The Sixth Amendment to the Constitution provides “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Essential to this right is the requirement that the juror selection process be public. Yet D.C. courts routinely ignore this requirement, through the use of a “husher” device (a white noise machine) during these proceedings, preventing the public from hearing prospective jurors’ answers.
In Waller v. Virginia, the Supreme Court set out a list of requirements that allow the public to be excluded from a portion of a trial only in rare circumstances. The default assumption in criminal trials is that they are to remain open to the public. In order to partially close proceedings, a party must first identify an overriding interest specific to the particular case at hand that would be prejudiced by an open trial. Once a specific interest has been established, the court may devise a closure that is no broader than required to preserve this interest. This may consist of, for example, closing the courtroom for no longer than necessary to hear sensitive testimony, or blocking the face of an individual whose identity presents privacy concerns. Even then, the court must still consider reasonable alternatives to closure, and must find that the interest articulated is sufficient to support the closure procedures devised. Only then may a trial be partially closed from the public view.
However, the D.C. courts have failed to follow these requirements, citing a general concern over the candor of prospective jurors (without referencing any case specific facts), in order to justify the use of a husher device to cloak the voices of prospective jurors. Cato has therefore filed an amicus brief, arguing that the practice of the D.C. courts runs counter to the requirements of Waller, which demand the court identify an overriding interest specific to the particular case before allowing for partial closure. Eschewing this requirement, and allowing for closure based on a general concern (applicable to all cases), would allow any sitting judge to “re‐shape the public trial right according to his or her own personal predilections,” further reducing public trust in our criminal justice system, and depriving the system of the essential benefits of public supervision.
Protecting the right to a public jury trial is especially important now, given that the jury trial itself has been almost entirely eclipsed by the practice of coercive plea bargaining. The Constitution commands that “the trial of all crimes shall be by jury,” yet the overwhelming majority of convictions today are obtained through guilty pleas, not jury trials. And there is ample reason to believe that many criminal defendants—regardless of factual guilt—are effectively coerced into taking pleas, simply because the risk of going to trial is too great. While there is no panacea to the problem of coercive plea bargaining, the least we can do to avoid further discouraging defendants from exercising their right to a jury trial is to ensure that the public component of that right is vigorously protected.
