The right to attend jury selection

The Supreme Court affirmed the presumption of access to voir dire in the 1984 case Press-Enterprise Co. v. Superior Court. Commonly referred to as “Press-Enterprise I,” the case 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 since prior to the United States’ independence from England. Explaining the benefit of such open proceedings, the Court said: “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 Court clearly identified a First Amendment right of access to the voir dire proceeding, the Court 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 must 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.