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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