United States Constitution

In addition to the requirement that trials not be needlessly and prejudicially lengthy, the Constitution also requires that they be public. However, though the text of this provision may appear to be absolute, the Supreme Court has qualified this right in certain contexts. The question of media access to a courtroom, especially, has been the subject of much contention. The Constitution may endorse public trials – but a defendant also has the right to a fair trial. In Sheppard v. Maxwell (1965), the Supreme Court ruled that a defendant on trial for murder had not received a fair trial because of the incredibly hostile publicity toward him. So to in Estes v. Texas (1965). Thus, in later cases such as Waller v. Georgia (1983) and Press-Enterprise Co. v. Superior Court (1986), the Supreme Court explicitly qualified the right to a public trial by allowing the publicity of a trial to be limited in cases where such public access would unfairly prejudice the defendant.

However, despite this insistence on adherence to English precedent, this requirement has since been relaxed. In Williams v. Florida (1970), the Court ruled that Florida’s practice of using six-member jurors was constitutional (though in Ballew v. Georgia (1978), the Court also held that six was the constitutional minimum – a jury of five members was inadequate).

Also, in addition to the number of jurors being a constitutional requirement under the 6th Amendment, so is the makeup of the jury. Today, a jury must be comprised of a cross section of the community. When choosing a jury, the lawyers from either side may use what are known as peremptory challenges. This is when a lawyer rejects a juror without having to give any reason whatsoever. This authority gives broad leeway to each party to make decisions without having to reveal underlying rationales. But the Supreme Court has placed limits on these challenges. For example, in Batson v. Kentucky (1986), the Court held that a juror could not be stricken simply because he or she was African American. In Taylor v. Louisiana (1975) the Court held of a similar qualification for the exclusion of women as well. Finally, as a footnote, it is worth mentioning that such exclusions not only violate the 6th Amendment right to an impartial jury made up of a cross-section of the community – but they also violate the Equal Protection Clause of the 14th Amendment.

This right has been qualified in extraordinary circumstances, however. For example, in Maryland v. Craig (1990), the Court permitted the child victim of sex abuse to testify via one-way closed-circuit camera. In other words, at trial, while the jury could see the child, the child could not see the defendant or the proceedings. This was done to protect the already emotionally damaged victim from further trauma. Moreover, the defendant’s counsel did have an opportunity to cross-examine the witness. Therefore, the Court held this to be constitutional.

In recent years, the Confrontation Clause has been strengthened further still. For decades, one of the foundational principles of the Confrontation Clause was that, if an earlier piece of testimony could be shown to be reliable, then it could be admitted at trial regardless of the clause. This principle of reliability, asserted by the Court in Ohio v. Roberts (1980), was explicitly rejected in Crawford v. Washington (2004). In Crawford, the Court held that reliability was essentially irrelevant. Under the Confrontation Clause, a witness must be available for cross-examination.