CONTENTS INTRODUCTION I. THE JURY AND THE AUDIENCE A. A CRITIQUE OF THE JURY-CENTRIC APPROACH B. DISTINGUISHING THE AUDIENCE FROM THE JURY C. THE EXCLUSION OF THE AUDIENCE TODAY II. THE AUDIENCE AND THE RIGHT TO A PUBLIC TRIAL A. CHECKING ABUSES OF POWER B. ENHANCING SELF-GOVERNMENT AND DEMOCRACY C. AN AUDIENCE OF LOCALS III. THE AUDIENCE AND THE RIGHT TO A PUBLIC ADJUDICATION A. FIRST AMENDMENT EXPANSION IN LOWER COURTS B. PRESLEY AND THE SIXTH AMENDMENT EXPANSION C. THE SCOPE OF THE RIGHTS TODAY 1. WHICH PROCEEDINGS? 2. WHAT MUST A COURT DO TO ENSURE THE RIGHTS 3. WHAT ARE THE REMEDIES IV. ENFORCING THE CONSTITUTIONAL PROTECTION OF THE AUDIENCE A. PHYSICAL EXCLUSION B. IMPLICIT EXCLUSION AND THE QUALITY OF THE FREEDOM TO LISTEN CONCLUSION
The Sixth Amendment provides for twin engines of public accountability for the prosecution of crimes: the right to a jury trial and the right to a public trial. These two constitutional mechanisms --the jury and the audience--assure both defendants and communities that every prosecution will take place in full view and with the participation of the public. Today, a criminal jury trial is a rare phenomenon. Criminal court audiences, in contrast, are everywhere. On any given weekday across America, throngs of people attempt to gain access to local courtrooms to watch the cases in which their friends, family, and community members have been either victimized or accused of a crime. While audience members sit waiting for the one case they are there to see, they also view other short appearances--pleas, sentencings, case conferences, and adjournments--that together make up criminal adjudication in the world of plea bargaining. These audience members often constitute the only representatives of the public observing the criminal justice system in action. This reality makes the audience more important than it has been in centuries past. Instead of serving as a complement to the jury system, the audience is the public representation in the criminal courtroom.
Many scholars lament the lack of public participation in American criminal justice today, especially in state courtrooms adjudicating low-level cases: now that the vast majority of criminal cases end in guilty pleas rather than in jury trials, the public has minimal input into and receives little information about the behind-the-scenes decisions and negotiations that lead to these plea bargains. (1) However, scholarly analyses of the criminal justice system generally overlook the constitutional function of the audience, concentrating instead on the lost role of the jury as the representative of the public. (2) As a result, these scholars' suggestions for reform often focus either on creative ways to increase the role of juries in courtroom proceedings (3) or on building new community justice institutions outside of the courtroom that promote local participation in discretionary decisionmaking. (4)
This single-minded focus on the jury as a constitutional fix inside the courtroom is a mistake. For the criminal court audience is not just normatively important; it is constitutionally important. The criminal court audience is protected by both the defendant's right to a public trial under the Sixth Amendment (5) and the public's right to access criminal proceedings--the "freedom to listen"--under the First Amendment. (6) As a result, the audience can and should be a central constitutional mechanism for popular accountability in modern criminal justice. (7) This Article demonstrates that the Sixth and First Amendment rights together protect the ability of community members sitting in local courtrooms to promote fairness and accountability in the post-trial world.
This Article's doctrinal claim is that the protections of the Sixth and First Amendment rights to a public trial extend with full force into the nontrial criminal courtroom. The seed of this claim is the nascent expansion of the Sixth Amendment right, which has recently begun to follow a path that initially appeared in First Amendment jurisprudence, extending its reach in a small number of cases into courtrooms in which pleas and sentencings, rather than trials, are taking place. …