Overview
It is the right of a criminal defendant to have the public admitted to a trial under the Sixth Amendment to the US Constitution. It is the right of members of the public, and of the press, to attend both criminal and civil trials and other court proceedings under the First and Sixth amendments, which for state trials are applied via the Fourteenth. There are limited and rare exceptions to the rights allowed.
Cornell Discussion
The Cornell LII page on "Public trial" reads in relevant part:
The Supreme Court has cited many civic and process-related purposes served by open trials: they help to ensure the criminal defendant a fair and accurate adjudication of guilt or innocence; they provide a public demonstration of fairness; they discourage perjury, the misconduct of participants, and decisions based on secret bias or partiality. Open trials educate the public about the criminal justice system, give legitimacy to it, and have the prophylactic effect of enabling the public to see justice done. {Richmond Newspapers v. Virginia, 448 U.S. 555, 569–73 (1980) (plurality opinion of Chief Justice Burger); id. at 593–97 (Justice Brennan concurring)}. Though the Sixth Amendment expressly grants the accused a right to a public trial {Estes v. Texas, 381 U.S. 532, 538–39 (1965)}, the Court has found the right to be so fundamental to the fairness of the adversary system that it is independently protected against state deprivation by the Due Process Clause of the Fourteenth Amendment.{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)} The First Amendment right of public access to court proceedings also weighs in favor of openness. {Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (Press-Enterprise I)} (Content in {braces} was in the form of footnotes on the LII page -DES)
Note the equation of a "public trial" with an "open trial", and the comments about "a public demonstration of fairness" and "enabling the public to see justice done". All of these imply that the actual trial proceedings are to be open to the public in person.
In re Oliver (1948)
This was a case involving Michigan's unique "one-man Grand jury" Proceeding. After hearing testimony while sitting as a Grand Jury, in secret, as Grand Juries normally do, the district Judge declared that the witness was being evasive and telling lies under oath. He sentenced the witness to 60 days in jail for contempt, still in secret, with no defense allowed and no chance for the person sentanced to consult his lawyer.
In In re Oliver, 333 U.S. 257, 268–70 (1948) the US Supreme Court wrote:
Counsel have not cited and we have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641, and whether that court ever convicted people secretly is in dispute. Summary trials for alleged misconduct called contempt of court have not been regarded as an exception to this universal rule against secret trials.
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. ...
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 lettre 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. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. ...
In giving content to the constitutional and statutory commands that an accused be given a public trial, the state and federal courts have differed over what groups of spectators, if any, could properly be excluded from a criminal trial. But, unless in Michigan and in one-man grand jury contempt cases, no court in this country has ever before held, so far as we can find, that an accused can be tried, convicted, and sent to jail, when everybody else is denied entrance to the court, except the judge and his attaches. And without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged. In Gaines v. Washington, 277 U.S. 81, 85, 86, 48 S.Ct. 468—470, 72 L.Ed. 793, this Court assumed that a criminal trial conducted in secret would violate the procedural requirements of the Fourteenth Amendment's due process clause, although its actual holding there was that no violation had in fact occurred, since the trial court's order barring the general public had not been enforced. Certain proceedings in a judge's chambers, including convictions for contempt of court, have occasionally been countenanced by state courts, but there has never been any intimation that all of the public, including the accused's relatives, friends, and counsel, were barred from the trial chamber.
In the case before us, the petitioner was called as a witness to testify in secret before a one-man grand jury conducting a grand jury investigation. In the midst of petitioner's testimony the proceedings abruptly changed. The investigation became a 'trial,' the grand jury became a judge, and the witness became an accused charged with contempt of court—all in secret. Following a charge, conviction and sentence, the petitioner was led away to prison—still without any break in the secrecy. Even in jail, according to undenied allegations, his lawyer was denied an opportunity to see and confer with him. And that was not the end of secrecy. His lawyer filed in the State Supreme Court this habeas corpus proceeding. Even there, the mantle of secrecy enveloped the transaction and the State Supreme Court ordered him sent back to jail without ever having seen a record of his testimony, and without knowing all that took place in the secrecy of the judge's chambers. In view of this nation's historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment's guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sentenced to prison. (footnotes, including citations, omitted)
When the In re Oliver decision says "that every criminal trial is subject to contemporaneous review in the forum of public opinion" it is speaking of a trial which members of the public have a right to attend, not just read records of after the fact. When it says judges have considered "what groups of spectators, if any, could properly be excluded from a criminal trial" it is again discussing in-person attendance, and saying that at least some such attendance must be permitted.
Richmond Newspapers v. Virginia (1980)
In this matter a case was on its fourth trial. One previous conviction had been overturned on appeal, and then there hd been two mistrials. The Defendants lawyer asked that proceedings be closed. Representatives of two newspapers present said nothing at the time but requested thst the order be changed later that day.
In Richmond Newspapers v. Virginia, 448 U.S. 555, 569–73 (1980) the plurality opinion "concluded that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, distinguished."
The opinion reads:
But here for the first time the Court is asked to decide whether a criminal trial itself may be closed to the public upon the unopposed request of a defendant, without any demonstration that closure is required to protect the defendant's superior right to a fair trial, or that some other overriding consideration requires closure.
The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice....
... In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. ... A trial courtroom is a public place where the people generally—and representatives of the media—have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.
Mr. Justice BRENNAN, joined by Mr. Justice MARSHALL, concluded that the First Amendment—of itself and as applied to the States through the Fourteenth Amendment—secures the public a right of access to trial proceedings, and that, without more, agreement of the trial judge and the parties cannot constitutionally close a trial to the public. Historically and functionally, open trials have been closely associated with the development of the fundamental procedure of trial by jury, and trial access assumes structural importance in this Nation's government of laws by assuring the public that procedural rights are respected and that justice is afforded equally, ...
Mr. Justice STEWART concluded that the First and Fourteenth Amendments clearly give the press and the public a right of access to trials, civil as well as criminal; that such right is not absolute, since various considerations may sometimes justify limitations upon the unrestricted presence of spectators in the courtroom; but that in the present case the trial judge apparently gave no recognition to the right of representatives of the press and members of the public to be present at the trial.
Thus in the Richmond Newspapers case at least 6 justices of the court found that there was a right of public access to courtrooms and trials, although they differed as to whether it is based on the 1st or 6th amendments or both, and under what circumstances exceptions may be made. But they agree that this is a right of the public, and of the press, not just of the defendant, and that an agreement between the defendant, the prosecution, and the judge to exclude members of the public and of the press is not valid without specific findings of fact by the judge showing why this is required to preserve the rights of the defendant. This case has been much cited.
Waller v. Georgia (1984)
In Waller v. Georgia 467 U.S. 39 (1984) the Supreme Court held that closing a pre-trial suppression hearing, over the defendant's objections, violates constitutional rights:
The opinion read:
These cases require us to decide the extent to which a hearing on a motion to suppress evidence may be closed to the public over the objection of the defendant consistently with the Sixth and Fourteenth Amendment right to a public trial.
...
These cases present three questions: First, does the accused's Sixth Amendment right to a public trial extend to a suppression hearing conducted prior to the presentation of evidence to the jury? Second, if so, was that right violated here? Third, if so, what is the appropriate remedy?
This Court has not recently considered the extent of the accused's right under the Sixth Amendment to insist upon a public trial, and has never considered the extent to which that right extends beyond the actual proof at trial. We are not, however, without relevant precedents. In several recent cases, the Court found that the press and public have a qualified First Amendment right to attend a criminal trial. Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). We also have extended that right not only to the trial as such but also to the voir dire proceeding in which the jury is selected. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).
In each of these cases the Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care. We stated the applicable rules in Press-Enterprise:
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. 464 U.S., at 510, 104 S.Ct., at 824.
As noted, the analysis in these cases has proceeded largely under the First Amendment. Nevertheless, there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public. The central aim of a criminal proceeding must be to try the accused fairly, and "[o]ur cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant." Gannett, 443 U.S., at 380, 99 S.Ct., at 2905.
Again the Court is clearly and explicitly protesting the right of public and press attendance at the trial, and the rights of the press to report the events of the trial.
Conclusion
These rights are not absolute, but may only be curtailed for good and specific reason, and only by the least restrictive means feasible. Access to trial transcripts after the fact will not normally be sufficient to satisfy either the 1st or the 6th amendment rights to a public trial.
