The Star-Spangled Chamber: The Venire's Role in Satisfying the Sixth Amendment to the United States Constitution

Article excerpt

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings." (1)

I. INTRODUCTION

The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a public trial. (2) This right, although fundamental, is not absolute. (3) The Supreme Court has held that a criminal defendant's public-trial right extends to pretrial proceedings including suppression motions and voir dire of potential jurors. (4) Moreover, several circuit courts considering the matter have concluded that the right to a public trial also includes jury-selection proceedings and omnibus hearings. (5) State courts, especially Massachusetts courts, have followed suit in finding structural error when the courtroom is closed during voir dire, jury selection, or trial. (6)

The Sixth Amendment also guarantees a defendant's right to be tried by an impartial jury. (7) An impartial jury comprised of the defendant's peers aims to prevent overzealous prosecution and biased judges. (8) Jury-selection proceedings protect criminal defendants by finding an impartial cross section of the community. (9) This cross section is derived from a panel of prospective jurors, called a venire. (10)

Recently, appellate courts have begun aggressively canvassing cases where defendants allege a violation of their public-trial rights under the Sixth Amendment, reversing those cases when judges excluded the public from voir dire. (11) Although one could argue that appellate courts have impliedly rejected the notion that a venire is sufficient to satisfy a defendant's Sixth Amendment rights under these circumstances, some courts have found otherwise. (12) For instance, in Bucci v. United States, (13) the First Circuit found that the exclusion of some, but not all, members of the public from voir dire resulted in "partial" rather than "total" closure, but declined to decide whether such partial closure would constitute structural error requiring reversal. (14) Nor did it explicitly consider whether the venire satisfies the constitutional requirements for a public trial. (15)

While courts pick through the web of legal questions that have and will continue to infect Sixth Amendment analysis, it is worth explicitly considering if the venire is sufficient to satisfy public trial concerns. (16) This Note will begin by considering the historical development of the public trial and trial-by-jury clauses of the Sixth Amendment from their English roots through modern caselaw analysis. (17) Then, it will briefly touch on the historical role of the venire. (18) Finally, it will argue that the venire is insufficient to satisfy the public-trial clause of the Sixth Amendment. (19)

II. SIXTH AMENDMENT HISTORY: FROM ITS ROOTS TO MODERN CASE-LAW ANALYSIS

A. The Right to a Public Trial

1. English Development of Public-Trial Rights and Theories Behind Incorporation

Many authors opine on the origin of the Sixth Amendment's public-trial guarantee. (20) In England, neither the Magna Carta, nor England's Petition of Right of 1621, nor the Bill of Rights of 1689 guarantees a public trial. (21) Some evidence posits that the right developed from English common law sometime in the sixteenth and seventeenth centuries, and "obtain'd [its] Force by immemorial Usage or Custom." (22) Matthew Hale, an English common-law judge and legal scholar of the seventeenth century noted that the common law required that:

   the Evidence on either Part is given in upon the Oath of Witnesses,
   or other Evidence by Law allowed ... in the open Court, and in the
   Presence of the Parties, their Attornies, Council and all
   By-standers, and before the Judge and Jury, where each Party has
   Liberty of excepting, either to the Competency of the Evidence, or
   the Competency or Credit of the Witnesses, which Exceptions are
   publickly stated, and by the Judges openly or publickly allowed or
   disallowed, wherein if the Judge be partial, his Partiality and
   Injustice will be evident to all By-standers. …