Yesterday, Judge Juan Merchan of the NY Supreme Court , trial division temporarily closed the court to the public by removing the press and jurors to address insolent behavior by a defense witness in Donald Trump's hush money state criminal case in NY.

A fierce debate has arisen among the media and on Twitter (differing opinions by the legal experts) on if and to what degree, this could be reversible structural error that Trump's defense could preserve for appeal.

The right of all criminal defendants to a public trial is guaranteed by the Sixth Amendment to the Constitution and applied to the states via the Fourteenth amendment due process clause. SCOTUS ruled in the 1984 case of Waller v. Georgia that a closure of court to the public can be constitutional only under the following circumstances:

  • the party seeking court closure must advance a vital interest, that in the absence of court closure, is likely to be prejudiced

  • the court closure scope and length can be no broader than needed to preserve that interest in aforementioned bullet point

  • the trial court must make adequate findings of fact to support closure of the court

  • the trial court must consider alternatives prior to closing the court to the public.

Preservation of judicial order and the court's authority would be a vital interest to safeguard against a potentially disruptive / prejudicial defense witness (Bob Costello).


Would the actions of Judge Juan Merchan under the court circumstances of yesterday meet the test SCOTUS set in Waller precedent so as to not create structural error, entitling Trump to automatic conviction reversal upon appeal?

  • "temporarily closed the court to the public". You really think closing the court for like 5 minutes meets the test for automatic conviction reversal? Commented May 21 at 22:34
  • 1
    Personally no, of course. But given the debate, I want some experts here to weigh in
    – Anthony
    Commented May 21 at 22:35
  • 2
    @BlueDogRanch Heckling the OP --especially from an uninformed perspective -- doesn't really advance the discussion. The number of minutes that pass during the closure is highly unlikely to be a particularly relevant consideration in the analysis.
    – bdb484
    Commented May 21 at 22:52
  • 2
    Having the judge rip into a defense witnesses behavior while the jury and media is in the room isn't going to hurt the defendant?
    – Joe W
    Commented May 22 at 0:03

1 Answer 1


Would the actions of Judge Juan Merchan under the court circumstances of yesterday meet the test SCOTUS set in Waller precedent so as to not create structural error, entitling Trump to automatic conviction reversal upon appeal?

A media account of this incident reveals that the court was closed sua sponte without any objections from either the prosecution or the defense, for a few minutes, during the testimony of a final witness, for the defense, who testified for less than an hour in the course of a trial that has had weeks of testimony. Neither the prosecution or the defense objected to any of the statements made by the court either.

It also appears that the transcript of the several minute long exchange involved was released publicly, so all that the public missed was the opportunity to witness live what happened for a few minutes that was publicly disclosed in a transcript the same day.

If this was erroneous at all, which I would tend to doubt, it would almost surely be harmless error. Indeed, it might have been error to chastise a defense witness in front of the jury (and the public) instead, because that might impair the credibility of the defense witness improperly.

The right in question is the Sixth Amendment right to a public trial (as incorporated by the due process clause of the Fourteenth Amendment to the U.S. Constitution).

In a case with exhaustive media coverage, a brief discussion of a single matter involving a single minor witness, without the public present, during which no court rulings were made and no testimony was taken or excluded, in the context of a multi-week trial with many witnesses and exhibits, would not generally constitute "structural error", even if closing the entire case or large portions of testimony would constitute structural error.

The fact that the court closed the courtroom sua sponte rather than at the request of the prosecution, is also relevant to whether the Waller test is actually the right test to apply. A slightly different test than the Waller test might be appropriate, since the Waller case involved a closure of the proceedings at the request of a party, not sua sponte by the court.

  • Appears to be the court's own volition , sua sponte for judge to address witness conduct
    – Anthony
    Commented May 21 at 22:45

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .