An Open Courts Checklist: Clarifying Washington's Public Trial and Public Access Jurisprudence

By Lutzenhiser, Jeanine Blackett | Washington Law Review, December 2012 | Go to article overview

An Open Courts Checklist: Clarifying Washington's Public Trial and Public Access Jurisprudence


Lutzenhiser, Jeanine Blackett, Washington Law Review


Author's Note: As this issue went to press, the Washington State Supreme Court decided four cases involving the right to public trial and the open administration of justice: In re Personal Restraint of Morris, State v. Sublett, State v. Paumier, and State v. Wise.* The fourteen separate opinions in these cases demonstrate that the Court is far from agreement, and that important questions regarding Washington's open courts jurisprudence remain unanswered. In short, the decisions do not appear to definitively resolve the dilemmas that this Comment attempts to address and that trial courts still face. A response to these decisions in the June 2013 issue of this publication will more closely examine their impact on Washington open courts jurisprudence.

Abstract:

Fundamental to the American system of justice is the right to a public trial and a general presumption of openness in judicial proceedings. These values are reflected in the First and Sixth Amendments of the United States Constitution and in many state constitutions. Washington is one of a number of states whose constitution (unlike the U.S. Constitution) also explicitly guarantees the open administration of justice. Constitutional dilemmas arise when a party requests the closure of a courtroom or the sealing of documents. These requests force courts to harmonize values of open justice with other compelling interests. U.S. Supreme Court decisions such as Richmond Newspapers, Inc. v. Virginia and Waller v. Georgia have provided guidance to states developing their own public trial jurisprudence. The Washington State Supreme Court used U.S. Supreme Court decisions to develop its own five-factor test for determining the constitutionality of closed proceedings in the criminal context in State v. Bone-Club. Since Bone-Club, however, many trial courts have failed to apply the factors articulated by the Court. This has resulted in many costly, high-profile reversals of convictions because of public trial violations. What could make the Bone-Club factors clearer and more practical for trial courts? This Comment argues that the Bone-Club test should become an "open courts checklist" that begins with a threshold question: Is the proposed action in fact a closure? If the answer is no, the rights to public access and public trial are not implicated. If the answer is yes, there remain six questions a trial court must ask on the record to evaluate the constitutionality of a proposed closure. Checklists have been employed in the fields of aviation and medicine for decades to ensure safety and procedural integrity. In a judicial context, an open courts checklist can provide clear, workable standards that will assist trial courts and leave a clear record for review. The goal is both improved judicial economy and the safeguarding of these essential constitutional rights and values.

INTRODUCTION

Publicity . . . is the soul of justice.1

- Jeremy Bentham

Since even before the founding of the United States, there has been a presumption of openness in the American administration of justice. According to the Sixth Amendment to the U.S. Constitution, a criminal defendant enjoys the right to a public trial, which safeguards the defendant's civil rights and helps ensure the integrity of the justice system.2 The First Amendment guarantees, among other rights, the rights of free speech, press, and assembly.3 Throughout the nation's history, the freedoms of speech and assembly have also been understood to encompass the right to listen and be present at important government functions such as trials.4 Twenty-seven state governments,5 including Washington's, have emphasized this value of openness in their state constitutions by including provisions to the effect that "[j]ustice in all cases shall be administered openly."6

One of the thorniest constitutional challenges criminal defendants and civil litigants raise at trial and on appeal is the issue of courtroom closure. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

An Open Courts Checklist: Clarifying Washington's Public Trial and Public Access Jurisprudence
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.