Amanda Cluff, Government Law Review Member
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. This process invites the public and press to observe a trial fully, without any inhibitions, including the questioning of prospective jurors. 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. 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. . . . ” 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.” 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.” 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.
Over the years, disputes have sometimes arisen over public attendance to a criminal proceeding, usually when the case is one of public importance or is high-profile. In previous cases, courts have consistently maintained that the news media and other members of the public can assert a First Amendment right to attend every phase of the trial. This includes the right of the public and the press to attend jury selection proceedings. However, in the controversial and highly-publicized O.J. Simpson murder trial, the public, notably the press, was banned from the courtroom for portions of jury selection, which Los Angeles County Superior Court Judge Ito decided would be privately conducted. The lead prosecutor, Marcia Clark, agreed with Judge Ito, stating that “allowing reporters to cover the questioning of prospective jurors would increase the likelihood that prospective jurors would give disingenuous responses.” In this case, the judge deemed that there was an overriding interest since O.J. Simpson was a former pro-athlete with celebrity status. However, many legal experts disagreed with Ito’s ruling and how he applied to the presumption of openness exception. The New York Times observed that “Most of the legal experts interviewed today disagreed with Judge Ito’s ruling, with some feeling strongly that the judge has thrust the trial into a murky constitutional area that could set bad precedent.”
The Simpson case demonstrates that although almost all agree that there is a public right to attend criminal trials, pretrial jury selection is a tricky grey area, as there may be good reason to keep the public out of the courtroom in specific instances. These dissenters cite threats of improper communications with jurors or even concerns for the jurors’ safety as reasons why certain proceedings should be closed off from the public eye. The very different prospective from the legal community regarding the Simpson jury selection demonstrates the glaring issues of this debate. It is not always clear whether jury selection should be private—certain outside factors are usually determinative.
III. Open Jury Selection in Presley v. Georgia
Recently, the debate regarding the extent of the Sixth Amendment guarantee to public trial has been extended to include whether or not a criminal defendant can request open jury selection under the Sixth Amendment. The answer to this question came only weeks ago, when the Supreme Court ruled in Presley v. Georgia. In this case, the petitioner, Eric Presley, had been convicted of cocaine trafficking in both the Superior Court of DeKalb County and the Georgia Supreme Court. However, Presley appealed his conviction, claiming that his “Sixth and Fourteenth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors.” This occurred when the trial banned Presley’s uncle, who was observing jury selection, stating there was “really no need for [him] to be present” and that there was no “space for [the public] to sit in the audience.” Although this explanation did not seem to meet up to the stringent standard for private jury selection articulated by Supreme Court, both the trial court and Supreme Court of Georgia affirmed the decision. Once Presley asserted that his right to a fair and public hearing had been denied, the trial court dismissed the claim, stating “it’s up to the individual judge to decide… what’s comfortable.” The Supreme Court of Georgia agreed, maintaining that there was “an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire.”
On January 19, 2010, however, the Supreme Court of the United States agreed to hear Eric Presley’s case. In a 7-2 decision, the Supreme Court held that “[t]here could be no explanation for barring the accused from raising a constitutional right that is unmistakably for his or her benefit.” This ruling upheld the importance of the Sixth Amendment right of an accused to enjoy a public trial if he so prefers. However, the Court stressed that this right is not unlimited. The Supreme Court cited that there were exceptions to this rule. In particular, that “[t]he right to an open trial 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.” In particular, the trial court would have to “considerable reasonable alternatives to closing the proceeding” and “make findings adequate to support the closure.” In this way, because his Constitutional right, the defendant is able to decide how to conduct his own case.
IV. What Does This Mean for States?
Today, the extent of the Sixth Amendment right to a public trial is still a hotly debated issue. However, for most courts it seems that the precedent is clear—in most circumstances, the defendant has the right to decide whether or not the jury selection should be publicly or privately conducted. After the Presley v. Georgia Supreme Court ruling, the Associated Press observed that “[t]he significance of Tuesday’s ruling is that it gives defendants the ability to insist on a courtroom that is open to the public even when there is no news media interest in a case” Whether the jury will be tainted by media influence or the First Amendment right of the press to observe a trial is not more important than allowing the defendant his right to a public trial. If an open trial is in the defendant’s best interest, he is entitled to decide whether he wants the jury selection to be public as well. The judge may only determine a private trial in such rare circumstances (such as the Simpson trial) where the jurors and the defendant might need that sort of protection from outside prejudice. These circumstances, however, must be so compelling that a fair trial would not be able to occur without a closed jury selection.
In Presley v. Georgia, the circumstances were not so outrageous as to warrant a closed jury selection proceeding. The defendant did not desire the jury selection to be private, nor did he feel that it was in the best interest for his trial. The differences between his case and the Simpson case are apparent. Simpson would probably not have been able to obtain a fair jury had the media been present to the oversee jury selection process. Although there is no clear definition of a “narrowly tailored” or “overriding interest,” by taking cases into consideration on an ad hoc basis and determining whether or not private jury selection should be considered, a “presumption of openness” will prevail.
Due to the Presley decision, states will now be forced to reexamine their current method of determining when a private jury selection process should be employed. All portions of a trial should be presumed to be public unless extenuating circumstances provide otherwise. This yet again puts the burden on the individual trial judge to determine what is or is not an extraordinary circumstance that can warrant private jury selection. It also makes the use of our adversarial system all the more important, as the only true and unquestionable protection from juror bias is the attorney’s ability to conduct a proper and thorough voir dire. Lawyers will now have to carefully and systematically question potential jurors the even more meticulously in order to get an accurate assessment of who the juror is—something that is arguably difficult to do when the juror is in the public eye. Whether or not this decision is in the best interest of justice for all involved will not be seen for many years to come.
Bill Rankin, U.S. Supreme Court Says DeKalb Judge Should Have Kept Court Open, Atlanta Journal- Constitution, Jan. 20, 2010, available at http://www.ajc.com/news.dekalb/u-s-supreme-court-278548.html.
 Presley v. Georgia, No. 09-5270, 2010 WL 154813, at *2 (U.S. Ga., Jan. 19, 2010).
 U.S. Const. amend. vi.
 Presley, 2010 WL 154813, at *2.
 Linda Greenhouse, High Court Sharply Restricts Secrecy in Selection of Juries, N.Y. Times, Jan. 19, 1984, at A1.
 The Associated Press, Court Says Jury Selection Should Be Open to Public, Wash. Post, Jan. 19, 2010, available at http://abcnews.go.com/Politics/wireStory?id=9604199.
 Kennth B. Noble, Judge Restricts Simpson Coverage, N.Y. Times, Oct. 21, 1994, at A1.
 The Associated Press, supra note 7.
 Presley, 2010 WL 154813, at *2.
 Presley v. State, 674 S.E.2d 909, 910 (Ga. Sup. Ct., Mar. 23, 2009).
 Presley, 2010 WL 154813, at *1.
 Presley, 674 S.E.2d at 911.
 Presley, 2010 WL 154813, at *3.
 Id. (citing Waller v. Georgia, 467 U.S. 39, 45).
 Id. (citing Waller v. Georgia, 467 U.S. 39, 48).
 The Associated Press, supra note 7.
 Presley, 2010 WL 154813, at *4.
 Greenhouse, supra note 6, at A1.