The Sixth Amendment to the U.S. Constitution provides defendants in criminal cases with the right to a public trial. The right can be waived, but a defendant usually cannot avoid publicity altogether. This is because courts have established that the First Amendment gives the public and the press a right of access to court proceedings. If the rights of the defendant conflict with the rights of the public and the media, however, the rights of the defendant usually will prevail.
Many public policy reasons support carrying out legal proceedings in public. These can include accountability, transparency, and fairness. The general public benefits from seeing how the criminal justice system performs, and judges and prosecutors may have a greater incentive to uphold their duties if they know that the public is watching. Witnesses also have been thought to be less likely to lie in a public setting, and making a trial public ensures that potential witnesses are aware of it.
Key Features of a Public Trial
Making a trial public does not mean that the media has unlimited access to the proceedings or that the trial needs to be held in an easily accessible location. The constitutional right requires only that ordinary citizens can attend a trial and that the media can release an account of the proceedings. However, judges have the right to exclude the media from sensitive portions of the trial, and they may sequester witnesses so that they cannot see the stages of the trial that precede their testimony.
Courts must provide notice of proceedings to the public, often in a newspaper, but they do not need to be advertised. Notice does not need to be provided more than a week or two ahead of the trial.
There are some exceptions to public trials when the judge determines that making the proceedings public would pose a serious risk of harm. This allows them to limit the spectators to courtroom personnel. However, a judge must consider less restrictive alternatives to closing the courtroom if they would protect the defendant’s right to a fair trial and adequately protect the public safety. Alternatives might involve preventing the media from attending the trial or limiting public attendance to parts of the trial. A Sixth Amendment challenge may arise on appeal if a judge completely closes the courtroom.
Some situations in which complete closure may be appropriate include cases involving gang activities, sex crimes, and crimes that offend public notions of decency. If a court is trying a case involving organized crime, safety issues might warrant closing the courtroom to protect witnesses and court personnel. Sometimes a judge may close a courtroom to protect the identity of a rape victim, a child victim, or an undercover police officer. If the evidence presented in the case involves depictions of graphic sex or violence, the judge may feel that these materials should not be exposed to public view. Cases involving the theft of confidential information may require a judge to close the courtroom, since publicly disclosing the information could harm the victim.
A judge may issue a “gag order” on attorneys, parties, and witnesses to prevent them from discussing the case outside court. Gag orders are one way to protect a defendant’s right to a fair trial, although they are employed in limited circumstances because they hinder the public’s right of access to proceedings.
Juvenile court proceedings are an exception to the right to public trials. These are generally closed to limit the future consequences for the juvenile defendant. (Their name is usually removed from the court documents for the same reason.) If a juvenile defendant is being tried as an adult, they are not entitled to these protections.