Public Trial

Documenting the public trial right’s uncontroverted history as a staple of the Anglo-American legal tradition and assessing the reasoning that has led to courts’ divergent conclusions on courtroom closures.

Explaining that the right to a public trial was incorporated into the American Bill of Rights from English common law and tradition. Arguing that the venire is insufficient to satisfy the public-trial clause of the Sixth Amendment.

Contending that the Founders’ inclusion of the Public Trial Clause reflected the belief that the public nature of a proceeding afforded it legitimacy, as opposed to the modern interpretation of the clause, that a public trial is intended to benefit the accused. Arguing for a more limited application of the triviality doctrine that courts apply to assess courtroom closures.

Refuting the argument that anonymous juries are barred by the Public Trial Clause where a proposed version of the Amendment which would have imported the traditional common law requirement of jury identification was rejected in 1789 and, instead, jury identification requirements were administered through statute. Arguing that, while the Framers and Founding-Era scholarship discussed “reputational accountability,” this concern was directed at judges and witnesses rather than the jury and that both sources are silent with regard to the reputation of jurors. Contending further that the Founding-Era concern with local juries was based on their familiarity with the community rather than subjection to reputational scrutiny.

Arguing that inclusion of the right to a public trial in the Constitution was intended to involve public knowledge into trials and thereby serve as a truth-seeking function.