Public Trial Clause and "Hushers" During Voir Dire

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

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:

• The petition for certiorari.
• The government's brief in opposition.
• The reply brief.
• The Cato Institute amicus brief.
• The Reporters Committee for Freedom of the Press amicus brief.
• Our full amicus brief.