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Right to a Public Trial

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.

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Is Necessity a Defense to DWI?

After a bad break-up, Dan drives to a local bar, where he begins drinking. He hasn’t planned in advance how he is going to get home. If he drinks too much to drive, he thinks, he will summon a ride on his smart phone. Dan is on his seventh drink in two hours when a man storms through the front door of the bar, waving an assault rifle and threatening to shoot up the place. Dan bolts for the nearest exit, jumps in his car, and drives away. Less than a half-mile away from the bar, Dan runs through a red light and is stopped by a law enforcement officer. Dan is subsequently charged with driving while impaired. At trial, he asks the judge to instruct the jury on the defense of necessity. Is Dan entitled to that instruction?

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Summer Confrontation Clause Cases

This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them.

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When is Ignorance of the Law an Excuse?

An ancient maxim of the law is ignorantia juris non excusat, or ignorance of the law does not excuse. Put another way, it is presumed that the public knows the laws, and a defense of ignorance is typically not allowed. This principle is at the heart of the recent decision by the state supreme court in State v. Miller, ___ N.C. ___, (June 9, 2017).

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State v. Miller Confirms that the DWI Motions Statutes are a Hot Mess

No, Justice Ervin didn’t use the words hot mess. But anyone who slogs their way through the tortured procedural swamp that led to State v. Miller, __ N.C. __ (March 18, 2016), is bound to agree that the procedures adopted in 2006 for appeals in DWI cases have created a nearly impenetrable bog for the parties involved. I’m going to do my best here to succinctly explain what happened in Miller. Then I’ll share an idea for freeing litigants and judges from the procedural muck in which they are currently mired. 

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