When a person thinks of their constitutional rights, they often think of their right to free speech, or to bear arms, or the right to a jury trial.  The Washington Supreme Court dealt last week with a right that we do not always think of.  That is, the right to a “public” trial.   This was in the case of State v. Strode, a case originating out of Ferry County.  The right to a public trial is in the 6th Amendment to the U.S. Constitution, which reads:   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In the case of State v. Strode the Supreme Court had to decide whether it was appropriate for a judge to question potential jurors in chambers, as opposed to the open courtroom.   On certain cases, the parties obviously want to know whether a juror has been the victim of, or been charged with the crime in question.   The practice usually involves the judge inviting the juror back to chambers, along with the prosecutor, defense attorney, and defendant.   The State Supreme Court ruled that this may be acceptable in certain circumstances as long as a certain analysis is done on the record justifying the decision.

Although we learn about our constitutional rights in school, lay people I work with are often surprised at the way that the right to a public trial works.   It is often thought that it is acceptable to “close the courtroom” at certain times or even to allow a child witness, for example, to speak to the judge privately in chambers.   Such practices are prohibited by the U.S. Constitution for criminal trials.

This right to a “public” trial has come up several times in my practice as a criminal defense lawyer.  I once had a trial where an undercover cop was testifying about work he did on a case.  Although his identity was known to me and my client, the agent still had other cases that he was working elsewhere in the state.  The prosecutor moved to close the courtroom, but the judge had to deny the motion.

As we know courtrooms are often pretty empty during a trial.  Often times the defendant’s family will be present or a spouse of a juror will attend. However, it is any person’s right to just come in to a court and watch a trial or a docket.  When I travel to different places I often like to visit the local courthouse.  I once sat through a half-day trial in New York City, and when I was in law school, I often sat through jury trials in Spokane.  The right to a public trial belongs to a defendant, but also to the public.  Often times, it is the news media who raises this issue.

I once worked as a defense lawyer on a First Degree Murder case in Ferry County where the issue of a public trial arose.   The electronic locks on the courthouse doors lock automatically at 4:00 p.m.  The attorney general prosecuting the case stepped outside for a breath of fresh air during the recess and was locked out.  After a while, when court was set to resume we wondered where he went and found him outside.   Needless to say, the settings were changed on those locks.  Although it may seem a bit silly to some, locked doors at a courthouse would have required a new trial had it not been fixed.

Several years ago, I had a case in Okanogan County where a 6-year-old child was testifying during a non-jury trial.   The case dragged on through the morning, and people started to arrive for the afternoon traffic court docket.   The courtroom that had been previously empty started to fill up, and the pro tem judge directed the bailiff to post a sign on the door directing defendants to wait outside until their case was called.  I wondered if this was permissible, but the issue never got to the appeal level.

In the case of State v. Strode, the Supreme Court granted the request of the defense attorney for a new trial.