Covering courts: jury selection (voir dire)

The Supreme Court has recognized that the public has a qualified  right to attend and monitor the jury selection process (also known as "voir dire"), at least in criminal trials. Lower court decisions that recognize a presumptive First Amendment right of access to pretrial civil proceedings support public access to civil jury selection as well. 

The Supreme Court first recognized that the First Amendment creates a presumptive right for the public to attend the jury selection process more than a quarter century ago, in the case of Press-Enterprise Co. v. Superior Court.   "Press-Enterprise I," as the case is commonly known, involved a California court's decision to close all but three days of a six-week voir dire process in a high-profile murder prosecution. The judge also refused to release a transcript of the voir dire after the jury was selected. The defense and the government supported restricting access out of concern for juror privacy and the defendant’s Sixth Amendment right to a fair trial.

The U.S. Supreme Court ruled the closure unconstitutional, noting that voir dire has traditionally been an open and public process "throughout Anglo-American history."   Explaining the benefit of such open proceedings, the Court commented that the "The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed.” The Court added: “Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”

Although the Press-Enterprise I decision clearly identified a First Amendment right of access to the voir dire proceeding, the Court's opinion cautioned that the right is not absolute. Rather, it created a presumption of openness, which "may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” This interest must “be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Trial courts considering whether to close a proceeding must consider all alternatives prior to closure and to make a record of the proceeding for possible appellate review, the Court said. 

Anticipating concerns about juror privacy and embarrassment, the Press-Enterprise I Court also outlined steps for trial courts to reduce such concerns. The Court said a trial judge should notify prospective jurors that, if they feel public questioning is embarrassing, they can ask for an opportunity to discuss the problem outside of public view with the judge. Counsel and a court reporter must be present for these meetings.  Federal appellate courts have made clear that a generalized interest in juror privacy is insufficient to close voir dire.

The decision to close jury selection affects not only the public's First Amendment right of access, but also a criminal defendant's Sixth Amendment right to a public trial.  Shortly after the Court's decision in Press-Enterprise I, the Court ruled that a criminal defendant's Sixth Amendment's right to a public trial allows the defendant to demand public access to pretrial proceedings. That decision, Waller v. Georgia, relied heavily on the Press Enterprise I case.

Waller and Press-Enterprise I set the stage for the Court's 2010 ruling in Presley v. Georgia, in which the high court  reaffirmed the public's presumptive right to attend voir dire, this time relying on the defendant's Sixth Amendment rights.  In Presley, the Court found that a criminal defendant’s Sixth Amendment right to an open jury selection process must surely be as extensive as the public’s right under the First Amendment, noting that such logic was supported by Waller. The Court's opinion reiterated that trial courts must attempt to ensure public access to the criminal proceedings.  “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials” the Court stated.