Delay as an Alternative to Closure

Delay as an Alternative to Closure

The speedy-trial and public-trial guarantees pull against each other in one recurring situation. When a party asks a court to close a hearing to protect a fair trial from publicity, the closure test requires the court to consider reasonable alternatives, and the alternatives for a pretrial proceeding include extensive voir dire, a continuance, and a change of venue.¹ A continuance is the alternative that brings the speedy-trial right back into the analysis. Closing a hearing protects a fair trial at the expense of openness, and delaying the trial protects it at the expense of speed, so the court has to decide which cost is the smaller one.

A continuance can stand in for closure because the harm it answers is time-sensitive. Prejudicial publicity does its damage while a story is fresh in the minds of the people who may later sit as jurors, and a story loses its hold as newer events displace it. In a footnote in Nebraska Press Association v. Stuart, the Court observed that even short continuances can be effective in attenuating the impact of publicity, especially as other news crowds past events off the front pages.² Because a continuance leaves the hearing open, it protects the fair-trial interest without taking anything from openness, which is why it counts among the less drastic tools. The same list appears in Richmond Newspapers, Inc. v. Virginia, where the Court noted that a trial permits a range of measures short of closure, including excluding or sequestering witnesses, sequestering jurors, and employing continuances, and reversed a closure order because the judge made no inquiry into whether such alternatives would ensure fairness.³

The tool has a long history in the fair-trial cases. In Sheppard v. Maxwell the Court ordered a new trial because the trial judge had not fulfilled the duty to protect the defendant from publicity that saturated the community, and it described what the judge should have done: when prejudicial news threatens a fair trial, the judge should continue the case until the threat abates or transfer it to another county not so permeated with publicity, and should have raised sequestration of the jury with counsel on the court's own initiative.⁴ Continuance, change of venue, and sequestration are the measures the closure test later lists as alternatives. Each acts on the jury's exposure to publicity and leaves the courtroom door open, so a judge who can protect the trial with one of them has no overriding interest that closure is needed to serve.

The alternative has a cost that the defendant bears, so the speedy-trial guarantee sets its outer limit. The Court has said that excessive delay would be impermissible under the speedy-trial right, but that somewhat substantial delays designed to ensure fair proceedings need not violate that guarantee.⁵ The reconciliation runs through the second factor of Barker v. Wingo, which weighs the reason for a delay on a sliding scale. A deliberate attempt to hamper the defense weighs heavily against the government, neutral causes such as negligence or crowded courts weigh less heavily but still count against it, and a valid reason, such as a missing witness, justifies appropriate delay.⁶ A continuance ordered to protect the jury pool from publicity belongs in the valid-reason category, since its purpose is to secure a fair trial and not to advantage the prosecution or spare the court inconvenience. The other factors keep working even when the reason is good. A defendant who objects to the continuance and demands a prompt trial earns strong evidentiary weight on the assertion factor, while silence makes the claim hard to prove, and the length of the delay and the prejudice it causes remain part of the balance.⁷

The two continuances look alike on the docket, since both postpone the trial, and they differ in the purpose behind the delay and in how long it runs. Students most often lose this issue by treating a fair-trial purpose as a complete answer to a speedy-trial claim, when excessive delay remains impermissible whatever the motive. The length of the continuance matters because a successful speedy-trial claim ends in dismissal of the charges with prejudice.⁸

This is where the two guarantees in the clause meet. The speedy-trial right limits how long a court may wait, the closure test limits when a court may shut the doors, and a continuance chosen to avoid closure must satisfy both: it must be considered as an alternative under the closure test, and it must be justified as a delay under Barker.