The Public Trial Clause

In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial . . . .

—Judge Patrick R. Wyrick & Tyler Shannon

Introduction

The Sixth Amendment guarantees a criminal defendant’s right to a public trial. Little debate surrounded this provision. This scant historical record has generated scholarly debate about the origin of the right, the motivation for its inclusion in the Bill of Rights, and its scope. This essay explores the right’s roots in the English common law, the American trend toward enumeration, and the judicial precedents that have shaped the modern scope of the right.

History Before 1787

The origin of the right of public trial is not entirely clear. This right is not mentioned in the 1689 Bill of Rights, the 1621 Petition of Rights, or the 1215 Magna Carta. Some view the English guarantee of a public trial in criminal cases as a response to the Court of Star Chamber’s use of secret proceedings in criminal cases.¹ Others argue that the right had cemented itself in the English common law far earlier and that the Star Chamber was merely an ignominious departure from that tradition.² Either way, the omission of the right from England’s seminal rights-guaranteeing charters of the times demonstrates its roots in the common law.³ Sir William Blackstone wrote that the “open examination of witnesses . . . in the presence of all mankind, is much more conducive to the clearing up of truth, than private and secret examination. . . . [A] witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal.”⁴

Early American practice, however, trended away from reliance on the common law and toward enumeration of the right. The state constitutions generally guaranteed a criminal trial by jury.⁵ Pennsylvania and Vermont, in particular, specifically guaranteed that those trials must be public.⁶

The Constitutional Convention

On May 29, 1787, Charles Pinckney of South Carolina proposed his draft of the Constitution.⁷ Article IX guaranteed that for “All Criminal offenses . . . trials shall be open and public, and shall be by jury.”⁸ There was no recorded debate on Pinckney’s proposal.⁹ Article III, Section 2 would require that “[t]he Trial of all Crimes . . . shall be by Jury.” (See Essay No. 136.) But there was no requirement that the trials must be public.

The lack of a guarantee of a jury trial in civil matters—and the lack of a bill of rights more generally—became an Anti-Federalist rallying cry.¹⁰ However, there was scant concern over the omission of a public trial guarantee; both Federalist and Anti-Federalist writings lack any extensive discussion of the matter.

Ratification of the Sixth Amendment

In 1788, the New York Convention requested that amendments should be added to the Constitution. One of the proposals was a right to a public trial.¹¹ One year later, the First Congress sent the proposed amendments to the states for ratification. With little fanfare, the right to a public trial for criminal defendants was included.¹² The Public Trial Clause appears to have drawn no criticism or opposition during the ratification debates, even from states whose constitutions did not yet guarantee the right.

Early Practice

Few reported federal and state decisions from the early Republic discuss the right to a public trial.¹³ By the middle of the nineteenth century, however, the law of public trials had largely become a law of exclusions. The common law, Justice Joseph Story wrote, dictated that “the trial is always public.”¹⁴ However, Thomas Cooley explained that the right to a “public” trial does “not mean[] that every person who sees fit shall in all criminal cases be permitted to attend criminal trials.”¹⁵ Rather, in many cases, “the character of the charge, and the nature of the evidence by which it is to be supported” permitted excluding certain members of the public. Nevertheless, the right required that, at a minimum, all of those “whose presence could be of . . . service to the accused” would be permitted to attend.

Cooley’s more practical understanding of the right was adopted by many late nineteenth- and early twentieth-century courts,¹⁶ but they were hardly uniform in their approaches. For example, in 1918, the Arizona Supreme Court concluded that courts are far apart as to what constitutes a “public trial,” often reaching opposite conclusions based on nearly identical facts.¹⁷

A handful of nineteenth-century courts also grappled with the question of when the public must be present. In 1846, the Ohio Supreme Court declared that “all that can be said or [proffered] against [a defendant], and all that can be said or urged in his favor, shall be in the hearing and presence of the public.”¹⁸ This early decision recognized that “witnesses shall give their testimony in public, and the court shall declare the law in public; and the jury are sworn to render their verdict according to the law and the evidence thus publicly given.”¹⁹ State high courts would criticize trial court judges for communicating with juries outside of the presence of the public.²⁰

Modern Precedents

In re Oliver (1948) incorporated the Public Trial Clause against the states.²¹ Incorporation has had minimal practical effect, however, because the right was expressly protected by the constitutions of forty-three states.²² Five states—Maryland, Massachusetts, New Hampshire, North Carolina, and Wyoming—protected the right as a matter of due process or common law, and two—New York and Nevada—protected the right by statute.²³

Oliver recognized that a public trial serves as a “safeguard against any attempt to employ our courts as instruments of persecution.”²⁴ Justice John Marshall Harlan II explained that “the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.”²⁵ Public trials also make proceedings known to potential witnesses and help to deter untruthful testimony.

The right to a public trial is a right shared between the accused and the general citizenry. As a result, “a defendant can, under some circumstances, waive his constitutional right to a public trial, [but] he has no absolute right to compel a private trial.”²⁶ In addition, courts can temporarily close proceedings.²⁷ They can take this extreme step when the “dignity, order and decorum” that are and must be “the hallmarks of all court proceedings in our country” are flagrantly disregarded.²⁸ For example, judges occasionally will close portions of trials to protect minor victims in sex-offense trials or when necessary to preserve the confidentiality of sensitive information, such as the identity of undercover witnesses.²⁹

The guarantee of a public “trial” requires that the impaneling of the jury and return of the verdict must be made in open court. Likewise, certain pretrial proceedings must be public. But the Sixth Amendment does not require that all stages and phases of criminal prosecutions must be open to the public. Grand jury proceedings, for example, are secret. The Supreme Court has adopted a strong presumption in favor of public criminal proceedings, including the selection of jurors during voir dire.³⁰

Open Questions

• Early courts also seem to have understood that the Public Trial Clause protects the public’s right of access.³¹ However, the Supreme Court’s more modern cases place this public aspect of the right in the First Amendment.³² Would the former approach be more consistent with the original public meaning of the Sixth Amendment?³³
• At the Founding, for a trial to be public, it was necessary for members of the public to be physically present in the courtroom. In a world of emerging—and indeed pervasive—video-conferencing technology, to what extent does virtual access to a criminal trial serve as a constitutionally adequate substitute for physical presence?³⁴

1. Eric J. Walz, Note, The Star-Spangled Chamber: The Venire’s Role in Satisfying the Sixth Amendment to the United States Constitution, 46 Suffolk U. L. Rev. 701, 704–05 (2013); Campbell v. State, 11 Ga. 353, 373 (1852). ↩︎
2. Walz, supra at 703–04. ↩︎
3. 3 Story’s Commentaries § 1785. ↩︎
4. 3 Blackstone 373. ↩︎
5. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 83 (1998). ↩︎
6. Pa. Const. of 1776, ch. I, § 9; Pa. Const. of 1790, art. IX, § 9; Vt. Const. of 1777, ch. I, § 10; Vt. Const. of 1786, ch. I, § 11. ↩︎
7. 3 Farrand’s 595. ↩︎
8. Id. at 600. ↩︎
9. Id. at 595. ↩︎
10. Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639, 667–73 (1973). ↩︎
11. 1 Elliot’s 328. ↩︎
12. 1 Annals of Cong. 451–52 (1789). ↩︎
13. Max Radin, The Right to a Public Trial, 6 Temp. L. Q. 381, 384 (1932). ↩︎
14. 3 Story’s Commentaries § 1785. ↩︎
15. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 312 (1868). ↩︎
16. Reagan v. United States, 202 F. 488, 490 (9th Cir. 1913); State v. Brooks, 5 S.W. 257, 264 (Mo. 1887); People v. Swafford, 3 P. 809, 810 (Cal. 1884); Grimmett v. State, 2 S.W. 631, 634 (Tex. Ct. App. 1886). ↩︎
17. Keddington v. State, 172 P. 273, 275 (Ariz. 1918). ↩︎
18. Kirk v. State, 1846 WL 60, at 1 (Ohio 1846). ↩︎
19. Id. ↩︎
20. Id.; Holton v. State, 2 Fla. 476, 498–99 (1849). ↩︎
21. 333 U.S. 257 (1948). ↩︎
22. Kenneth Katkin, “Incorporation” of the Criminal Procedure Amendments: The View from the States, 85 Neb. L. Rev. 397, 444–45 (2005) (citation omitted). ↩︎
23. Id. at 445 (citation omitted). ↩︎
24. Oliver, 333 U.S. at 270. ↩︎
25. Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concurring). ↩︎
26. Singer v. United States, 380 U.S. 24, 35 (1965). ↩︎
27. Waller v. Georgia, 467 U.S. 39, 48 (1984). ↩︎
28. Illinois v. Allen, 397 U.S. 337, 343 (1970). ↩︎
29. 6 Wayne R. LaFave et al., Criminal Procedure § 24.1(b) (4th ed. 2022). ↩︎
30. Presley v. Georgia, 558 U.S. 209, 213–14 (2010). ↩︎
31. State v. Hensley, 79 N.E. 462, 463–64 (Ohio 1906). ↩︎
32. Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 604 (1982) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). ↩︎
33. Amar, supra at 111–13. ↩︎
34. United States v. Allen, 34 F.4th 789 (9th Cir. 2022); Tarpey v. State, 523 P.3d 916 (Wyo. 2023). ↩︎