The Right to Public Trial
Imagine, if you will, a defendant charged in a criminal case. He is arrested, tried, sentenced and imprisoned. No one sees any of this happen. There is no description of the proceedings in the media and no account of the case in court records.
Sounds unbelievable, doesn't it? But practices such as this were commonplace in Europe shortly before the framers of the U. S. Constitution met to draft the great document. Conscious of the notorious practices of the past, the authors were determined to shed light on the trial process so as to allow for the fair, unprejudiced workings of the young nation's judicial system. The result is the Sixth Amendment and, more specifically, the clause guaranteeing a defendant the right to a public trial.
Probably one of the first forms of public trial originated in old England when the criminal, or "aggressor," was not known. Here the victim "appealed" the person he suspected and charged him with committing the wrong. This meant he challenged the person he suspected to fight it out with him, whether guilt was denied or admitted. This was a "trial" in its most basic sense. It was a test to see whether the perpetrator could be discovered, since it was believed that God would not let the wrongdoer triumph. These private wars were open for all to see. Thus, the public could watch a man branded as a criminal receive his just punishment or have his innocence established and be set free.
The real beginnings of the right to public trial, as we know it today, are unclear. Wording guaranteeing this right does not appear in either the English Petition of Rights of 1621 or in the English Bill of Rights of 1689. Nevertheless, the right to a public trial was a common law privilege.
All this was well known to lawyers within the American colonies. But it is not known if the right, as applied in the 17th and 18th centuries, did the defendant much good. Accused men were treated in the following manner:
1) The prisoner was kept in secret confinement until his trial, and could not prepare for his defense. He was questioned and his answers were taken down.
2) He had no notice of the witnesses lined up against him, and was compelled to defend himself as best he could when the evidence, written or oral, was produced at his trial. He had no counsel either before or at the trial.
3) The witnesses were not confronted with the accused, nor were originals of documents required to be produced.
4) The prisoner was not allowed to call witnesses in his own behalf. If witnesses were called, he never had any way to know what evidence they would give.
Under these conditions, as one can plainly see, it really made little difference to the accused that the trial was public.
The guarantee to an accused of the right to a public trial first appeared in the Pennsylvania Constitution of 1776. Following the ratification of the Sixth Amendment to the U. S. Constitution in 1791, most of the original states and those later admitted to the Union adopted similar constitutional provisions. Missouri provides for this in Article I, Section 18(a) of its Constitution: "That in all criminal prosecutions the accused shall have the right to ..a speedy public trial by an impartial jury of the county."
Whatever the other benefits of such a guarantee, it has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to immediate review in the forum of public opinion is an effective restraint on the possible abuse of judicial power.
In giving content to the constitutional demand that the accused be given a public trial, the various state and federal courts have differed as to what groups of spectators, if any, could be properly excluded from a criminal trial. However, there is a general agreement among courts today that the following procedure is proper:
1) The court need not admit the public beyond the limits of the courtroom's capacity. It does not need to allow the aisles to be crowded or the corridors to be filled so as to prevent orderly passage.
2) The court may order the removal of individual spectators who misconduct themselves in such a way as to render them dangerous or an obstruction to the trial.
3) The court may exclude most or parts of the public if the testimony is likely to be obscene or offensive. But the court cannot, for any reason, exclude the public altogether.
In another situation, a courtroom may be filled with a hostile crowd which could have an overwhelming effect on the jury. In fact, it may reach such proportions that the jury loses all freedom to decide the guilt or innocence of the accused. Then the judge may have the power to restrict the size and/or nature of the audience.
The banning of cameras and the exclusion of television equipment -- for either taped or live broadcast -- is not a denial of the right. Problems of prejudicial publicity have been presented to the courts of the nation, which are empowered to protect defendants from overbearing news media. But the boundaries separating the First Amendment rights of the press and the defendant's Sixth Amendment rights are not fixed. It appears that while it is possible to exclude some persons from the courtroom, it is not permissible to bar completely the public and the press either with or without the agreement of the defendant.
The Sixth Amendment provides all citizens of this nation the opportunity to have their story told before the public. Such a right protects not only the defendant's interests, but also provides society at large with an important safeguard of liberty.