The Sixth Amendment provides that a person accused of a crime “shall enjoy a public trial.” This right is grounded in the belief that judges and prosecutors will carry out their duties more responsibly in open court than they might in secret proceedings as well as the notion that a public trial encourages witnesses to come forward and discourages perjury. See Waller v. Georgia, 467 U.S. 39, 46 (1984).
The right to open trial proceedings is not absolute; it operates as a strong presumption rather than a guarantee. The presumption may be overcome in rare cases by other compelling rights and interests, such as the defendant’s right to a fair trial, the government’s interest in limiting the disclosure of sensitive information, and the need to protect the personal dignity of a testifying and vulnerable witness. See id. at 45; Bell v. Jarvis, 236 F.3d 149, 167-68 (4th Cir. 2000) (en banc).
Before a judge may close criminal trial proceedings to the public, (1) the party seeking to close the courtroom must advance an overriding interest that is likely to be prejudiced by open proceedings; (2) the trial court must consider reasonable alternatives to closing the proceeding; and (3) the trial court must make findings that are adequate to support the closure. Waller, 467 U.S. at 48. Finally, even if justified, (4) the closure must be no broader than necessary to protect the identified interest. Id. This four-part inquiry is referred to as the Waller test.
The North Carolina Court of Appeals in the recent case of State v. Miller, COA22-561 ___ N.C. App. ___ (Feb. 21, 2023) considered whether a trial court’s order closing the courtroom satisfied the Waller test and thus the Sixth Amendment.
Facts. Derek Jvon Miller was charged with attempted first degree murder and other crimes for leaning out of a car window and shooting Neqayvius McLendon as McLendon, McLendon’s brother, Nyhiem Kendall, and a friend were walking to a neighborhood basketball court.
The State moved pre-trial to close the courtroom during McLendon’s and Kendall’s testimony for the purpose of keeping the two “safe outside of the courtroom” and for eliminating the possibility that they might be intimidated on the stand. Miller objected.
The trial court held the ruling open so that it could review exhibits from a prior hearing to increase the defendant’s bond for potential witness intimidation. At the end of the day, the trial judge stated that he was “concerned because of the documents I’ve reviewed with there being some social media posts and things like that.” (Slip op. at 6.) The trial court then ruled that only “direct relatives” of Miller and the State’s lead investigator could remain in the courtroom during the witnesses’ testimony and that no mobile phones were to be used during the testimony. (Slip op. at 5). The court subsequently entered a written order granting the State’s motion, permitting relatives of Miller and the investigator to remain in the courtroom, and providing that only court personnel could retain possession of their mobile phones during the testimony.
The trial court did not enter written findings about why closure was necessary or make any additional factual findings on the record.
Analysis. The Court of Appeals concluded that the trial court failed to apply the Waller test to determine whether closure was appropriate and failed to make findings sufficient for the appellate court to review its decision. Moreover, the Court determined that the trial court’s sole oral finding of fact was inadequate to support closure.
The Court of Appeals remanded the case for a hearing on the propriety of the closure, instructing the trial court to engage in the Waller analysis and to make the appropriate findings of fact regarding the necessity of the closure. The Court instructed that if the trial court determines that closure was not justified, Miller is entitled to a new trial. If the trial court determines that closure was justified, Miller may appeal from the judgment entered on remand. (The Court of Appeals vacated Miller’s conviction for an ordinance violation on other grounds and ordered that he be resentenced on remand.)
Earlier cases. Miller is not the first Court of Appeals opinion to find error based on a trial court ordering courtroom closure without making adequate findings of fact. In State v. Rollins, 221 N.C. App. 572 (2012), the Court of Appeals held that the trial court erred by closing the courtroom during a rape victim’s testimony without entering Waller findings. Even though G.S. 15-166 authorizes a trial judge to exclude bystanders from the courtroom during testimony by a victim in a rape or sex offense trial, Rollins held that the trial court still must apply the Waller test before ordering courtroom closure in such a case. Rollins, 221 N.C. App. at 78-79.
Rollins noted that there must be adequate findings, coupled with the record evidence, to enable the appellate courts to examine the trial court’s ruling. Id. at 78. Rollins further advised that even though in some cases a basic rationale combined with the record evidence will be sufficient, the better practice is for the trial court to make detailed findings. Id; see also State v. Jenkins, 115 N.C. App. 520 (1994) (finding that trial court erred in rape trial by closing the courtroom during testimony by the alleged victim without applying Waller test).
State v. Comeaux, 224 N.C. App. 595 (2012), recites factual findings by the trial court (entered on remand) that the Court of Appeals deemed sufficient to satisfy Waller and to support the closure of the courtroom during the victim’s testimony in an indecent liberties trial. Those findings included the victim’s young age, the fact that the abuse began when the victim was 10 years old, the graphic, sexual nature of the testimony, and the parental role in the victim’s life of the defendant and the defendant’s wife, who was among the spectators excluded from the courtroom. Other findings related to behavior engaged in by the defendant’s wife to intimidate the victim. The trial court also found that the courtroom was closed for only a limited time and that there were no reasonable alternatives to closing the courtroom during the victim’s testimony.
Takeaways. Waller emphasized that a defendant’s right to public trial proceedings (which Waller held encompassed a suppression hearing) may be abridged to account for other overriding rights or interests. Though Waller characterized the circumstances justifying closure as being “rare,” courts have recognized safeguarding the psychological well-being of a minor victim of a sex crime, including protecting them from further trauma and embarrassment, as the type of interest that can overcome the presumption in favor of an open trial. See, e.g., Bell, 236 F.3d at 167-68 (noting that closing the courtroom for testimony from a child victim that she was repeatedly raped and molested by her step grandfather “is indisputably appropriate under Supreme Court jurisprudence, provided the trial judge determines on a case-by-case basis that the State’s legitimate concern for the well-being of the minor victim necessitates closure.” (internal quotations omitted)).
Any time a court is considering closure, it must engage in the Waller analysis – even when closure is expressly authorized by statute. See Rollins, 221 N.C. App. at 575 (holding that the trial court erred by closing the courtroom during a rape victim’s testimony without entering Waller findings even though closure was authorized by statute).
Finally, the trial court should make adequate findings to support the closure, which must be narrowly tailored to protect the identified interest.
Beyond the Sixth Amendment. The public trial right is not limited to the Sixth Amendment or the interests of the defendant. The Supreme Court has recognized that the public and the press have a qualified right under the First Amendment to attend a criminal trial and that the circumstances in which they may be barred are limited. See Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596, 603 (1982). The justification for denying access must be compelling and the denial must be narrowly tailored to serve that interest. Id.; see also Press-Enter. Co. v. Superior Ct. of California, Riverside Cnty., 464 U.S. 501, 510 (1984) (“The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”) Thus, a trial court seeking to close the courtroom even at the request of the defendant must consider whether the interest is compelling and must narrowly tailor any ensuing closure. And, as with closures that implicate Sixth Amendment rights, the trial court must make findings adequate to permit appellate review.
Want more background? Check out this comprehensive paper from my (now retired) colleague Michael Crowell.