Are You ‘Available?’: An Analysis of the Porco Appeal Before the N.Y. Court of Appeals

Written by David Szalda, Albany Government Law Review Member



On the morning of November 15, 2004, the quiet Albany suburb of Delmar, N.Y. awoke to the news of the murder and attempted murder of Peter and Joan Porco.[1] Sometime in the night, while the two were sleeping an intruder entered their home, and savagely attacked them with an ax.[2] Hours later, police investigators and paramedics arrived at the Porco residence to discover Mr. Porco murdered and Mrs. Porco in her bed barely surviving her traumatic head injuries.[3] Investigator Christopher Bowdish began asking questions of the attack.[4] Eventually, the investigator asked Mrs. Porco if her son Christopher had done this to her and her husband.[5] As Investigator Bowdish and the paramedics would later testify Mrs. Porco responded with an up-and-down ‘nod,’ signaling, yes.[6]

Relying on the ‘nod’ and an abundance of circumstantial evidence the jury convicted the victim’s son, Christopher Porco, for the murder of his father and the attempted murder of his mother.[7] Porco’s appeal to the Second Department was premised among several legal errors, most notably the trial court’s error in admitting the police detectives and paramedics testimony as to Mrs. Porco’s nod as an excited utterance.[8] Upon appeal, the Second Department disagreed, and found the nod inadmissible hearsay.  However, the court held that error harmless because since Mrs. Porco was ‘available’ to testify, Porco’s Sixth Amendment right to confrontation was not violated.[9] On September 21, 2010, the New York Court of Appeals granted Porco’s defense motion for leave to appeal the Second Department’s holdings.[10]

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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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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”