The Sixth Amendment to the United States Constitution guarantees the accused in a criminal case the right to a public trial. A violation of this right is considered “structural error,” the occurrence of which mandates reversal of a defendant’s conviction regardless of whether prejudice resulted from the error. People v. Thompson, 238 Ill. 2d 598, 609, 939 N.E.2d 403, 411 (2010). This article examines the delicate—and often blurry—line between a judge’s permissible exclusion of persons from the courtroom and the unconstitutional denial of the defendant’s right to a public trial. Although existing jurisprudence does not provide a one-size-fits-all approach, judges should, at a minimum, conduct a thorough analysis of the applicable law on the record prior to ordering anyone out of the courtroom. As recent case law demonstrates, failure to do so can fatally compromise an otherwise valid conviction.

The United States Supreme Court has held that, prior to ordering closure of a criminal proceeding, “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216, (1984).

A judge may decide to exclude members of the public from a courtroom for a variety of reasons, such as to avoid the risk of jury contamination, to make a witness more comfortable while delivering sensitive testimony, or to simply open up space for others to sit when space is limited. In Illinois, however, the only statutorily recognized valid basis for closing the courtroom in a criminal trial is to allow the testimony of a minor victim in certain abuse cases. 725 ILCS 5/115-11. In all other instances, a case-specific inquiry is necessary to determine whether an interest is “overriding.”

The Supreme Court in Waller was careful to specify that the interest advanced in support of closure must be not only overriding, but also likely to be prejudiced if no action is taken. Judges all too often order full or partial closure of a courtroom based upon theoretical problems that could arise, regardless of whether any unique circumstances exist to suggest that such problems will arise. For instance, in the recent case of People v. Evans, 2016 IL App (1st) 142190, the trial court excluded the defendant’s step-grandmother from the gallery of the courtroom during voir dire based upon a desire to avoid juror contamination. The defendant was subsequently convicted of murder and sentenced to 100 years in prison.

In reversing the defendant’s conviction in Evans, the First District Appellate Court concluded that although avoiding juror contamination was an overriding interest, that interest was not likely to be prejudiced where no evidence suggested that the defendant’s step-grandmother had attempted to communicate with or intimidate any potential jurors. In so concluding, the Evans court cited several precedential cases in which courts of review have rejected trial courts’ unsubstantiated fears that jurors would be contaminated simply because the jurors were in close proximity to the defendant’s family members. Evans and the cited cases stand for the proposition that the mere opportunity for the public to cause problems in the courtroom is insufficient to support closure. Instead, the “findings adequate to support the closure” (Waller, 467 U.S. 48, 104 S. Ct. 2216) must consist of actual, articulable reasons to believe that these members of the public in this courtroom for this trial will cause problems. In other words, the constitution requires a case-by-case analysis coupled with a case-specific exclusion order.

(It should also be noted that the trial court in Evans cited the limited seating capacity of the courtroom as an additional reason for excluding the defendant’s step-grandmother. The Evans court rejected that rationale as well, holding that “[t]he size of a courtroom, or the number of potential jurors who are summoned to a courtroom, do not constitute an ‘overriding interest.’” Evans, 2016 IL App (1st) 142190).

Evans, which is one of dozens of Illinois cases in which the Appellate Court has reversed a criminal conviction based a denial of the right to a public trial, may be part of a broader failing of many Illinois trial courts to conduct the full Waller analysis before limiting the public’s access to the courtroom. In Champaign County, for instance, some courtrooms have signs posted on the doors prohibiting members of the public from entering the courtroom during trial unless during a break in the proceedings. These rules are purportedly intended to prevent jurors or witnesses from becoming distracted by people entering the courtroom during testimony or argument. However, in the absence of any case-by-case tailoring and analysis on the record, these types of seemingly minor restrictions on public access to courtrooms during trials may overstep the permissible constitutional bounds of ‘courtroom management.’

Judges should recognize that a defendant’s right to a public trial will often trump other logistical concerns in the courtroom. For that reason, full or partial exclusion of the public should be ordered only as a last resort. When such a drastic step is necessary, it is important for judges to (1) make a clear record of their reasons for exclusion, (2) list the possible alternatives that have been deemed unworkable, and (3) articulate the specific parameters of the exclusion order itself. All parties, especially prosecutors, should be familiar with the Waller analysis because failure to perform that analysis on the record can doom a conviction on appeal. Accordingly, attorneys should not hesitate to carefully remind judges of the applicable rules whenever closure or exclusion is contemplated. 