Jury Trial Issues -- The Right to a Public Trial

By John DiMotto

Every criminal defendant is entitled to a public trial from jury selection through the verdict. This right is guaranteed by the Sixth Amendment Right to a Public Trial -- "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...in the State and district wherein the crime shall have been committed..." as well as Article I, Section 7 of the Wisconsin Constitution -- "In all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury..."

The Right to a Public Trial promotes the presumption of openness that attends court proceedings. The values served are to:

1) ensure a fair trial.

2) remind the court and the prosecutor of their responsibilities toward the criminal defendant.

3) encourage witnesses to come forward.

4) discourage perjury.

Where values are implicated and closure is not trivial, exclusions must be justified. In order to justify closure:

1) The party seeking closure must show an overriding interest which is likely to be prejudiced by a public trial.

2) Closure must be carefully tailored to protect that interest.

3) Alternatives to closure must be considered by the court, and

4) The court must make findings sufficient to justify closure.

Closure of the entire courthouse, thereby denying the public access to a courtroom during a trial, violates a defendant's right to a public trial. The Right to a Public Trial is a basic tenet of our judicial system. The principle is that justice cannot survive behind walls of silence. However, where the unjustified closure is trivial there may not be a constitutional violation. Each case must viewed individually -- case by case.

It is important to note that the Right to a Public Trial is not only tested when the entire proceedings are closed to everyone. It is also tested when there is exclusion of just certain people (ie. family members of the defendant) and if only for part of the trial.

In Wisconsin, two recent cases that have addressed the Right to a Public Trial are State v. Vanness, 304 Wis.2d 692 (Ct. App. 2007) and State v. Ndina, 315 Wis.2d 653 (2009).

In the final analysis, the public has not just a right to know but a right to be present in order to know.