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.

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