The Criminal Court Audience in a Post-Trial World

By Simonson, Jocelyn | Harvard Law Review, June 2014 | Go to article overview

The Criminal Court Audience in a Post-Trial World


Simonson, Jocelyn, Harvard Law Review


III. THE AUDIENCE AND THE RIGHT TO A PUBLIC ADJUDICATION

In order for local community members to be able to understand, discuss, react to, and hold accountable the behavior of local criminal justice institutions--in order for the Constitution to uphold the values articulated in the Supreme Court's jurisprudence--the protection of the audience must extend into the world of plea bargaining, into today's routine, nontrial courtroom. As the Fifth Circuit recently emphasized, "the fact that there is no jury at ... [a] proceeding ... heightens the need for public access." (145) The Supreme Court has never explicitly weighed in on the application of the right to a public trial in relation to plea bargaining--that is, in the context of a criminal case that will likely end in a guilty plea and accompanying sentencing rather than a trial. The Court has expanded both the First and Sixth Amendment rights beyond the literal trial, however, opening the door for lower courts to do so in the world of plea bargaining. And they have. The First Amendment right expanded first, beginning in the 1980s, as lower courts began to encounter requests for public access to nontrial proceedings. The Sixth Amendment right, in contrast, has spread to pleas and sentencings only in the past few years, thanks in large part to the little-noticed 2010 Supreme Court decision in Presley.

This Part will parse the rights of the audience and the defendant to public and open courtrooms in nontrial proceedings. By nontrial proceedings, I do not mean voir dire, suppression hearings, or other formal hearings in which testimony is given and weighed for its truthfulness, but rather the day-to-day, usually short, "routine" proceedings that comprise the vast majority of court appearances. These include, most importantly, bail hearings, arraignments, plea allocutions, and sentencings, but can also include status conferences in which courtroom players discuss the status of the charges, discovery, or plea negotiations.

I begin by detailing the recent expansion of the First and Sixth Amendment rights into this nontrial world, identifying a nascent jurisprudential trend that recognizes the function of the audience as protecting the democratic accountability of local criminal justice in a world without juries. I spend time telling the story of this recent expansion for two reasons. First, it demonstrates lower courts' embrace of the importance of the constitutional values described above in the nontrial courtroom. Second, it reveals that as the case law has developed, courts have increasingly conflated the scope of the First and Sixth Amendment rights; while the First Amendment right at first seems broader than the Sixth, there is a growing sense that an individual defendant's right to a public trial must be greater than or equal to the public's right to access a courtroom. The result of this conflation is complex, but important: as the First Amendment right of access has extended beyond the literal "trial," the defendant's Sixth Amendment right has followed.

After describing these phenomena, I then look beyond this smattering of cases to address a number of concrete questions that arise when assessing the scope of the First and Sixth Amendment rights in the nontrial courtroom, including: (1) to which criminal proceedings do the rights apply?; (2) how do we know when a remedy is necessary?; and (3) what would that remedy be? I take each question in turn, ultimately arguing that the revitalized rights to a public trial extend to every routine, nontrial criminal court appearance, implicating nationwide patterns of audience overcrowding and exclusion.

a. First Amendment Expansion in Lower Courts

The extension of the First Amendment freedom to listen into the world of plea bargaining--bail hearings, plea proceedings, and sentencing hearings--followed closely behind the Supreme Court's decisions in Richmond Newspapers and the Press-Enterprise cases.

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