Annotation 3 - Sixth Amendment
''This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial. In this country the guarantee to an accused of the right to a public trial first appeared in a state constitution in 1776. Following the ratification in 1791 of the Federal Constitution's Sixth Amendment . . . most of the original states and those subsequently admitted to the Union adopted similar constitutional provisions. Today almost without exception every state by constitution, statute, or judicial decision, requires that all criminal trials be open to the public.
''The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the letter de cachet. All of these institutions obviously symbolized a menace to liberty. . . . Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.'' 29 The purposes of the requirement of open trials are multiple: it helps to assure the criminal defendant a fair and accurate adjudication of guilt or innocence, it provides a public demonstration of fairness, it discourages perjury, the misconduct of participants, and decisions based on secret bias or partiality. The Court has also expatiated upon the therapeutic value to the community of open trials to enable the public to see justice done and the fulfillment of the urge for retribution that people feel upon the commission of some kinds of crimes. 30 Because of the near universality of the guarantee in this country, the Supreme Court has had little occasion to deal with the right. It is a right so fundamental that it is protected against state deprivation by the due process clause, 31 but it is not so absolute that reasonable regulation designed to forestall prejudice from publicity and disorderly trials is foreclosed. 32 The banning of television cameras from the courtroom and the precluding of live telecasting of a trial is not a denial of the right, 33 although the Court does not inhibit televised trials under the proper circumstances. 34
The Court has borrowed from First Amendment cases in protecting the right to a public trial. Closure of trials or pretrial proceedings over the objection of the accused may be justified only if the state can show ''an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'' 35 In Waller v. Georgia, 36 the Court held that an accused's Sixth Amendment rights had been violated by closure of all 7 days of a suppression hearing in order to protect persons whose phone conversations had been taped, when less than 2<SUP>1/<INF>2 hours of the hearing had been devoted to playing the tapes. The need for openness at suppression hearings ''may be particularly strong,'' the Court indicated, due to the fact that the conduct of police and prosecutor is often at issue. 37 However, an accused's Sixth Amendment-based request for closure must meet the same stringent test applied to governmental requests to close proceedings: there must be ''specific findings . . . demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.'' 38
The Sixth Amendment guarantee is apparently a personal right of the defendant, which he may in some circumstances waive in conjunction with the prosecution and the court. 39 The First Amendment, however, has been held to protect public and press ac cess to trials in all but the most extraordinary circumstances, 40 hence a defendant's request for closure of his trial must be balanced against the public and press right of access. Before such a request for closure will be honored, there must be ''specific findings . . . demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.'' 41
[Footnote 29] In re Oliver, 333 U.S. 257, 266 -70 (1948) (citations omitted). Other panegyrics to the value of openness, accompanied with much historical detail, are Gannett Co. v. DePasquale, 443 U.S. 368, 406 , 411-33 (1979) (Justice Blackmun concurring in part and dissenting in part); Richmond Newspapers v. Virginia, 448 U.S. 555, 564 -73 (1980) (plurality opinion of Chief Justice Burger); id. at 589-97 (Justice Brennan concurring); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 -07 (1982).
[Footnote 30] Estes v. Texas, 381 U.S. 532, 538 -39 (1965); Richmond Newspapers v. Virginia, 448 U.S. 555, 569 -73 (1980) (plurality opinion of Chief Justice Burger); id. at 593-97 (Justice Brennan concurring).
[Footnote 31] In re Oliver, 333 U.S. 257 (1948); Levine v. United States, 362 U.S. 610 (1960). Both cases were contempt proceedings which were not then ''criminal prosecutions'' to which the Sixth Amendment applied (for the modern rule see Bloom v. Illinois, 391 U.S. 194 (1968)), so that the cases were wholly due process holdings. Cf. Richmond Newspapers v. Virginia, 448 U.S. 555, 591 n.16 (1980) (Justice Brennan concurring).
[Footnote 32] Cf. Sheppard v. Maxwell, 384 U.S. 333 (1966); Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).
[Footnote 33] Estes v. Texas, 381 U.S. 532 (1965). Cf. Nixon v. Warner Communications, 435 U.S. 589, 610 (1978).
[Footnote 34] Chandler v. Florida, 449 U.S. 560 (1981).
[Footnote 35] Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (Press-Enterprise I).
[Footnote 36] 467 U.S. 39 (1984).
[Footnote 37] Waller v. Georgia, 467 U.S. 39, 47 (1984) (indicating that the Press-Enterprise I standard governs such 6th Amendment cases).
[Footnote 38] Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986) (Press-Enterprise II).
[Footnote 39] Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
[Footnote 40] Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). See also Gannett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (Justice Powell concurring).
[Footnote 41] Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). See First Amendment discussion supra pp.1105-08.