Stephen Smith on the Right to a Public Trial in the Time of COVID-19

Professor Stephen Smith has published The Right to a Public Trial in the Time of COVID-19, 77 Washington and Lee L. Rev. Online 1 (2020). The Sixth Amendment protects a criminal defendant’s right to a public trial lest our criminal courts become instruments of persecution. This right, however, is not absolute. A court may order a criminal trial to be closed to the public when the government has “an overriding interest” in doing so and the closure is narrowly tailored to serve that interest. In his article, Professor Smith considers how the COVID-19 pandemic and the related need for social distancing should factor into a court’s analysis of a criminal defendant’s public trial right. Professor Smith posits that “protecting public health is indisputably an ‘overriding’ interest.” He further argues that, given the nature of the pandemic threat and a lack of reasonable alternatives to courtroom closure, the exclusion of spectators from a criminal trial courtroom during the COVID-19 pandemic “should pass constitutional muster almost categorically, rather than as determined on a case by case basis.” The article also proposes several alternative means of serving the purposes of the Sixth Amendment right to a public criminal trial during the pandemic, including verbatim transcripts, audio recordings, and live video feeds. “In the ordinary course, the right to a public trial is not fully realized by the availability of transcripts or the presence of cameras. But in this time of COVID, when courtroom closures are otherwise justifiable when viewed through the [Supreme Court precedent] lens, these tools provide a ‘backstop,’ a check to ensure that the values of the right are honored, in some degree.”