Houston Criminal Attorney: The Right to a Public Trial

The right to a public trial has recently become a rather hot topic in Texas trial and appellate courts. New courtroom configurations, larger venire panels, and the regular voir dire practice of many trial court judges and their staff have come under much closer scrutiny of late. This has forced Texas appellate courts to re-examine exactly what the right to a public trial actually means and more specifically what are its limitations.

The Sixth Amendment to the United States Constitution grants criminal defendants the right to a public trial. The right to a public trial is also an element of due process under the Fourteenth Amendment. This right is additionally guaranteed by both the Texas Constitution [Tex. Const. Art. 1 § 10] and the Code of Criminal Procedure [C.C.P. Arts. 1.05, 1.24]. At its heart, the right of public trial is a reflection of the constitutional framers’ insistence on transparent government. The U.S. Supreme Court has observed that one of the primary purposes served by conducting trials in public is the prevention of the abuses inherent in secret proceedings that cause courts to become instruments of oppression against the accused.

The right to a public trial, however, is not absolute and must be balanced against circumstances that justify the exclusion of members of the public. For example, it may be appropriate to limit access to the courtroom when the conduct of bystanders creates a reasonable probability that the jury's verdict would be affected in some manner. The decision to limit access to the courtroom is within the court's discretion.

The right to a public trial is generally satisfied if members of the public and press have the opportunity to attend the trial and report what they have observed. It has also been suggested that, at the very least, the defendant's relatives, friends, and counsel must be allowed to be present for the requirement of a public trial to be satisfied. It is this point, particularly as it relates to the jury selection process, that has become a point of contention for many Texas trial court’s in recent years.


The prime example of the situation described here can be found in a case from the 232nd District Court of Harris County which Parnham & McWilliams recently had reversed on appeal. During jury selection, the court bailiff asked for all members of the audience to leave the courtroom to allow room for the prospective jury panel to be brought into the courtroom. The standard jury panel for felony cases in Harris County is approximately sixty (60) venirepersons. This number of people takes up the entirety of the public seating area of the standard Harris County courtroom. As a result, it has (or had) become the regular course of business to remove the public from the courtroom to allow the venire panel to be seated. However, no other accommodations were considered and none of the excluded members of the public were informed that they could return to the courtroom after the panel had been seated. It was simply the standard operating procedure of that court (as well as most if not all the other Harris County District Courts) and had never really been questioned. In our case, the Court of Appeals reversed the defendant’s conviction because the trial abused its discretion by implementing this practice.

There is a presumption that a criminal trial shall be open and public, but this presumption may be overcome if it is shown that closure is necessary to preserve higher values, and if the closure is narrowly tailored to fit that interest. This decision must be based on the circumstances of each individual case. There is a four-part test for determining whether the right to a public trial has been violated: (1) the party seeking to close the hearing must advance an overriding interest which is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the court must consider reasonable alternatives; and (4) the court must make findings adequate to support its action.

If the defendant's right to a public trial is denied by the trial court in an abuse of discretion, the usual remedy on appeal is reversal and remand. Trial courts are required to consider alternatives to closure even when they are not offered by the parties in part because criminal trials are important to the public whether or not any party has asserted the right. A closure should be implemented pursuant only to a narrowly drawn order that articulates the interest being served by closure and makes findings specific enough that a reviewing court can determine whether closure was the proper.
-By Dee McWilliams,  Parnham & McWilliams

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process.
If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. Visit http://www.parnhamandmcwilliams.com for more information.

The Sixth Amendment “Confrontation Clause”

The Sixth Amendment to the Constitution confers numerous rights on the citizens of the United States in regards to their defense in a criminal prosecution. One of the most important of these is found in what is referred to as the “Confrontation Clause”, that is, the defendant’s right to be confronted by the witnesses against them in a criminal prosecution.

The importance of this right was recognized following the trial of Sir Walter Raleigh for treason in 1603. At his trial, Raleigh was convicted largely based on a letter implicating him for treason, written by alleged accomplice Lord Cobham. Despite Raleigh’s objections, Lord Cobahm was never brought before the court to testify; instead, the letter was simply read to the jury without allowing Raleigh the opportunity to cross-examine him. Raleigh was convicted by the jury, sentenced to death, and eventually executed without ever being given the opportunity to confront Lord Cobham about his claims. Later one of Raleigh’s trial judges would lament, “the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.”

Since Raleigh’s trial the defendant’s right to confront and cross-examine witnesses against him in a criminal prosecution has been regarded as paramount to conducting a fair trial. Prior to the founding of the United States, several colonial governments such as Pennsylvania, New Hampshire, Delaware, and North Carolina included the right of a defendant to confront witnesses in a criminal trial in their individual Declarations of Rights. The First Congress of the United States agreed with colonial advocates of this right and enshrined it in the Sixth Amendment of the 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 wherein 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 defense.” 

Recent Supreme Court decisions have reiterated the importance of the Confrontation Clause in the context of a criminal prosecution: these decisions have rejected attempts by the government in both State and Federal prosecutions to admit unconfronted testimony as evidence against defendants. The Supreme Court has also denied the use of recorded statements of witnesses who are unavailable to testify at trial, as well as unconfronted scientific data collected government agencies. Just as the inclusion of Lord Cobham’s letter undermined the Court of England’s ability to ascertain the truth in Sir Walter Raleigh’s trial, the Court has noted that the reliability of a witness’ testimony can only be assessed through “the crucible of cross-examination.”

Challenging the government’s use of evidence on Sixth Amendment grounds can be a complicated matter and can mean the difference between conviction and aquittal of an alleged crime. Because of the importance of this right and its application, it is crucial to be represented by an attorney capable of navigating this area of the law.

 If you have been accused of a crime, contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you, and we will work tirelessly to ensure the best possible outcome for your case.