did not know about, and a closed one gives up all of those benefits described earlier in this chapter. An interest can justify that loss only if it outweighs what is given up. Embarrassment, inconvenience, and a general preference for privacy have real value to the people who feel them, but each can arise in almost any prosecution, and if any of them sufficed, closure would become routine and the presumption of openness would mean very little.

Likelihood is a separate requirement because an interest can be weighty in the abstract and still be untouched by the hearing at hand. The proponent must therefore establish that a public hearing would actually prejudice the interest, and the burden sits with the proponent for two reasons. The proponent holds the facts, such as what a witness will say or how a particular victim is faring, while the public and a reviewing court cannot see inside a closed room. A judge who may close on assumption also invites requests built on speculation, since asking costs nothing and the person asking benefits from the privacy. The cases accordingly demand a determination on the facts of each case, whether the interest is a minor victim's welfare, a juror's privacy, or a defendant's fair trial.¹⁶

The cases recognize three interests of this kind. The first is the accused's right to a fair trial when publicity threatens it. When that is the interest asserted, a proceeding may be closed only on specific findings that there is a substantial probability that publicity the closure would prevent will prejudice the defendant's fair-trial right, and that reasonable alternatives to closure cannot adequately protect it.¹⁷ The second is the protection of minor victims of sex crimes from further trauma.¹⁸ The third is a prospective juror's privacy about personal matters, which can justify closing a very limited segment of voir dire.¹⁹ The alternatives and findings parts of the fair-trial formulation belong to later requirements and are taken up in the subsections that follow.

The minor-victim interest is the model of a valid interest, and Globe Newspaper Co. v. Superior Court shows both what makes it valid and what limits it. The Court accepted that protecting minor victims of sex crimes from further trauma is a compelling interest, yet it held that the interest could not support a statute requiring the public's exclusion whenever a victim under 18 testified.²⁰ The statute treated the interest as present in every case, when the interest exists only for a particular minor on particular facts. A valid procedure must therefore require the trial court to determine on a case-by-case basis whether closure is necessary to protect the minor before it.²¹ Where the prosecution shows that a minor victim would suffer further trauma testifying in open court, and the judge assesses that need on the facts of the case, the first requirement is met.

The two situations differ in the interest asserted and in whether anything was shown. In Globe Newspaper the interest was recognized in kind, and the open question was whether it applied to the particular minor, while the prosecutor's rationale names a feeling that nearly every contested hearing can produce. A general desire for privacy or convenience fails at this step because it supplies a reason to prefer closure without supplying an interest weighty enough to outweigh openness. Even the recognized juror-privacy interest is confirmed case by case: prospective jurors are told they may ask for privacy, the judge decides whether the request has a valid basis, and only then does the judge excuse the juror or order a limited closure.²³ Because the interest has to be established for the particular case, the next question is how far closure may reach once an interest is shown, which is the narrow-tailoring requirement.

Narrow Tailoring

The second requirement of the Waller closure test looks at the reach of the closure order, and it is usually called narrow tailoring. Once the party seeking closure has shown an overriding interest, the order must still be no broader than necessary to protect that interest, so the interest itself sets the outer limit on what the court may close.²⁶ The first requirement and this one ask different questions. The first asks whether the interest is weighty and actually threatened, and the second asks whether the order fits the interest it claims to serve. An order can therefore fail at this step even when the interest behind it is entirely genuine.

The reason for the requirement becomes clear when you follow what a closed courtroom costs. Closing a proceeding gives up the benefits of public attendance described earlier in this chapter, and any closure beyond what the interest demands gives them up for nothing. The interests that justify closure are also personal and particular, such as the welfare of one minor witness or the privacy of one prospective juror, so only an inquiry into the actual person can show how much protection is needed. A rule that skips the inquiry creates an incentive problem as well. A party with a real but limited concern could use it to obtain secrecy across a whole proceeding, and the narrowest-order requirement removes that payoff by confining the closure to what the concern justifies. A valid interest then cannot serve as a pretext for broad secrecy.

The two decisions that teach this requirement, Globe Newspaper and the first Press-Enterprise decision, were press-and-public access cases under the First Amendment. As the previous section explained, Waller adopted their standards for closures challenged by the accused, so they govern a defendant's objection as well. In Globe Newspaper Co. v. Superior Court the Court accepted that shielding minor victims of sex crimes from further trauma is a compelling interest, and it still held that the interest could not support a statute requiring the public's exclusion whenever a victim under 18 testified.²⁷ The flaw was breadth. A mandatory rule treats every minor witness alike and closes the courtroom even where the particular minor may need no protection, because the statute never asks. The Court therefore required a state's procedure to direct the trial court to determine on a case-by-case basis whether closure is necessary to protect the particular minor.²⁸ Tailoring in this sense is a task for the judge on the facts of the case, and a legislature cannot complete it in advance for every case.

The first Press-Enterprise Co. v. Superior Court decision supplies the positive example. The Court acknowledged that a prospective juror's privacy interest in personal matters might justify closing a very limited segment of voir dire, and it described the procedure that keeps such a closure narrow. The prospective jurors are told they may ask for privacy, the judge decides whether the request rests on a valid basis, and only then does the judge choose between excusing the juror and ordering a limited closure.²⁹ The closure is justified because it reaches only the segment in which the juror discusses the sensitive personal matter, while the rest of jury selection stays open to the public.

Placed side by side, the two decisions involve the closure of a covered proceeding to protect a recognized interest, so the interest does not distinguish them. What distinguishes them is the match between the order and the interest. The Globe Newspaper statute closed automatically, in every case within a category, whatever the facts of the particular minor. The Press-Enterprise procedure closed one segment, after the judge found a valid basis for the particular juror's concern. The first order was shaped by a category, and the second was shaped by a person.

Examinees most often miss this step by treating a compelling purpose as enough, so that a statute that closes the courtroom automatically looks acceptable because the protected interest is so sympathetic. The sympathy attaches to the interest, which the first step already tested. The second step tests the order, and an order that applies without asking whether this person needs protection is too broad however worthy its purpose. Even an individualized order must be limited in reach, so the question to put to any closure is how much of the proceeding, and how many people, the interest actually requires the court to exclude. A narrow closure is still a closure, though, and the next requirement asks whether the court needed to close anything at all, given what other measures could have protected the same interest.

Reasonable Alternatives

The third requirement of the Waller closure test moves from the reach of the closure order to an earlier question: whether the court needed to close anything at all. Before closing a covered proceeding, the court must consider reasonable alternatives, meaning other measures that could protect the same interest while leaving the proceeding open, and closure is justified only if those measures cannot adequately do the job.³³ Narrow tailoring asks how much to close once closure is on the table, while this requirement asks whether closure beats the other options available. The first reason for the rule is that closure is a blunt tool, and in many cases a less restrictive device can protect the interest at stake. The second reason concerns incentives. Closing a courtroom is usually the easiest course for a judge, since it requires no rearranged seating, no extra questioning of jurors, and no postponement, and the cost of closure falls on the public and the accused rather than on the judge. Requiring a real comparison removes that easy path, so openness gives way only when nothing else will work.

When the interest asserted is the accused's right to a fair trial and the danger is prejudicial publicity, the sources identify the alternatives by the stage at which the danger arises.

• For a pretrial proceeding such as a suppression hearing, the alternatives are extensive voir dire to identify biased jurors, continuances, and a change of venue.³⁴
• For publicity that arises during the trial itself, the key alternatives are admonitions to the jurors and sequestration.³⁵

The sorting follows from what the publicity can still reach. Before trial, no jury has been seated, so the remedies work on who will sit and when, by screening out biased people, delaying the case until coverage fades, or moving it to a county the coverage did not saturate. Once the jurors are seated, the remedies work on what those particular jurors hear, by instructing them to avoid coverage or by isolating them from it.

Two decisions show these tools in use and what follows when a judge ignores them. In Sheppard v. Maxwell, a due process case about publicity and not a closure case, the Court told trial judges that when there is a reasonable likelihood that prejudicial news will prevent a fair trial, the judge should continue the case until the threat abates or transfer it to another county. It also faulted the trial judge for not raising sequestration of the jury on his own initiative and said that courts should regulate how participants in the case deal with the press.³⁶ In Richmond Newspapers, Inc. v. Virginia the Court observed that a trial, unlike a pretrial suppression hearing, permits a range of alternatives to closure, such as excluding or sequestering witnesses, sequestering jurors, and continuances, and it reversed because the trial judge made no findings and made no inquiry into whether alternative solutions would have ensured fairness.³⁷ The two cases do different work. Sheppard supplies the toolkit and the judge's duty to use it, while Richmond Newspapers shows the consequence of a closure order that never asked whether the toolkit would suffice.

The alternatives requirement also reaches closures that have nothing to do with publicity. In Presley v. Georgia the courtroom was small, and the trial judge excluded the defendant's uncle from jury selection, saying that prospective jurors could not mingle with him and needed all of the rows of seats.³⁸ The Court held that the public-trial right was violated, because the judge completely excluded the public from voir dire in a courtroom of limited size without considering options for accommodating both the public and the potential jurors.³⁹ The judge's concern, finding seats for the jurors, was a practical one. The defect was that the judge never asked whether the seating problem had a solution short of excluding everyone from the spectator seats. A court must make reasonable efforts to accommodate public attendance, and a complete exclusion shows that no such effort was made.

Presley and the seating illustration differ in one fact: whether the judge looked for a way to keep the courtroom open before excluding anyone. Examinees most often lose this step by treating a legitimate interest as the end of the analysis. A valid reason for closing does not show that closing was the only way to serve that reason, and the court must find that the alternatives cannot adequately protect the interest before it may close. Where one of them would work, the court uses it and the proceeding stays open. A continuance appears on the list above, and because a continuance delays the trial, it brings the speedy-trial guarantee into play, an interaction taken up in the later section on delay as an alternative to closure. The fourth requirement asks the court to put its comparison of the options on the record in findings, which is the next subsection.

Findings on the Record

The fourth requirement of the Waller closure test concerns the record the judge leaves behind. Even when an overriding interest exists, the closure is narrow, and no reasonable alternative would do, a court may close a proceeding covered by the public-trial right only if it supports the closure with findings on the record, meaning specific factual determinations entered in the record that show why each earlier requirement is met.⁴² The first three requirements govern what the judge must conclude, and this one governs how the conclusion must be shown. The presumption runs toward an open courtroom, and it yields only to an overriding interest based on findings that closure is essential to preserve higher values.⁴³ An order that states no reasons therefore gives the court nothing with which to overcome that presumption.

For the most common closure motion, one that rests on the accused's own fair-trial right and a fear of prejudicial publicity, the second Press-Enterprise Co. v. Superior Court decision supplies the formulation. A proceeding may be closed only if specific findings establish two things. The first is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that the closure would prevent, and the second is that reasonable alternatives to closure cannot adequately protect that right.⁴⁴ Each half corresponds to an earlier requirement. The first finding records the overriding interest and the likelihood that an open hearing would harm it. The second records that the court weighed the alternatives from the previous subsection, such as extensive voir dire, continuances, and change of venue before trial, or admonitions and sequestration during it, and found them inadequate.⁴⁵ The findings must also account for the reach of the order, because a closure broader than the findings justify fails the narrow-tailoring step. Framing the first finding in terms of probability matters for a further reason: it commits the judge to a factual judgment about how likely the harm is, and a reviewing court can test that judgment in a way it cannot test a bare conclusion.

The reason for demanding findings comes from the structure of the process. The first reason is review. A closure order is challenged after the fact, and an appellate court can test it only against what the record shows, so an order with no stated reasons leaves the reviewing court guessing whether an interest existed, whether alternatives were considered, and whether the closure was broader than necessary. The second reason concerns the judge's incentives. Closing a hearing is often the easiest answer to a worried party, and the motion may go unopposed. The defendant's motion did in Press-Enterprise II, where the magistrate granted it after finding that national publicity meant only one side might be reported in the media.⁴⁶ Without a duty to explain, a judge can grant such a motion on instinct, and secrecy becomes the default. A duty to write findings makes the judge confront each step of the test before the doors close, and it puts on the party seeking closure the burden of supplying facts that the findings can rest on.

Two decisions show different ways the requirement can fail, and what separates them is the lesson. In Richmond Newspapers, Inc. v. Virginia the failure was an empty record: the trial judge made no findings to support closure and made no inquiry into whether alternative solutions would have ensured fairness, and the Court reversed, stating that absent an overriding interest articulated in findings the trial of a criminal case must be open.⁴⁷ In Press-Enterprise II a record existed, but it was built for the wrong test. California law directed the magistrate to close a preliminary hearing on a finding of a reasonable likelihood of substantial prejudice to the fair-trial right, and the Court held that this standard could not justify closure, because the presumption of openness gives way only to an overriding interest, based on findings, that closure is essential to preserve higher values and is narrowly tailored to serve that interest.⁴⁸ A missing record and a record measured against a weaker standard both fail, so the findings must exist and must answer the right questions.

The two orders differ in one fact: whether the judge put the interest, the alternatives, and the scope on the record. Students lose this step when they treat a conclusory statement that closure is necessary as a finding, because a label that restates the conclusion records none of the facts the test requires. Findings also cannot rescue an order that fails earlier. A thorough recital that rests on a general preference for privacy still fails the overriding-interest requirement, and a recital of a genuine interest that closes the whole proceeding still fails narrow tailoring. Adequate findings are the last of the four requirements, and they are also the document in which the other three are proved. The next section turns from the constitutional test to Federal Rule of Criminal Procedure 60(a)(2) on victim attendance.