Right to public trial

The Sixth Amendment to the United States Constitution guarantees a right to public trial.

Statutes

Code of Civil Procedure section 124

Except as provided in Section 214 of the Family Code or any other provision of law, the sittings of every court shall be public.

Penal Code section 868

The examination shall be open and public. However, upon the request of the defendant and a finding by the magistrate that exclusion of the public is necessary in order to protect the defendant’s right to a fair and impartial trial, the magistrate shall exclude from the examination every person except the clerk, court reporter and bailiff, the prosecutor and his or her counsel, the Attorney General, the district attorney of the county, the investigating officer, the officer having custody of a prisoner witness while the prisoner is testifying, the defendant and his or her counsel, the officer having the defendant in custody, and a person chosen by the prosecuting witness who is not himself or herself a witness but who is present to provide the prosecuting witness moral support, provided that the person so chosen shall not discuss prior to or during the preliminary examination the testimony of the prosecuting witness with any person, other than the prosecuting witness, who is a witness in the examination. Upon motion of the prosecution, members of the alleged victim’s family shall be entitled to be present and seated during the examination. The court shall grant the motion unless the magistrate finds that the exclusion is necessary to protect the defendant’s right to a fair and impartial trial, or unless information provided by the defendant or noticed by the court establishes that there is a reasonable likelihood that the attendance of members of the alleged victim’s family poses a risk of affecting the content of the testimony of the victim or any other witness. The court shall admonish members of the alleged victim’s family who are present and seated during the examination not to discuss any testimony with family members, witnesses, or the public. Nothing in this section shall affect the exclusion of witnesses as provided in Section 867 of the Penal Code.

For purposes of this section, members of the alleged victim’s family shall include the alleged victim’s spouse, parents, legal guardian, children, or siblings.

Notable cases

Supreme Court cases

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

Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501

California cases

People v. Scott (Apr. 4, 2017, No. B270426) ___ Cal.App.5th ___, available at [1]

Holding

Exclusion of defendant's family members during trial violated the constitutional right to a public trial

Victim received threatening phone calls to not testify. In response, the judge excluded the defendant's family members.

Federal cases

United States v. Yazzie, Nos. 12–10165, 12–10326 (9th Cir. Feb. 27, 2014)

Holding

Closing the courtroom to the public during testimony of child sex abuse victims did not violate the defendants' First and Sixth Amendment rights to a public trial.

Facts

In two different cases, the defendants were accused of sexual abuse of minors. In each case, the government moved to close the courtroom during testimony of the victims, which the court granted.

Rationale

The First and the Sixth Amendment guarantee a right to a public trial, but the right is not absolute. Courts apply a four-step procedure to close a courtroom to the public. First, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced. Second, the closure must be no broader than necessary to protect that interest of overriding importance. Third, the court must consider reasonable alternatives to closing the proceeding. Finally, the court must make findings adequate to support the closure. In one case, there was concerns about the children's ability to communicate effectively, because of the children's age, mental difficulties of one of the witnesses, and family tensions from the defendant being related to the victims. In the other case, there was fear of psychological harm that would impact the ability to communicate. The closure of the courtroom was narrowly tailored in both cases since it only occurred during testimony of the victims. The courts considered and rejected other alternatives to closing the courtroom, such as closed-circuit television. Finally, the court made a case-by-case determination of the need to close the courtroom and stated the reasons for it.