U.S. Supreme Court Says Courtrooms Must Be Open To Public During Voir Dire

January 26, 2010

Last week, the United States Supreme Court held that trial judges should not exclude the public from courtrooms during jury selection.

Eric Presley’s uncle came to court to watch jury selection in his nephew’s trial. He was the only spectator in the courtroom. The judge said he had to leave. The judge told him he could not sit where potential jurors would be sitting, and instructed him to come back after voir dire. Eric’s lawyer objected, but the judge ruled he had discretion to limit access to the courtroom to prevent “intermingling” between family members and prospective jurors, for fear that the jurors might “overhear some inadvertent comment or conversation.”

Addressing the question, whether the Sixth Amendment right to a public trial applies to the voir dire of prospective jurors, the Supreme Court answered in the affirmative. Presley v. Georgia, 528 U.S. __ (2010). The Court held, “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.”  “The public has a right to be present whether or not any party has asserted the right.” The Court further explained that trial courts must consider alternatives to limiting pubic access, even when no alternatives are offered by the parties.  In the present case, for example, the Court suggested the lower court could have resolved the issue by reserving rows for the public, dividing the jury panel to reduce congestion, or instructing the prospective jurors not to engage or interact with audience members.  And while the Court recognized there may be cases where a threat of improper communications or safety concerns are significant enough to close voir dire, those threats must be clearly articulated.  “The generic risk of jurors overhearing prejudicial remarks, unsubstantiated by any specific threat or incident” is insufficient.

Justices Thomas and Scalia dissented stating that the Court had never before directly answered the question whether jury selection is part of the “trial” within the meaning of the Sixth Amendment. That question has now been answered.


Contact Robert W. Kelley, Esq.