The Right to a Public Trial

By John DiMotto

In the current economic environment, local governments are constantly looking for ways to save taxpayer money. In many communities, large amounts of money are spent on courthouse security. One of the ways that local government has attempted to save money is to limit the hours that a courthouse is open to the public. However, closure limits access to courtrooms. While a decision to close courthouses to save money is very understandable, does it potentially threaten the administration of justice? I believe the answer is "yes". If our courthouses are not open to the public, courts can not function. If courts can not function delays will occur -- and from early on we have been told time and time again that "justice delayed is justice denied." In today's blog I want to examine the issue of the right to a public trial.

SIXTH AMENDMENT RIGHT TO PUBLIC TRIAL

The Sixth Amendment to the United State Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." This tenet is rooted in "the principle that justice cannot survive behind walls of silence..." see Sheppard v. Maxwell, 384 U.S. 333, 349 (1966). It has been said that "the public trial is "'the most effectual safeguard of testimony, and of the decisions depending on it; it is the soul of justice; it ought to be extended to every part of the procedure, and to all causes.'" see Gannett Co. v. DePasquale, 443 U.S. 368, 422 (1979)(Blackmun, J., concurring in part and dissenting in part); State v. Vanness, 304 Wis.2d 692, 696 (Ct. App. 2007). We are not talking about a casual right but one that the Founding Fathers deemed to be a fundamental.

WISCONSIN CONSTITUTION ARTICLE I, SECTION 7 RIGHT TO A SPEEDY PUBLIC TRIAL

Article I, Section 7 of the Wisconsin Constitution also addresses the right to a public trial in Wisconsin. It provides "in all criminal prosecutions the accused shall enjoy the right...in prosecutions by indictment, or information, to a speedy public trial." A quick reading of this section would seem to indicate that this State right to a public trial is only available to felonies since misdemeanors are are brought by complaint not indictment or information. However, in light of Wisconsin Statutes section 757.14 it would appear that this provision would apply in all criminal prosecutions.

WISCONSIN STATUTE SECTION 757.14

757.14 provides "the sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law...." see also Stevens v. Manitowoc Circuit Court, 141 Wis.2d 239, 244 (1987). The significance of this provision is that it applies to both civil and criminal cases. While the philosophy of the Founding Fathers of the US, Wisconsin and the Wisconsin Legislature is openness, there are exceptions.

STATUTORY EXCEPTIONS TO THE RIGHT TO A PUBLIC TRIAL

Wisconsin Statutes section 48.299, which governs CHIPS, JIPS, Guardianship and TPR actions in juvenile court, sets forth a general rule that hearings be closed to the general public except as provided otherwise within 48.299.

Wisconsin Statutes section 938.299, which governs Delinquency proceedings in juvenile court, sets forth a general rule that hearings be closed to the general public except as provided otherwise within 938.299.

Wisconsin Statutes section 51.20(12), which governs mental commitments in probate court, sets forth the general rule that these proceedings shall be open to the general public unless the subject individual moves that the hearing be closed.

Wisconsin Statutes section 54.44(5), which governs guardianship actions in probate court, sets forth the general rule that these proceedings shall be closed to the general public unless the ward moves that the hearing be open.

Wisconsin Statutes section 55.10(3), which governs protective placement or services actions in probate court, sets forth the general rule that these proceedings shall be open to the general public unless the ward requests that the hearing be closed.

CASE LAW EXCEPTIONS TO THE RIGHT TO A PUBLIC TRIAL

In addition to statutory exceptions to the right to a public trial, case law does recognize other exceptions.

Under Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), a party seeking to bar the court's doors to the public in a criminal case must satisfy a four part test.

(1) The party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial.

(2) The closure must be narrowly tailored to protect that interest.

(3) Alternatives to closure must be considered by the trial court. and

(4) The court must make findings sufficient to support the closure.

Under Braun v. Powell, 227 F.3d 908 (7th Cir. 2000), where an unjustified closure is trivial, there is also no constitutional violation.

Under Peterson v. Williams, 85 F.3d 39 (2nd Cir. 1996), the "triviality standard" looks to whether the actions of the court and the effect that they and on the conduct of the trial and whether it deprived the defendant of the protections conferred by the Sixth Amendment.

Under Vanness, supra, it is important to determine if critical portions of the trial were closed to the public in making a determination if the right to a public trial was violated.

Most recently in State v. Ndina, 315 Wis.2d 653 (2009), the Wisconsin Supreme Court addressed the Sixth Amendment right to a public trial for a criminal defendant. The court held that:

(1) while the right to a public trial it is an important right, and

(2) while there is a presumption of openness, and

(3) while the values served look to:

(a) ensure a fair trial,

(b) remind the court and the prosecutor of their responsibility to the defendant, and

(c) encourage witnesses to come forward, and

(d) discourage perjury,

that the right of a member of the public to attend can be forfeited or lost if justification is shown under Press-Enterprise Co., supra.

CONCLUSION

An examination of the United States and Wisconsin Constitutions and case law tells us that:

(1) The right to a public trial is the constitutional right of every criminal defendant. It is a precious right that must be closely guarded.

(2) Before the constitutional right to a public trial can be restricted the four part Press-Enterprise test must be met.

An examination of Wisconsin Statutes tells us that:

(1) In Wisconsin, the statutory right to a public hearing, open courtrooms and free access to every citizen is to be honored and respected in all court proceedings unless a statutory exception is present or unless Press-Enterprise test is met.