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.

          Despite the weight given to the “public trial” right, the defendant’s ability to demand a public voir dire is not limitless.[7]  While the accused may demand that the juror voir dire be public, this right “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.”[8]  The Court noted that these exceptions would be “rare”[9] and articulated a standard to determine whether to exclude the public from criminal proceedings:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.[10]

The Court went so far as to state that trial courts must consider alternatives to closing voir dire to the public, even when the defense or the prosecution does not suggest any.[11] 


The “Right” May be Wrong

          By emphasizing the infrequency of exceptions and forcing judges to search for alternatives to non-public voir dires, the Court placed the burden of justifying closed voir dires on the government.  This burden falls upon the prosecution and trial court judges because the Presley majority concocted a new meaning for the word “trial.”   Under the Sixth Amendment, which the majority used to extend the right to an open voir dire to criminal defendants, the accused is entitled to a “public trial.”[12]  A trial is defined as “[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding.”[13] 

          Linguistically, a voir dire is in no way a trial; it is “[a] preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified . . . to serve on a jury (emphasis added).”[14]  Voir dire is not an adversary proceeding.[15]  Jurors do not examine evidence or determine legal claims before they have been sworn in as members of the jury.  Thus under a textual reading of the Sixth Amendment, the majority in Presley incorrectly applied the Sixth Amendment to voir dire proceedings.

          Common sense also precludes concluding that a pre-trial proceeding is a trial.  How can something that occurs prior to a trial be a trial in and of itself?[16]  Interpreting the Sixth Amendment’s protection of trials to include non-trials, is much like trying to fit a square peg into a round hole; a square will never be a circle, and a pre-trial proceeding will never be a trial.  Even if a creative stretch of one’s imagination could bring a voir dire under the fold of Sixth Amendment public trial protection, the rest of the text would undermine this definitional creativity.  In addition to public trials, the Sixth Amendment ensures the right to speedy trials and jury trials.[17] “It is unimaginable that the Court would agree that these rights could be extended to pre-trial proceedings, by holding either that defendants are entitled to have pre-trial proceedings occur in a speedy manner or that pre-trial proceedings ought to be conducted before juries.”[18]  No precedent has held that either of those ‘rights’ exists, and to do so would not only fly in the face of the Sixth Amendment, but also waste judicial time and resources.

          Perhaps the Presley Court’s interpretative troubles stem from the fact that the holding is supported by a shaky foundation.  The majority exclusively relies on Press-Enterprise and Waller, to justify a defendant’s Sixth Amendment right to insist on a public voir dire.[19]  As Justice Thomas’ dissent points out, however, neither of these cases is directly on point.  While decided using the Sixth Amendment, the issues in Waller involved a suppression hearing, not a voir dire.[20]  Press-Enterprise grounded the right in the First Amendment, and gave the ability to attend a voir dire to the public.[21]  Thus it is unclear at best, whether the precedents the majority so heavily relied upon, actually support the conclusion that defendants are entitled to insist that a voir dire be public under the Sixth Amendment.

          Another shortcoming in the majority’s reasoning is that while it grounds its decision in the Sixth Amendment, it applies a First Amendment balancing test.  The ‘exceptions’ that the Court articulates suggest that other interests can and should be balanced against the defendant’s right to a public trial.[22]  Assuming, arguendo, that voir dire is protected by the Sixth Amendment, the Amendment’s text gives no indication that the rights granted therein are not absolute.[23]  Since the Court in Presley and Waller did not draw a definite distinction between pre-trial and trial proceedings, there is a danger that “trials [may be closed] over the defendant’s objection as much as [the balancing approach allows] the closure of pre-trial proceedings.”[24]


What the Court Could Have Done

          If the Presley majority wanted to avoid the aforementioned issues, it could have taken the time to issue a full opinion.  Justice Thomas noted that since neither Waller nor Press-Enterprise directly answered the question presented in Presley, “that acknowledgement should have eliminated any basis for disposing of [the] case summarily.”[25]  Perhaps had the Court not presumed that the Sixth Amendment entitled a defendant to demand a public voir dire, it could had addressed how a voir dire fits into the protection of a “public trial.”  The Court undermined its own holding by simply contending that the right was pre-established, but failing to explain why.  Many questions were left unanswered by the majority, including how a pre-trial proceeding is actually a trial, why a First Amendment balancing test was appropriate, or why judges must now consider alternatives to closure sua sponte.[26]  The Court could, and arguably should, have proposed that the defendant’s right to a public voir dire was grounded in the First Amendment, which would have been directly supported by Press-Enterprise.

          The Court’s conclusions were not adequately justified.  Instead, they were merely stated as truths, seemingly based (at least in part) on the incredulity that Joe Public could claim a right to an open voir dire, while the defendant could not.  Incredulity does not a constitutional argument make, and in Presley, the majority’s lack of directly applicable precedent and discussion of key issues undermined a holding that is highly beneficial to criminal defendants and necessary to a fully functioning criminal justice system.

[1] Presley v. Georgia, 130 S. Ct. 721, 724 (2009).

[2] Press-Enterprise Co. v. Superior Court of Cal., Riverside County, 464 U.S. 501, 509 n.8, 513 (1984).

[3] Waller v. Georgia, 467 U.S. 39, 50 (1984).

[4] Presley, 130 S. Ct. at 724.

[5] See, e.g. U.S. Const. amend. V, VIII.

[6] U.S. Const. amend.VI.

[7] Presley, 130 S. Ct. at 724.

[8] Id. (quoting Waller v. Georgia, 467 U.S. 39, 45 (1984)).

[9] Presley, 130 S. Ct. at 724.

[10] Id. (quoting Waller, 467 U.S. at 48).

[11] Presley, 130 S. Ct. at 724.

[12] U.S. Const. amend. VI.

[13] Black’s Law Dictionary 1644 (9th ed. 2009).

[14] Id. at 1710.

[15] Id. at 62 (an adversary proceeding is defined as “[a] hearing involving a dispute between opposing parties”).

[16] See Sanjay Chhablani, Disentangling the Sixth Amendment, 11 U. Pa. J. Const. L. 487, 530 (2009).

[17] Id.; see U.S. Const. amend. VI.

[18] Chhablani, supra note 16, at 530.

[19] See Presley, 130 S. Ct. at 724.

[20] Id. at 726 (Thomas, J., dissenting); Chhablani, supra note 16, at 529 (whether Waller was decided correctly is also debatable, since “nothing in the text [of the Sixth Amendment] . . . provides for this right to public proceedings prior to or after a trial”).  

[21] Presley, 130 S. Ct. at 726 (Thomas, J., dissenting).

[22] See Chhablani, supra note 16, at 531.

[23] Id.

[24] Id.

[25] Presley, 130 S. Ct. at 726 (Thomas, J., dissenting).

[26] See id. at 726–27.

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