A recent decision by the court of appeals illustrates the procedural pitfalls of a common practice: closing the courtroom during the testimony of the victim of an alleged sex crime.
This practice is motivated by the best of intentions. The purpose is to spare the victim the embarrassment of discussing the intimate details of a sexual assault in front of a roomful of onlookers. There is also statutory support for the practice. G.S. 15-166 provides that: “In the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.”
The statute suggests that the judge has an absolute right to close the courtroom. However, the defendant has a Sixth Amendment right to a “public trial,” and the public may also have a First Amendment right of access to court proceedings. As a result, a judge may not rely solely on G.S. 15-166 to support an order closing the courtroom. Instead, the judge must consider four points identified in Waller v. Georgia, 467 U.S. 39 (1984) (holding that a trial judge improperly closed the courtroom during the entirety of a suppression hearing in a RICO case based on concerns about the publication of recordings that were played only during a small portion of the hearing). The four considerations are:
- Whether there is an “overriding interest” that would be harmed by allowing the courtroom to remain open
- That any closure “must be no broader than necessary” to protect the overriding interest
- That “the trial court must consider reasonable alternatives to closing the proceeding”
- In ordering a closure, the trial court “must make findings adequate to support” its ruling
In State v. Rollins, a case the court of appeals decided last week, the defendant was charged with breaking into his ex-girlfriend’s house and raping her. As she took the stand, the state asked that the courtroom be closed, citing G.S. 15-166. Over the defendant’s objection, the trial judge granted the request, stating “I don’t know that there is any case law” regarding the closure of the courtroom and describing the decision as “a discretionary call.”
After the defendant was convicted, he appealed, and the court of appeals found that the trial judge failed to make any findings in support of his decision, in violation of the fourth requirement of Waller. The court stated that making “detailed findings” is the “better course” but that at a minimum, a court must set forth its “basic rationale” for closing court. (The court discussed cases from other jurisdictions on this issue, some of which concluded that when the rationale is apparent, specific findings are superfluous.) The court determined “that the proper remedy is to remand this case for a hearing on the propriety of the closure.” Rollins is a helpful reminder and clarification regarding the necessary procedures associated with closing the courtroom.
Besides Rollins, the other significant cases in this area include State v. Jenkins, 115 N.C. App. 520 (1994) (holding that the trial court erred where it “made no findings of fact to support the closure during the [victim’s] testimony”), and Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (en banc) (applying AEPDA deference and concluding that a state MAR court’s rejection of the defendant’s claim that he received ineffective assistance of counsel when his appellate lawyer failed to appeal the trial court’s closure of the courtroom during the victim’s testimony; the Fourth Circuit ruled that the trial court’s “limited” findings were sufficient in the context of a child sexual abuse trial in which the justification for closing the courtroom was strong and apparent). For those interested in a broader background, my colleague Michael Crowell has a good paper on public access to court proceedings and records here.