Public Trial Clause and "Hushers" During Voir Dire

An interesting petition pending before the U.S. Supreme Court.

|The Volokh Conspiracy |

I'd been meaning to blog about Blades v. U.S., and an amicus brief in the case that my First Amendment Clinic Alyssa Morones, Avi Oved, and Brenna Scully and I filed on behalf of Profs. Professors Susan Herman, Raleigh Hannah Levine, Justin Murray, and Jocelyn Simonson; but I was waiting until all the briefs were filed and I could pass them along together with our brief. That has now happened, so I link to them below, together with an excerpt from our brief:

Summary of Argument

"If a public trial doesn't make a sound, is it still a public trial?" State ex rel. Law Office of Montgomery Cty. Pub. Def. v. Rosencrans, 856 N.E.2d 250, 256 (Ohio 2006) (Pfeifer, J., dissenting). It is not. The Public Trial Clause protects the public's right to participate in the justice system by perceiving how the law is being applied, as it is being applied. This participation in turn helps the public ensure judicial proceedings are fair and promotes public confidence in those proceedings.

But using a husher [a kind of white noise machine-EV]—a "trial by mime," id. at 257—while prospective jurors answer voir dire questions denies the public its right to hear those responses. Just as locking the public outside glass courtroom doors would constitute a closure because the public could see but not hear the proceedings, so too does a husher.

That closure is not rendered constitutional merely because the proceeding's transcript is available for purchase—reading words­, many days after watching the corresponding silent physical acts, is not contemporaneous observation. And a general interest in juror candor and privacy cannot justify abrogating the public trial right; rather, a closure can be justified only if it satisfies the Waller test, a test that was not used by the lower court to support the closure in this case. See Waller v. Georgia, 467 U.S. 39, 48 (1984); see also Presley v. Georgia, 558 U.S. 209, 214-15 (2010).

Argument

[I.] The public trial right necessarily protects the right to both see and hear the proceeding.

A public trial right guarantees the public's right to "sit, look, … listen," and "react to what they see and hear." Citizens serve as "auditors" who "form independent judgments about the quality of government actions."

But this citizen monitoring works only "when there is something substantive to observe," and "observe" here must mean hearing as well as seeing; watching "facial expressions and body language of … the participants at the bench," Pet. 19a, is an inadequate substitute for the combination of watching body language and hearing real language. When the audience cannot hear what is said, criminal proceedings may be "technically open to public view [yet be] in practice obscure," and that is so for voir dire as much as for other phases of the criminal justice process.

[A.] Hearing juror responses to voir dire questions is necessary to promote a fair proceeding.

A public audience during voir dire reminds the judge, lawyers, and prospective jurors that they are being monitored. The public "serves as a check on governmental and judicial abuse and mistake, guarding against the participants' corruption, overzealousness, compliancy, or bias." Trial participants "will perform their respective functions more responsibly in an open court than in secret proceedings." Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concurring) . And prospective jurors may be "encourag[ed] … to answer questions truthfully" when their responses are heard by the public.

That is because "[t]here is power in the act of observation: audiences affect the behavior of government actors inside the courtroom, helping to define the proceedings through their presence." And the public trial right plays an especially vital role during stages of the adjudication process that lack a jury, like voir dire, because listening to the process is the only role that ordinary citizens can play at that stage. Listening to voir dire is how the public monitors who is chosen to serve on the jury, a choice that implicates the public's interest in equality, representation, fairness to the defendants, and fairness to the public.

An inaudible voir dire forecloses the audience from serving as that check. The criminal justice system presumes that lies and prejudice, for example, often cannot be detected by watching silent physical acts. Hints of those dangers may be conveyed in words, tones, and pauses. So long as the actors pantomime justice, no audience member will be the wiser.

Rather, to monitor the voir dire participants, the audience must be able to hear the answers as they are given. Id. at 2182, 2228. Prospective jurors' responses to voir dire questions may alert the public to potential prejudices, just as a prosecutor's questions and statements during voir dire "may support or refute an inference of discriminatory purpose" in the use of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 97 (1986). Indeed, the public interest in observing voir dire is especially important given the importance of the jury selection process as a safeguard for both equal protection and due process, as illustrated in this Court's post-Batson holdings:

"[T]he importance of the selection of the jury in open court is further highlighted by Batson and its progeny …. Such prohibition [on biased peremptory challenges] has been held not only to 'safeguard[] a person accused of crime against the arbitrary exercise of power by prosecutor[s] or judge[s,]' but to advance 'public con­fidence in the integrity of the criminal justice system.' It is because '[t]he petit jury has occupied a central position in our system of justice' that the above safeguards are in place, and the public, including members of an accused family, ensure the preservation of these safeguards through the ability to openly observe court proceedings."

Campbell v. State, 205 A.3d 76, 92 (Md. Ct. Spec. App. 2019) (citing Batsonand later cases, as well In re Oliver, supra, a Public Trial Clause case) .

[B.] Hearing juror responses to voir dire questions is necessary to ensure public confidence in the justice system.

Public trials also "heighten[] public respect for the judicial process" because even citizens who do not attend the trial know that it is open to the public and that other citizens may attend and hold actors accountable. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982). Because others are present, the public can better trust that "standards of fairness are … observed," Press-Enter. Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 508 (1984), and that the "truth … prevail[s]," Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 112-14 (1998).

But with inaudible voir dire, the non-attending citizen cannot presume that the audience has performed its auditor function or that the jury has been fairly selected. "The jury trial cannot truly serve the function of legitimating the verdict and the proceedings if the public does not know what has happened or believes that important events have occurred behind the scenes."

In this role, public trials serve a "'community therapeutic value'" by "vindicat[ing] the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected." Press-Enter. Co., 464 U.S. at 508, 509 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570 (1980) (plurality opinion)). But when proceedings are held in secret, "an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted," decreasing public confidence in the justice system. Richmond Newspapers, 448 U.S. at 571 (plurality opinion). For example, if a jury empaneled by inaudible voir dire acquits when the public expects a conviction—or vice versa—the public's inability to hear the voir dire responses may engender suspicions of jury bias or corruption.

A partially inaudible criminal justice process cannot "satisfy the public desire for justice" or serve as a "cathartic outlet for community outrage and concern." Because "experiences with … procedural fairness and trustworthy motives spill over into broader attitudes about the criminal justice system's legitimacy," inaudible voir dire may lead the public to suspect that the jurors' unheard responses were significant and resulted in injustice.

And the jury and public audience serve as complementary representations of the community—including people with different backgrounds, experiences, and interests. Attendees may be members of groups otherwise excluded from juries, such as people who are friends and relatives of the accused and victims; noncitizens; and, in federal courts and more than half of states, people with felony convictions, a group that is skewed along other demographic dimensions as well.

[II.] Delayed access to a transcript is not a substitute for contemporaneously watching and hearing voir dire.

[III.] A general interest in juror candor and juror privacy cannot justify a violation of the public trial right to hear voir dire.

Conclusion

Inaudible voir dire prevents the public from participating in the justice system—thus sapping public trust and depriving the system of the other benefits of public supervision. And a delayed and costly transcript cannot substitute for listening to voir dire as it happens. Routine use of hushers should therefore be recognized as violating the right to a truly public trial.

And here are all the briefs:

 

NEXT: Today in Supreme Court History: June 21, 1989

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Speaking as a defense attorney, the point of the white mouse machine isn’t to prevent the public from hearing the responses. It’s to prevent the rest of the jury panel from hearing responses. Get rid of white noise machines and in camera boot fire and you’ll have a lot more mistrials during jury selection.

    You’ll also have a lot more jurors withholding information because they don’t want to speak publicly about how they were raped as a child and therefore can’t judge the case fairly. I am of course in favor of public access to trials generally, but you have to weigh that against the individual trial rights of the defendant.

    1. “boot fire” is “voir dire”? Took me a few seconds to even make that guess!

    2. In this case, however, the defense attorney expressly objected to using the “husher”.

      (As best I can tell, the argument isn’t that there can’t be any private questioning during void dire, but rather that the whole individual questioning can’t be done in private.)

    3. How about the rights of the jurors? The accused has a right to remain silent, but totally innocent jurors must divulge their secrets, even their own inner minds, on the whims of the attorneys.

      Mandatory jury duty is a violation of the 13th amendment. To the extent voter rolls are used, it’s also a violation of the 24th amendment. And, really, the 5th as well; it’s a taking without due process or just compensation.

        1. +1 for that link.

          Although, to be fair, given what some of the Conspirators write here about the takings clause, I can see how Davy might get that impression…

      1. You ruin what is actually a reasonable point by talking about the Constitution. No, mandatory jury service doesn’t violate the Constitution, and yes, that means that jurors must generally answer truthfully in voir dire (although as always, they can take the Fifth Amendment with respect to past criminal conduct).

        But that doesn’t mean you aren’t wrong that juror privacy is a legitimate issue. Honestly, I am not a big fan of a lot of voir dire- I like the systems where the judge controls it and there’s very little of it. But given we live in an age of jury consultants and 80 page juror questionnaires in big cases, there is a privacy issue here.

      2. @ Davy C: It’s rare for a commenter to display, in three consecutive sentences, how little he understands about three constitutional amendments. Congratulations!

    4. I don’t know if that’s really true. In voir dire I once had a guy volunteer that he had a child abuse conviction, and wondered if anyone cared. He stayed.

  2. So the rights of the defendant (see above) and of the jurors (who get dragged into the whole proceeding against their will) don’t count?

    1. The jurors are indeed being conscripted, and losing all kinds of rights, as conscripts generally do.

      I think, though, that the right of public trials also benefits the rights of defendants generally. If I am accused of a crime, I want the government to have to prove its case right out in front of everyone. Getting sent to the big house by some murky process where the government can cut corners without public scrutiny doesn’t impress me as generally serving the interests of defendants.

      1. That’s fine as far as a general principle goes, but how does that apply to a rule that gets you a less candid voir dire process?

        More generally, shouldn’t defendants be able to waive their right to having voir dire public (or to have jury altogether), if they are the ones for whose benefit the right in question allegedly exists? IIRC, many states require the consent of the prosecutor before the defendant can opt for a bench trial, which seems particularly odd.

        1. As indicated in the quoted excerpts, the right to a public is not one personally held be the defendant. Moreover, this defendant didn’t waive it, even by implication: he asked the judge not to use the husher.

          1. I raised that question not in respect of this specific case, but generally.

            And I thought collective rights weren’t a thing???

  3. This reminds me of the trial of a Black UMass student accused of slicing & dicing two White nonstudents — the whole thing was a charade with a guilty man* going free only because he was Black.

    But the Judge only let supporters of the defendant into the courtroom — everyone else was excluded, including newspaper reporters, which I was at the time.

    *The whole thing was on video, from two different angles. There was no question as to his guilt.

    1. Yes. Black people accused of crimes with white victims have it notoriously easy in the United States.

      1. They do when Black Professors credibly threaten race riots with impunity, they do when mandatory student fee money is (illegally) given to the defendant, they do when the judge is a member of a university faculty who declared that the defendant must not be prosecuted, they do when mobs freely surround the courthouse threatening violence, etc.

        However, that wasn’t my point. My point was the judge excluding everyone but supporters of the defendant from the courtroom during motion hearings, hence preventing any version of the facts other than theirs being known to the public.

        Defense attorneys: How many times have *you* been able to use a courtroom for press conferences?

    2. What is wrong with you?

    3. This reminds me of

      something else Ed made up.

    4. You’re making some very serious accusations here. What evidence do you have for this? What case number was this? What court? What judge? What defendant? Dates? Was there a transcript of the precedings?

      1. Defendant: Jason Vassel — who was expelled by a Black Dean of Students, with the decision supported by a Black Vice Chancellor and a Black Chancellor.

        Court: Hampshire County Superior Court in Northampton.
        I don’t know the case number but have personally held the file in my hands.

        No, there is no transcript of the proceedings — that is part of the issue. I have personally seen still shots from the surveillance cameras. Vassel was having a party in his room — there was a lockable door to his room, an always-locking door to the lobby, and another to the exterior (both openable from the inside).

        The plate glass window to Vassel’s window is broken. It’s not clear if it was from the outside or inside, and my view of the glass debris was that it was inside/out. There is no documentation of when.

        There are timestamped photos of Vassel coming out into the lobby wearing a ski mask and carrying a clothes iron. He opens the door to let a friend into the building, and the two white males accompany him. There is some sort of altercation.

        Vassel then returns to his room and gets a knife. He returns, crosses the entire lobby in less than 3 seconds and repeatedly stabs the two white men on the far side.

        https://www.aclu.org/press-releases/vassell-wins-hampshire-superior-court

        Oh, and the cop who said it “looks like a drug deal” — is Black.
        Is actually a UMass graduate who majored in Afro-Am Theater.

        1. Incident date: February 3, 2008.

          All three men were quite drunk — memory is that Vassell’s BAC was 1.6 — and there were vague references to something else, which I strongly suspect (repeat, suspect) was Adderall.

  4. The bench judge at trial notes in their experience that perspective jurors will not be as forthcoming with their answers if they don’t have some privacy. That seems key to me.

    The lawyers all get to hear.
    The defendants all get to hear.
    The judge gets to hear.
    The public (and press) can all read the answers a few days later for a fee.

    That doesn’t seem like a gross constitutional violation When weighed against the judge’s real world experience with how trials and voir dire really work.

    1. What “privacy”, exactly, is gained? As you said:

      The lawyers all get to hear.
      The defendants all get to hear.
      The judge gets to hear.
      The court staff get to hear.
      The public (and press) can all read the answers a few days later for a fee.

      So why does letting a very small subset of the public hear a few days earlier somehow change everything?

  5. “[II.] Delayed access to a transcript is not a substitute for contemporaneously watching and hearing voir dire”

    A point: The only reason to believe the transcript is accurate is that the public heard what was said, and might notice a discrepancy. In general, the moment a government makes an effort to hide something, their account of what was hidden should be distrusted.

    1. The only reason to believe the transcript is accurate is that the public heard what was said

      Well, that and because the judge heard what was said, and the prosecutor heard what was said, and the defendant heard what was said, and the defense attorney heard what was said, and the bailiff heard what was said, etc.

    2. Delayed access to a transcript is not a substitute for contemporaneously watching and hearing voir dire

      This argument proves too much. There are already lots of proceedings where all the media (and by the way, can we be accurate about this? It’s not about the public, it’s about the media. The public isn’t clamoring for tickets to watch voir dires) gets is a transcript, e.g., basically everything that happens in chambers or at sidebar in a criminal trial. And yet, it’s not considered a First Amendment violation that a court holds sidebars. It’s necessary to protect the rights of both the defense and the prosecution to not air stuff the jury isn’t supposed to hear, in front of the jury.

      The husher may or may not be constitutional. But the media is getting more information from this than they get with the sidebar, because they can watch the jurors answer the questions and then put it together with the transcript to judge things like demeanor, which they can’t do when everyone has their back to the gallery in a sidebar.

  6. “A public audience during voir dire reminds the judge, lawyers, and prospective jurors that they are being monitored. ”

    Yes. But jurors are compelled to be present whereas the judges and lawyers are present by choice. Are prospective jurors compelled to speak? I’m sure it varies from jurisdiction to jurisdiction, but is answering questions compulsory during voir dire?

    I was considering this question myself recently when I was summoned for jury service for a state-level superior court. In my jurisdiction, the entire jury pool for that day is placed in the gallery. Prospective jurors are then selected by lot and summoned to the bench where the discussion is covered by the white-noise machine but recorded by the stenographer. At this stage, the prospective juror can give reasons why they think they shouldn’t or can’t serve. If they are not immediately released after this discussion, they are placed in the juror’s box where voir dire is then conducted in front of the entire courtroom audience.

    As I sat in the gallery (because my lot had not been selected), I heard the prosecuting attorney ask questions like, “Juror number 4, do you own firearms? What kind? Where do you store them?” I became worried, because my answer to such questions would be “None of your business.” Had the questions been asked privately and off the record, I would probably have answered.

  7. It may well be that public trials offer some trade-offs as opposed to private or semiprivate trials. But the 6A says public, so that settles the matter. Sometimes I think judges like to make judging harder than it is.

    1. The 6th amendment only settles the matter if you think jury selection/voir dire is part of the trial.

      1. Sure. If you’re wrong about that, you’d be wrong about the question of hushers, too.

      2. Martinned: I appreciate your argument as a matter of interpretive first principles; but even the opinion below recognized that Supreme Court precedent does treat voir dire as covered by the Public Trial Clause:

        The Supreme Court has recognized that the guarantee of a public trial extends to the voir dire examination of potential jurors. Press-Enterprise Co. v. Superior Court (1984) (considering the issue under the First Amendment); Presley v. Georgia (2010) (“[T]here is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has [under the Sixth Amendment].”).

        1. In that case I would have to agree with TwelveInchPianist: How is this a difficult question? (From a legal point of view.)

          1. Because some people don’t like the right answer.

          2. There’s no doubt that voir dire is part of the trial. Again, though, so are sidebars. There’s still a balancing to be done with respect to these ancillary proceedings.

      3. I certainly hope that jury selection is part of the trial for Sixth A. purposes. Isn’t that the hook for Batson? I would guess you support Batson.

        And looking at the issue from first principles, what do you exclude from public scrutiny? All the pre-trial evidentiary decisions? Sentencing? Having a pubic trial that is a foregone conclusion because the important stuff happened off stage is negating the right.

        1. I thought Batson was a matter of equal protection.

          And yes, what I meant is that it is at least arguable that pre-trial proceedings are, well, pre-… trial. And jury selection has no bearing on the guilt or innocence of the defendant, so as a matter of principle you could consider it as separate from the trial.

          (The defendant would still have a general due process right for voir dire to be done fairly, and consistent with equal protection principles, but it wouldn’t be subject to the specific requirements of the 6th amendment.)

          1. “I thought Batson was a matter of equal protection.”

            On rereading it, I think you are right. There was a lot of discussion about the Sixth – at the state supreme court, for example, Mr. Batson apparently disclaimed any Fourteenth basis, and White’s concurrence seems to refer to the Sixth, etc, but you are correct that the holding is based on the Fourteenth – my bad!

  8. “And prospective jurors may be “encourag[ed] … to answer questions truthfully” when their responses are heard by the public.”
    Or not. Suppose I’m asked a question that requires me to ‘fess up to a criminal conviction, long ago and in a distant city, so unknown to my current fellow citizens, that would greatly harm my reputation if known locally. Do I have to option of declining to answer, or must I choose between perjury and losing my good name?

  9. And prospective jurors may be “encourag[ed] … to answer questions truthfully” when their responses are heard by the public.

    Actually, if anything, I expect the opposite may be true. There are things people may not want to say in front of random strangers who have no reason to be there other than a desire to watch “public trials”, but they may be willing to say to the parties who have a more direct interest in it.

  10. In civil cases at least there are no public trials in New York State courts. Most judges will exclude everyone from the courtroom except the jury, the lawyers, the parties, and whoever’s on the stand. There are certainly no public voir dires.

    1. captcrisis: I can’t speak to practice, especially in particular kinds of court, but the law in New York is that there’s a First Amendment right of access to court recods, see Danco Labs. v. Chemical Works (N.Y. App. Div. 2000):

      The issue often arises in the context of criminal proceedings, but both the First Amendment and common law principles apply equally to civil proceedings . As the United States Supreme Court has noted, “[w]hile the operation of the judicial process in civil cases is often of interest only to the parties in the litigation, this is not always the case. * * * Thus, in some civil cases the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases.” Among the values of access in civil cases is that “the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.” Publicity about trials “tend[s] to insure that the truth will be told and the secrecy of inquisition-like proceedings will not occur.” The public interest in openness is particularly important on matters of public concern, even if the issues arise in the context of a private dispute, about which secrecy, then, may well prove the greater detriment to the public.

  11. Voir dire is latin for jury tampering.

    1. Pretty much.

  12. Hear, hear!

    The transcript alone does not convey all the meaning. Consider this sentence, which can mean seven different things just by emphasizing a different word: “I never said she stole my money.”

  13. At pretty much every jury selection I’ve been to, either the judge or one of the parties tells the jurors that if there’s something they want to let the parties know about without discussing it in front of the entire panel, they can let the bailiff know and they get brought in individually after the main panel has been questioned. That’s when you get the admission that someone’s been sexually assaulted, has an embarrassing prior conviction, etc. If that was done and the husher used only for that part, do you think it would pass scrutiny? It seems like a good balance of the public right to know and the jurors’ privacy to me.

Please to post comments