The Right to a Public Trial in the Time of COVID-19

16 Pages Posted: 29 Apr 2020 Last revised: 19 Jun 2020

See all articles by Stephen Smith

Stephen Smith

Santa Clara University - School of Law

Date Written: April 27, 2020

Abstract

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis, and turns on a case’s specific circumstances. This essay proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.

Keywords: sixth amendment, right to a public trial, courtroom closure

Suggested Citation

Smith, Stephen, The Right to a Public Trial in the Time of COVID-19 (April 27, 2020). 77 Washington and Lee Law Review Online 1 (2020), Santa Clara Univ. Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3586727 or http://dx.doi.org/10.2139/ssrn.3586727

Stephen Smith (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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