The Right to a Public Trial: Should Jury Selection in Criminal Cases Be Open to the Public?

Amanda Cluff, Government Law Review Member

I. Background

In criminal procedure, the pretrial jury selection process has rapidly altered within the last two decades.  No longer can a criminal trial be considered private and confidential, but rather the law has changed in favor of what is known as “open courtroom” proceedings.[1]  This process invites the public and press to observe a trial fully, without any inhibitions, including the questioning of prospective jurors.[2]  As the result of a recent Supreme Court decision, states must now grant an accused defendant the right to a public jury selection once requested, particularly the voir dire questioning that a prospective juror must go through.[3]  However, arguments have recently arisen over how jury selection will be affected by this change, and whether or not a public voir dire will irrevocably damage the process of finding a fair and impartial jury.


II. The Right to a Public Trial in Criminal Cases

In recent years, although the right to a public trial has been upheld, no one knew exactly how far that right could extend.  The Sixth Amendment observes that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . . ”[4]  In addition, the Supreme Court has recently held that “[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.”[5]  In fact, they have even gone as far to assert that there is a “presumption of openness” at a trial that “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to preserve that interest.”[6]  It is clear that this kind of burden is very difficult to obtain, and therefore, most cases are deemed public and open before they even commence. What is less clear is in what circumstances the jury selection in a public criminal trial can become a private matter.

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Albany Government Law Review Releases Issue On Immigration Law Reform

Dan Feintuck, Managing Editor For Technology and Development

The Albany Government Law Review is proud to announce the release of Volume 3, Issue 1, titled Immigration Policy in the United States: What’s Next?  The issue includes a thorough analytical discussion of United States immigration policy.  The law review’s most sizable issue to date comprises 502 pages of scholarship from practitioners, law professors, an Immigration Judge, and individuals working for policy think tanks.

With its fifth publication, the Albany Government Law Review continues its dedication to tackling timely and important topics.  “The Albany Government Law Review aims to be at the forefront of scholarship on hot-button issues that the United States faces today,” said Editor-in-Chief Benjamin L. Loefke. “The United States has historically accepted large numbers of immigrants and has had to continually evolve its immigration policy.  The recent congressional debate on immigration reform makes this a key time to examine the sticker questions of immigration law, especially as it relates to the economy,” added Mr. Loefke.

Professor Patricia Salkin, Associate Dean; Raymond and Ella Smith Distinguished Professor of Law; and Director of the Government Law Center at Albany Law School, and Dr. Paul Finkelman, the President William McKinley Distinguished Professor of Law & Public Policy, are the faculty advisors for the Albany Government Law Review.  Professors Finkelman and Salkin stated: “We are very proud of the high caliber of scholarship that the Albany Law Government Law Review has already produced, and we are confident that this issue will continue the tradition of high quality work and timeliness of challenging subject matter that we have come to expect from the Albany Government Law Review.”

Check out our subscription page of the Albany Government Law Review website to subscribe to our bi-annual publication. The latest issue of the Albany Government Law Review is now available for purchase! For more information on how obtain a copy, visit our website:

A Right or Not a Right: Criminal Defendants, Open Voir Dire, and Presley v. Georgia

Lisa Alexander, Albany Government Law Review Member


The Right to Voir Dire  

          According to a recent Supreme Court decision, that which we call a trial, by any other name would, and does, include voir dire.

          Presley v. Georgia, decided on January 19, 2010, held that criminal defendants have the right to “insist that the voir dire of the jurors be public” under their Sixth Amendment right to a public trial.[1]  The press has enjoyed the right to demand a public voir dire for over two decades, when the Court in Press-Enterprise Co. v. Superior Court concluded that the press’ right to observe voir dire proceedings fell under the First Amendment.[2]  The right to public pre-trial proceedings was again extended in Waller v. Georgia, which held that the right to a public trial encompassed motion to suppress hearings.[3]  Until Presley, the Court had never afforded the right to demand that a voir dire proceeding be public to criminal defendants.  This, according to the Presley Court, was simply unfair.

          In finding that criminal defendants are entitled to a public voir dire, the Court argued that “there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has.”[4]  Looking at the Bill of Rights, this appears to be a logical conclusion, given that each provision relating to criminal proceedings provides protections for defendants.[5]  The crux of Presley’s argument, the Sixth Amendment, states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial (emphasis added) . . . . ”[6]  It would make little sense if a person, with no connection to the criminal proceeding, could claim a right to a public voir dire, while the defendant on trial, for whose protection the Sixth Amendment was created, could not.

Continue reading “A Right or Not a Right: Criminal Defendants, Open Voir Dire, and Presley v. Georgia”

Clemens v. McNamee: What Fueled the Rocket?

Michael Carroll, Albany Government Law Review Member


          On February 13, 2008, the House Committee on Oversight and Government Reform held a hearing that drew the attention of all the national media outlets in the United States.[1]  The hearing was televised live, and many Americans closely watched the testimony of the star witness involved.  One month earlier, this witness had a chance to explain the circumstances that brought him to Congress in an exclusive interview on “‘60 Minutes.’”[2]  However, the situation this witness faced in February was different than his television interview.  While in front of the Committee, he was required to take an oath to testify truthfully, and he had to endure questioning from some members of Congress who highly doubted his credibility and cast doubt on the validity of his illustrious career.  The hearing “split along partisan lines,” seeing Democrats attack the witness and Republicans defend him.[3]  This political tension did not occur as a result of testimony from a government official or a CEO of an American corporation.  Instead, it was the testimony of Roger Clemens that caused this political rift.



          Roger Clemens, a former pitcher for the Boston Red Sox, Toronto Blue Jays, New York Yankees, and Houston Astros, had a career that spanned from 1984 to 2007.[4]  Mr. Clemens compiled 354 wins “seven Cy Young Awards . . . [and was] named to All-Star teams eleven times.”[5]  When Mr. Clemens retired in 2007, Major League Baseball (MLB) faced allegations of widespread steroid abuse by some of the sport’s top players.  With criticism coming from the media, the U.S. government, and baseball fans, the Commissioner of the MLB, Bud Selig, requested that former United States Senator George Mitchell undertake an independent investigation looking into the use of performance enhancing drugs (PEDs) in MLB.[6]  After performing this investigation, Senator Mitchell submitted a report to MLB in December 2007 which alleged that Roger Clemens (among others) used PEDs.[7] 

          The principle source of information regarding Roger Clemens’ use of PEDs was gleaned from his former trainer, Brian McNamee.[8]  At the time of the Mitchell investigation, Mr. McNamee had already been the subject of an inquiry by the U.S. Attorney’s Office for the Northern District of California as “a possible sub-distributor” of PEDs.[9]  As a part of this investigation, Mr. McNamee entered into a written agreement with the U.S. Attorney’s Office that “no truthful statements [could] be used against [him] in any federal prosecution by that Office.”[10]  At the request of the U.S. Attorney’s Office, Mr. McNamee held several interviews with staff working on the Mitchell Report.  At these meetings, Mr. McNamee was told that he faced possible “criminal charges if he made any false statements,” and that all of his statements made for the Mitchell Report were “subject to his written agreement with the U.S. Attorney’s Office.”[11] 

Continue reading “Clemens v. McNamee: What Fueled the Rocket?”