Criminal Defendants Entitled to Open Voir Dire

OPEN COURTS -- Adam Liptak, writing in the New York Times, reports that the U.S. Supreme Court decided today in a case from Georgia that a criminal defendant's presumed fair trial rights under the Sixth Amendment—separate and apart from the rights of the press and public under the First Amendment—include a courtroom open to the public during jury selection.

In one of the Georgia cases, Presley v. Georgia, No. 09-5270, the Supreme Court decided two open issues concerning closed courtrooms. The trial judge had ejected an uncle of the defendant during jury selection, saying her courtroom was too small to accommodate both potential jurors and the public.

The defendant, Eric Presley, was convicted of trafficking in cocaine. He appealed, saying his Sixth Amendment right to a public trial had been violated. In 1984, the Supreme Court ruled that the press and the public have a First Amendment right of access to jury selection; in Mr. Presley’s case, the court Tuesday extended that right to criminal defendants under the Sixth Amendment.

“There is no legitimate reason, at least in the context of jury selection proceedings to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has,” the opinion said.

The court also resolved whether a defendant seeking to open a courtroom must present alternatives to the trial judge. The Supreme Court said no. Whether trial judges are given a menu of options or not, the majority opinion said, they “are obligated to take every reasonable measure to accommodate public attendance at criminal trials.”

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, saying the majority should not have decided the two questions in summary fashion without full briefing and argument.