Before the voir dire
examination of prospective jurors
began at a trial in California Superior Court for the rape and
murder of a teenage girl, petitioner moved that the voir
be open to the public and the press. The State opposed
the motion, arguing that, if the press were present, juror
responses would lack the candor necessary to assure a fair trial.
The trial judge agreed and permitted petitioner to attend the
"general" but not the "individual" voir dire
All but approximately three days of the 6-week voir dire
was thus closed to the public. After the jury was empaneled,
petitioner moved for release of the complete transcript of the
proceedings, but both defense counsel and the
prosecutor argued that release of the transcript would violate the
jurors' right to privacy. The court denied the motion and, after
the defendant had been convicted and sentenced to death, denied
petitioner's second application for release of the voir
transcript. Petitioner then sought in the California
Court of Appeal a writ of mandate to compel the trial court to
release the transcript and vacate the order closing the voir
proceedings. The petition was denied, and the California
Supreme Court denied petitioner's request for a hearing.
1. The guarantees of open public proceedings in criminal trials
cover proceedings for the voir dire
potential jurors. Pp. 464 U. S.
(a) The historical evidence reveals that the process of
selection of jurors has presumptively been a public process with
exceptions only for good cause shown. The presumptive openness of
the jury selection process in England carried over into proceedings
in colonial America, and public jury selection was the common
practice in America when the Constitution was adopted. Pp.
464 U. S.
(b) Openness enhances both the basic fairness of the criminal
trial and the appearance of fairness so essential to public
confidence in the criminal justice system. Public proceedings
vindicate the concerns of the victims and the community in knowing
that offenders are being brought to account for their criminal
conduct by jurors fairly and openly selected. Closed proceedings,
although not absolutely precluded, must be rare, and only for cause
shown that outweighs the value of openness.
Page 464 U. S. 502
The presumption of openness may be overcome only by an
overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that
interest. Pp. 464 U. S.
2. The presumption of openness has not been rebutted in this
case. There were no findings to support the trial court's
conclusion that an open proceeding would threaten the defendant's
right to a fair trial and the prospective jurors' interests in
privacy. Even with findings adequate to support closure, the
court's orders denying access to the voir dire
failed to consider whether alternatives were available to protect
the prospective jurors' interests. To preserve fairness and at the
same time protect legitimate privacy, a trial judge should inform
the prospective jurors, once the general nature of sensitive
questions is made known to them, that those individuals believing
public questioning will prove damaging because of embarrassment may
properly request an opportunity to present the problem to the judge
but with counsel present and on the record. When
limited closure is ordered, the constitutional values sought to be
protected by holding open proceedings may be satisfied later by
making a transcript of the closed proceedings available within a
reasonable time, if the judge determines that disclosure can be
accomplished while safeguarding the juror's valid privacy
interests. Even then a valid privacy interest may rise to a level
that part of the transcript should be sealed, or the name of a
juror withheld, to protect the person from embarrassment. Pp.
464 U. S.
Vacated and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR,
JJ., joined. BLACKMUN, J., post,
p. 464 U. S. 513
and STEVENS, J., post,
p. 464 U. S. 516
filed concurring opinions. MARSHALL, J., filed an opinion
concurring in the judgment, post,
p. 464 U. S.
Page 464 U. S. 503
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether the guarantees of open
public proceedings in criminal trials cover proceedings for the
examination of potential jurors.
Albert Greenwood Brown, Jr., was tried and convicted of the rape
and murder of a teenage girl, and sentenced to death in California
Superior Court. Before the voir dire
prospective jurors began, petitioner, Press-Enterprise Co., moved
that the voir dire
be open to the public and the press.
Petitioner contended that the public had an absolute right to
attend the trial, and asserted that the trial commenced with the
proceedings. The State opposed petitioner's
motion, arguing that, if the press were present, juror responses
would lack the candor necessary to assure a fair trial.
The trial judge agreed, and permitted petitioner to attend only
the "general voir dire.
" He stated that counsel would
"individual voir dire
with regard to death
qualifications and any other special areas that counsel may feel
some problem with regard to . . . in private. . . ."
App. 93. The voir dire
consumed six weeks, and all but
approximately three days was closed to the public.
After the jury was empaneled, petitioner moved the trial court
to release a complete transcript of the voir dire
proceedings. At oral argument on the motion, the trial judge
Page 464 U. S. 504
described the responses of prospective jurors at their voir
"Most of them are of little moment. There are a few, however, in
which some personal problems were discussed which could be somewhat
sensitive as far as publication of those particular individuals'
situations are concerned."
at 103. Counsel for Brown argued that release of
the transcript would violate the jurors' right of privacy. The
prosecutor agreed, adding that the prospective jurors had answered
questions under an "implied promise of confidentiality."
at 111. The court denied petitioner's motion,
concluding as follows:
"I agree with much of what defense counsel and People's counsel
have said and I also, regardless of the public's right to know, I
also feel that's rather difficult that by a person performing their
civic duty as a prospective juror putting their private information
as open to the public which I just think there is certain areas
that the right of privacy should prevail and a right to a fair
trial should prevail and the right of the people to know, I think,
should have some limitations and, so, at this stage, the motion to
open up . . . the individual sequestered voir dire
proceedings is denied without prejudice."
After Brown had been convicted and sentenced to death,
petitioner again applied for release of the transcript. In denying
this application, the judge stated:
"The jurors were questioned in private relating to past
experiences, and while most of the information is dull and boring,
some of the jurors had some special experiences in sensitive areas
that do not appear to be appropriate for public discussion."
at 39. Petitioner then sought in the California
Court of Appeal a writ of mandate to compel the Superior Court to
Page 464 U. S. 505
transcript and vacate the order closing the voir dire
proceedings. The petition was denied. The California Supreme Court
denied petitioner's request for a hearing. We granted certiorari.
459 U.S. 1169 (1983). We reverse.
The trial of a criminal case places the factfinding function in
a jury of 12 unless, by statute or consent, the jury is fixed at a
lesser number or a jury is waived. The process of juror selection
is itself a matter of importance, not simply to the adversaries but
to the criminal justice system. In Richmond Newspapers, Inc. v.
Virginia, 448 U. S. 555
448 U. S. 569
(1980), the plurality opinion summarized the evolution of the
criminal trial as we know it today, and concluded that, "at the
time when our organic laws were adopted, criminal trials both here
and in England had long been presumptively open." A review of the
historical evidence is also helpful for present purposes. It
reveals that, since the development of trial by jury, the process
of selection of jurors has presumptively been a public process,
with exceptions only for good cause shown.
The roots of open trials reach back to the days before the
Norman Conquest when cases in England were brought before "moots,"
a town meeting kind of body such as the local court of the hundred
or the county court. [Footnote
] Attendance was virtually compulsory on the part of the
freemen of the community, who represented the "patria," or the
"country," in rendering judgment. The public aspect thus was
"almost a necessary incident of jury trials, since the presence of
a jury . . . already insured the presence of a large part of the
public." [Footnote 2
Page 464 U. S. 506
As the jury system evolved in the years after the Norman
Conquest, and the jury came to be but a small segment representing
the community, the obligation of all freemen to attend criminal
trials was relaxed; however, the public character of the
proceedings, including jury selection, remained unchanged. Later,
during the 14th and 15th centuries, the jury became an impartial
trier of facts, owing in large part to a development in that
period, allowing challenges. [Footnote 3
] 1 W. Holdsworth, History of English Law 332,
335 (7th ed.1956). Since then, the accused has generally enjoyed
the right to challenge jurors in open court at the outset of the
trial. [Footnote 4
Although there appear to be few contemporary accounts of the
process of jury selection of that day, [Footnote 5
] one early record, written in 1565, places the
trial "[i]n the towne house, or in some open or common place." T.
Smith, De Republica
Page 464 U. S. 507
Anglorum 96 (Alston ed.1906). Smith explained that "there is
nothing put in writing but the enditement":
"All the rest is done openlie in the presence of the Judges, the
Justices, the enquest, the prisoner, and so many as will or can
come so neare as to heare it,
and all depositions and
witnesses given aloude, that all men may heare from the mouth
of the depositors and witnesses what is saide.
at 101 (emphasis added). If we accept this account,
it appears that, beginning in the 16th century, jurors were
selected in public.
As the trial began, the judge and the accused were present.
Before calling jurors, the judge "telleth the cause of their
[thereby] giveth a good lesson to the
at 96-97 (emphasis added). The
indictment was then read; if the accused pleaded not guilty, the
jurors were called forward, one by one, at which time the defendant
was allowed to make his challenges. Id.
at 98. Smith makes
clear that the entire trial proceeded "openly, that not only the
xii [12 jurors], but the Judges, the parties and as many
[others] as be present may heare.
This open process gave assurance to those not attending trials
that others were able to observe the proceedings, and enhanced
public confidence. The presence of bystanders served yet another
purpose, according to Blackstone. If challenges kept a sufficient
number of qualified jurors from appearing at the trial, "either
party may pray a tales.
" 3 W. Blackstone Commentaries
*364; see also
M. Hale, The History of the Common Law of
England 342 (6th ed. 1820). A "tales" was the balance necessary to
supply the deficiency. [Footnote
Page 464 U. S. 508
The presumptive openness of the jury selection process in
England, not surprisingly, carried over into proceedings in
colonial America. For example, several accounts noted the need for
talesmen at the trials of Thomas Preston and William Wemms, two of
the British soldiers who were charged with murder after the
so-called Boston Massacre in 1770. [Footnote 7
] Public jury selection thus was the common
practice in America when the Constitution was adopted.
For present purposes, how we allocate the "right" to openness as
between the accused and the public, or whether we view it as a
component inherent in the system benefiting both, is not crucial.
No right ranks higher than the right of the accused to a fair
trial. But the primacy of the accused's right is difficult to
separate from the right of everyone in the community to attend the
which promotes fairness.
The open trial thus plays as important a role in the
administration of justice today as it did for centuries before our
separation from England. The value of openness lies in the fact
that people not actually attending trials can have confidence that
standards of fairness are being observed; the sure knowledge that
anyone is free to attend gives assurance that established
procedures are being followed and that deviations will become
known. Openness thus enhances both the basic fairness of the
criminal trial and the appearance of fairness so essential to
public confidence in the system. Richmond Newspapers, Inc. v.
448 U.S. at
448 U. S. 569
This openness has what is sometimes described as a "community
therapeutic value." Id.
at 448 U. S. 570
Criminal acts, especially
Page 464 U. S. 509
violent crimes, often provoke public concern, even outrage and
hostility; this in turn generates a community urge to retaliate and
desire to have justice done. See
T. Reik, The Compulsion
to Confess 288-295, 408 (1959). Whether this is viewed as
retribution or otherwise is irrelevant. When the public is aware
that the law is being enforced and the criminal justice system is
functioning, an outlet is provided for these understandable
reactions and emotions. Proceedings held in secret would deny this
outlet and frustrate the broad public interest; by contrast, public
proceedings vindicate the concerns of the victims and the community
in knowing that offenders are being brought to account for their
criminal conduct by jurors fairly and openly selected. See
United States v. Hasting, 461 U. S. 499
461 U. S. 507
(1983); Morris v. Slappy, 461 U. S.
, 461 U. S. 14
"People in an open society do not demand infallibility from
their institutions, but it is difficult for them to accept what
they are prohibited from observing."
Richmond Newspapers, supra,
at 448 U. S. 572
Closed proceedings, although not absolutely precluded, must be rare
and only for cause shown that outweighs the value of openness.
] In Globe
Newspaper Co. v. Superior Court, 457 U.
(1982), we stated:
"[T]he circumstances under which the press and public can be
barred from a criminal trial are limited; the State's justification
in denying access must be a weighty
Page 464 U. S. 510
one. Where . . . the State attempts to deny the right of access
in order to inhibit the disclosure of sensitive information, it
must be shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that
at 457 U. S.
-607. The presumption of openness may be overcome
only by an overriding interest based on findings that closure is
essential to preserve higher values, and is narrowly tailored to
serve that interest. The interest is to be articulated along with
findings specific enough that a reviewing court can determine
whether the closure order was properly entered. We now turn to
whether the presumption of openness has been rebutted in this
Although three days of voir dire
in this case were open
to the public, six weeks of the proceedings were closed, and media
requests for the transcript were denied. [Footnote 9
] The Superior Court asserted two interests
in support of its closure order and orders denying a transcript:
the right of the defendant to a fair trial, and the right to
privacy of the prospective jurors, for any whose "special
experiences in sensitive areas . . . do not appear to be
appropriate for public discussion." Supra
at 464 U. S. 504
Of course the right of an accused to fundamental fairness in the
jury selection process is a compelling interest. But the California
court's conclusion that Sixth Amendment and privacy interests were
sufficient to warrant prolonged closure was unsupported by
Page 464 U. S. 511
showing that an open proceeding in fact threatened those
interests; [Footnote 10
hence it is not possible to conclude that closure was warranted.
] Even with
findings adequate to support closure, the trial court's orders
denying access to voir dire
testimony failed to consider
whether alternatives were available to protect the interests of the
prospective jurors that the trial court's orders sought to guard.
Absent consideration of alternatives to closure, the trial court
could not constitutionally close the voir dire.
The jury selection process may, in some circumstances, give rise
to a compelling interest of a prospective juror when interrogation
touches on deeply personal matters that person has legitimate
reasons for keeping out of the public domain.
Page 464 U. S. 512
The trial involved testimony concerning an alleged rape of a
teenage girl. Some questions may have been appropriate to
prospective jurors that would give rise to legitimate privacy
interests of those persons. For example a prospective juror might
privately inform the judge that she, or a member of her family, had
been raped but had declined to seek prosecution because of the
embarrassment and emotional trauma from the very disclosure of the
episode. The privacy interests of such a prospective juror must be
balanced against the historic values we have discussed and the need
for openness of the process.
To preserve fairness and at the same time protect legitimate
privacy, a trial judge must at all times maintain control of the
process of jury selection, and should inform the array of
prospective jurors, once the general nature of sensitive questions
is made known to them, that those individuals believing public
questioning will prove damaging because of embarrassment, may
properly request an opportunity to present the problem to the judge
but with counsel present and on the record.
By requiring the prospective juror to make an affirmative
request, the trial judge can ensure that there is in fact a valid
basis for a belief that disclosure infringes a significant interest
in privacy. This process will minimize the risk of unnecessary
closure. The exercise of sound discretion by the court may lead to
excusing such a person from jury service. When limited closure is
ordered, the constitutional values sought to be protected by
holding open proceedings may be satisfied later by making a
transcript of the closed proceedings available within a reasonable
time, if the judge determines that disclosure can be accomplished
while safeguarding the juror's valid privacy interests. Even then a
valid privacy right may rise to a level that part of the transcript
should be sealed, or the name of a juror withheld, to protect the
person from embarrassment.
Page 464 U. S. 513
The judge at this trial closed an incredible six weeks of
without considering alternatives to closure.
Later the court declined to release a transcript of the voir
even while stating that "most of the information" in the
transcript was "dull and boring." Supra
at 464 U. S. 504
Those parts of the transcript reasonably entitled to privacy could
have been sealed without such a sweeping order; a trial judge
should explain why the material is entitled to privacy.
Assuming that some jurors had protectible privacy interests in
some of their answers, the trial judge provided no explanation as
to why his broad order denying access to information at the
was not limited to information that was actually
sensitive and deserving of privacy protection. Nor did he consider
whether he could disclose the substance of the sensitive answers
while preserving the anonymity of the jurors involved.
Thus not only was there a failure to articulate findings with
the requisite specificity, but there was also a failure to consider
alternatives to closure and to total suppression of the transcript.
The trial judge should seal only such parts of the transcript as
necessary to preserve the anonymity of the individuals sought to be
The judgment of the Court of Appeal is vacated, and the case is
remanded for proceedings not inconsistent with this opinion.
It is so ordered.
Pollock, English Law Before the Norman Conquest, 1 Select Essays
in Anglo-American Legal History 88, 89 (1907).
Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 388 (1932);
3 W. Blackstone, Commentaries *349.
In 1352, a statute was enacted to permit challenges to petit
jurors on the ground of their participation as "indicators" on the
presenting jury. 25 Edw. 3, Stat. 5, ch. 3; see
Plucknett, A Concise History of Common Law 109 (1929). Objections
had always been allowed on grounds of personal hostility. 1 W.
Holdsworth, History of English Law 332, 324-325 (7th ed.1956).
In Peter Cook's Trial,
4 Har.St.Tr. 737, 738-740 (O.B.
1696), the accused himself attempted to pose questions directly to
jurors in order to sustain challenges.
"You may ask upon a Voyer Dire, whether he [the juror] have any
Interest in the Cause; nor shall we deny you Liberty to ask whether
he be fitly qualified, according to Law by having a Freehold of
at 748. And in Harrison's Trial,
Har.St.Tr. 308, 313 (O.B. 1660), the reporter remarks that the
defendant's persistence in challenging jurors provoked laughter in
the courtroom: "Here the People seemed to laugh," he writes, upon
the defendant's 10th peremptory challenge.
As noted in Richmond Newspapers, Inc. v. Virginia,
448 U. S. 555
448 U. S. 565
n. 5 (1980), it is not surprising that there is little in the way
of contemporary record of the openness of those early trials.
Historians have commented that early Anglo-Saxon laws
"deal rather with the novel and uncertain, than with the normal
and undoubted rules of law. . . . Why trouble to record that which
every village elder knows?"
E. Jenks, A Short History of English Law 3-4 (2d ed.1922).
By the statute 35 Hen. 8, ch. 6 (1543), the judge was empowered
to award a "tales de circumstantibus,
of persons present
in court, to be joined to the other jurors to try the cause." 3 W.
at *365. If the judge issued such a
writ, the sheriff brought forward "talesmen" from among the
bystanders in the courtroom. These talesmen were then subject to
the same challenges as the others.
Legal Papers of John Adams 17, nn. 51, 52, 18 (1965) (Adams)
(quoting William Palfrey to John Wilkes, Oct. 1770, in Elsey, John
Wilkes and William Palfrey, 34 Col.Soc.Mass., Pubns.
423-425 (1943)); 3 Adams 49, n. 9 (quoting Acting Governor Thomas
Hutchinson in Additions to Hutchinson's History 32 (C. Mayo ed.));
3 Adams 100.
That for certain purposes, e.g.,
double jeopardy, a
trial begins when the first witness, Wade v. Hunter,
336 U. S. 684
336 U. S. 688
(1949), or the jurors, Downum v. United States,
372 U. S. 734
(1963), are sworn does not bear on the question presented here. The
rules of attachment of jeopardy represent the broad perception that
the Government's action has reached the point where its power to
retrace its steps must be checked by the "countervailing interests
of the individual protected by the double jeopardy clause of the
fifth amendment." United States v. Velazquez,
490 F.2d 29,
34 (CA2 1973); accord, United States v. Jorn, 400 U.
, 400 U. S. 480
(1971). By contrast, the question we address -- whether the
process must be open -- focuses on First, rather
than Fifth, Amendment values and the historical backdrop against
which the First Amendment was enacted.
We cannot fail to observe that a voir dire
such length, in and of itself, undermines public confidence in the
courts and the legal profession. The process is to ensure a fair
impartial jury, not a favorable one. Judges, not advocates, must
control that process to make sure privileges are not so abused.
Properly conducted, it is inconceivable that the process could
extend over such a period. We note, however, that, in response to
questions, counsel stated that it is not unknown in California
courts for jury selection to extend six months.
We have previously noted that, in some limited circumstances,
closure may be warranted. Thus, a trial judge may,
"in the interest of the fair administration of justice, impose
reasonable limitations on access to a trial."
"[T]he question in a particular case is whether that control is
exerted so as not to deny or unwarrantedly abridge . . . the
opportunities for the communication of thought and the discussion
of public questions immemorially associated with resort to public
448 U.S. at 448 U. S.
-582, n. 18 (quoting Cox v. New Hampshire,
312 U. S. 569
312 U. S. 574
Petitioner contends that respondent's closure order was based on
the requirement in Hovey v. Superior Court, 28 Cal. 3d 1
80, 616 P.2d 1301 (1980), that jurors answer voir dire
questions concerning juror death qualifications "outside the
presence of . . . fellow venirepersons." Id.
at 81, 616
P.2d at 1354. The docket sheet merely states, however, that
petitioner's motion to be admitted to jury voir dire
denied and granted in part, as stated on the record." The
transcript of hearing on the motion is unenlightening on this
App. 93. Thus, it is not clear that the judge's
ruling was based on Hovey.
Assuming that Hovey
was the basis for the trial court's
order, it is unclear that the interests Hovey
protect could have justified respondent's closure order. In
the California Supreme Court focused on studies
that indicated that jurors were prejudiced by the answers of other
jurors during voir dire.
There was no indication that the
presence of the public or press affected jurors. The California
Supreme Court, in fact, stated that its decision would not "in any
way affect the open nature of a trial." 28 Cal. 3d at 80-81, 616
P.2d at 1354.
JUSTICE BLACKMUN, concurring.
I agree that, in this case, the trial judge erred in closing the
proceeding and in refusing to release a
transcript of that proceeding without appropriate specific findings
that nondisclosure was necessitated by a compelling governmental
interest and was narrowly tailored to serve that interest. I write
separately to emphasize my understanding
Page 464 U. S. 514
that the Court does not decide, nor does this case require it to
address, the asserted "right to privacy of the prospective jurors."
at 464 U. S.
Certainly, a juror has a valid interest in not being required to
disclose to all the world highly personal or embarrassing
information simply because he is called to do his public duty. We
need not decide, however, whether a juror, called upon to answer
questions posed to him in court during voir dire,
legitimate expectation, rising to the status of a privacy right,
that he will not have to answer those questions. See Nixon v.
Administrator of General Services, 433 U.
, 433 U. S. 458
(1977); Whalen v. Roe, 429 U. S. 589
429 U. S. 599
(1977). [Footnote 2/1
Page 464 U. S. 515
I am concerned that recognition of a juror's privacy "right"
would unnecessarily complicate the lives of trial judges attempting
to conduct a voir dire
proceeding. Could a juror who
disagreed with a trial judge's determination that he had no
legitimate expectation of privacy in certain information refuse to
answer without a promise of confidentiality until some superior
tribunal declared his expectation unreasonable? Could a juror ever
refuse to answer a highly personal, but relevant, question, on the
ground that his privacy right outweighed the defendant's need to
know? I pose these questions only to emphasize that we should not
assume the existence of a juror's privacy right without considering
carefully the implications of that assumption.
Nor do we need to rely on a privacy right to decide this case.
No juror is now before the Court seeking to vindicate that right.
Even assuming the existence of a juror's privacy right, the trial
court erred in failing to articulate specific findings justifying
the closure of the voir dire
and the refusal to release
the transcript. More important, as the trial court recognized, the
defendant has an interest in protecting juror privacy in order to
encourage honest answers to the voir dire
] The State has a
similar interest in protecting juror privacy, even after the trial
-- to encourage juror honesty in the future -- that almost always
will be coextensive with the juror's own privacy interest. Thus,
there is no need to determine whether the juror has a separate
assertable constitutional right to prevent disclosure of his
Page 464 U. S. 516
during voir dire.
His interest in this case, and in
most cases, can be fully protected through the interests of the
defendant and the State in encouraging his full cooperation.
With these qualifications, I join the Court's opinion. I agree
that the privacy interest of a juror is a legitimate consideration
to be weighed by a trial court in determining whether the public
may be denied access to portions of a voir dire
or to a transcript of that proceeding. I put off to another day
consideration of whether and under what conditions that interest
rises to the level of a constitutional right.
As to most of the information sought during voir dire,
it is difficult to believe that, when a prospective juror receives
notice that he is called to serve, he has an expectation, either
actual or reasonable, that what he says in court will be kept
private. Despite the fact that a juror does not put himself
voluntarily into the public eye, a trial is a public event. See
Craig v. Harney, 331 U. S. 367
331 U. S. 374
(1947). See also Globe Newspaper Co. v. Superior Court,
457 U. S. 596
(1982); Richmond Newspapers, Inc. v. Virginia,
448 U. S. 555
(1980); Gannett Co. v. DePasquale, 443 U.
(1979). And, as the Court makes clear today,
like the trial itself, is presumptively a
public proceeding. The historical evidence indicates that voir
has been conducted in public and most prospective jurors
are aware that they will be asked questions during voir
to determine whether they can judge impartially.
On other hand, courts have exercised their discretion to prevent
unnecessarily intrusive voir dire
Sprouce v. Commonwealth,
2 Va.Cas. 375 (1823) ("[In England] .
. . the juror is not obliged to answer any question tending to fix
infamy, or disgrace, on him . . ."); Ryder v. State,
Ga. 528, 535, 28 S.E. 246, 248 (1897) ("Certainly, neither the
court nor counsel should ask any question which would involve a
breach of the juror's privilege to refuse to answer on the ground
that so doing would tend to incriminate, or otherwise disgrace,
him"). More recent cases have relied, however, not on juror
privacy, but on the trial judge's discretion to limit voir
to protect juror safety or to prevent irrelevant
questioning. See, e.g., United States v. Barnes,
121, 140 (CA2 1979), cert. denied,
446 U.S. 907 (1980);
United States v. Taylor,
562 F.2d 1345, 1355 (CA2),
cert. denied sub nom. Salley v. United States,
In closing the voir dire
and in refusing to release the
transcript, the trial court relied on both the defendant's right to
a fair trial and a juror's right to privacy. It did not make clear
whether it interpreted the California Supreme Court's decision in
Hovey v. Superior Court, 28 Cal. 3d
, 616 P.2d 1301 (1980), to require closure, see ante
at 464 U. S. 511
n. 11, or whether it concluded that the defendant had an additional
interest in protecting juror privacy to encourage juror honesty. In
any event, it concluded that the interests of the jurors and the
defendant were consistent, and that both required the protection of
JUSTICE STEVENS, concurring.
The constitutional protection for the right of access that the
Court upholds today is found in the First Amendment, [Footnote 3/1
] rather than the public trial
provision of the Sixth. [Footnote
] If the defendant had advanced a claim that his Sixth
Amendment right to a public trial was violated by the closure of
the voir dire,
it would be important to determine whether
the selection of the jury was a part of the "trial" within the
meaning of that Amendment. But the distinction between trials and
other official proceedings is not necessarily dispositive, or even
important, in evaluating the First Amendment issues. Nor is our
holding premised simply on our view as to how a
Page 464 U. S. 517
criminal trial is most efficaciously conducted. For the question
the Court decides today --
"whether the voir dire
process must be open -- focuses
on First . . . Amendment values and the historical backdrop against
which the First Amendment was enacted."
at 464 U. S. 509
The focus commanded by the First Amendment makes it appropriate
to emphasize the fact that the underpinning of our holding today is
not simply the interest in effective judicial administration; the
First Amendment's concerns are much broader. The "common core
purpose of assuring freedom of communication on matters relating to
the functioning of government," Richmond Newspapers, Inc. v.
Virginia, 448 U. S. 555
448 U. S. 575
(1980) (plurality opinion), that underlies the decision of cases of
this kind provides protection to all members of the public "from
abridgment of their rights of access to information about the
operation of their government, including the Judicial Branch."
at 448 U. S. 584
(STEVENS, J., concurring). See also id.
at 448 U. S.
-588 (BRENNAN, J., concurring in judgment). As
JUSTICE POWELL has written:
"What is at stake here is the societal function of the First
Amendment in preserving free public discussion of governmental
affairs. No aspect of that constitutional guarantee is more rightly
treasured than its protection of the ability of our people through
free and open debate to consider and resolve their own
Saxbe v. Washington Post Co., 417 U.
, 417 U. S. 862
(1974) (dissenting opinion). [Footnote
] This principle was endorsed by the Court in Globe
Newspaper Co. v. Superior Court, 457 U.
"Underlying the First Amendment right of access to criminal
trials is the common understanding that 'a major purpose of that
Amendment was to protect the free discussion
Page 464 U. S. 518
of government affairs.' Mills v. Alabama, 384 U. S.
, 384 U. S. 218
offering such protection, the First Amendment serves to ensure that
the individual citizen can effectively participate in and
contribute to our republican system of self-government."
at 457 U. S. 604
It follows that a claim to access cannot succeed unless access
makes a positive contribution to this process of self-governance.
Here, public access cannot help but improve public understanding of
the voir dire
process, thereby enabling critical
examination of its workings to take place. It is therefore, I
believe, entirely appropriate for the Court to identify the public
interest in avoiding the kind of lengthy voir dire
proceeding that is at issue in this case, ante
464 U. S. 510
n. 9. Surely such proceedings should not be hidden from public
view. [Footnote 3/5
Page 464 U. S. 519
The fact that this is a First Amendment case does not, of
course, mean that the public's right of access is unlimited.
Indeed, in other contexts in which the right of access has been
implicitly endorsed, the Court has made this plain. [Footnote 3/6
] As the Court recognizes, the
privacy interests of jurors may in some circumstances provide a
basis for some limitation on the public's access to voir
at 464 U. S.
-513. See also ante
at 464 U. S.
-516 (BLACKMUN, J., concurring). The First Amendment
source of the right of access to the voir dire
should not preclude frank recognition of the need to examine the
content of the censored communication in determining whether, and
to what extent, it may remain private. When the process of drawing
lines between what must be open and what may be closed begins, it
will be necessary to identify at least some of the limits by
reference to the subject matter of certain questions that arguably
may probe into areas of privacy that are worthy of protection.
Since that function can safely be performed without compromising
the First Amendment's mission of securing meaningful public control
over the process of governance, this form of regulation is not an
abridgment of any First Amendment right. In this context, as in
"a line may be drawn on the basis of content without violating
the government's paramount obligation of neutrality in its
regulation of protected communication."
Young v. American Mini Theaters, Inc., 427 U. S.
, 427 U. S. 70
(1976) (plurality opinion). [Footnote
Page 464 U. S. 520
In the case before us, as the Court correctly explains, there
can be no doubt that the trial court applied an impermissibly broad
rule of secrecy. Accordingly, I join the opinion of the Court.
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
It is, of course, well settled that the Fourteenth Amendment
makes this provision applicable to the abridgment of speech by the
States, including state judges. See, e.g., Nebraska Press Assn.
v. Stuart, 427 U. S. 539
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial. . . ." It was, of course, this
Amendment that was construed in Gannett Co. v. DePasquale,
443 U. S. 368
(1979), a case holding that the defendant's right to a public trial
cannot be asserted vicariously by persons who are not parties to
It is worthy of note that the orderly development of First
Amendment doctrine foreshadowed by JUSTICE POWELL's opinion in
almost certainly would have been delayed if
had not been decided as it was.
See also Houchins v. KQED, Inc., 438 U. S.
, 438 U. S. 30
(1978) (STEVENS, J., dissenting) (footnotes omitted):
"The preservation of a full and free flow of information to the
general public has long been recognized as a core objective of the
First Amendment to the Constitution. . . ."
"In addition to safeguarding the right of one individual to
receive what another elects to communicate, the First Amendment
serves an essential societal function. Our system of
self-government assumes the existence of an informed citizenry. As
" A popular Government, without popular information, or the
means of acquiring it, is but a Prologue to a Farce or a Tragedy,
or perhaps both. Knowledge will forever govern ignorance: And a
people who mean to be their own Governors must arm themselves with
the power which knowledge gives."
"9 Writings of James Madison 103 (G. Hunt ed. 1910). It is not
sufficient, therefore, that the channels of communication be free
of governmental restraints. Without some protection for the
acquisition of information about the operation of public
institutions such as prisons by the public at large, the process of
self-governance contemplated by the Framers would be stripped of
Of course, if this were a Sixth Amendment case, rather than a
First Amendment case, and if the defendant had no objection to
closure, the length of the voir dire
would be irrelevant.
Such is not the case under the rationale for today's decision.
In Zemel v. Rusk, 381 U. S. 1
the Court said: "The right to speak and publish does not carry with
it the unrestrained
right to gather information."
at 381 U. S. 17
(emphasis supplied). In Branzburg v. Hayes, 408 U.
.(1972), after rejecting any suggestion "that news
gathering does not qualify for First Amendment protection,"
at 408 U. S. 681
the Court held that the protection did not extend to a reporter's
refusal to testify before a grand jury, at least under the facts of
Farber, Content Regulation and the First
Amendment: A Revisionist View, 68 Geo. L.J. 727 (1980); Redish, The
Content Distinction in First Amendment Analysis, 34 Stan.L.Rev. 113
(1981); Schauer, Categories and the First Amendment: A Play in
Three Acts, 34 Vand.L.Rev. 265, 282-296 (1981); Shiffrin,
Defamatory Non-Media Speech and First Amendment Methodology, 25
UCLA L.Rev. 915, 942-963 (1978); Stephan, The First Amendment and
Content Discrimination, 68 Va.L.Rev. 203 (1982); Note, Content
Regulation and the Dimensions of Free Expression, 96 Harv.L.Rev.
JUSTICE MARSHALL, concurring in the judgment.
I agree with the result reached by the Court, but write
separately to stress that the constitutional rights of the public
and press to access to all aspects of criminal trials are not
diminished in cases in which "deeply personal matters" are likely
to be elicited in voir dire
464 U. S. 511
Indeed, the policies underlying those rights, see Richmond
Newspapers, Inc. v. Virginia, 448 U.
, 448 U. S.
-573 (1980) (plurality opinion); id.
448 U. S.
-597 (BRENNAN, J., concurring in judgment), are most
severely jeopardized when courts conceal from the public sensitive
information that bears upon the ability of jurors impartially to
weigh the evidence presented to them. Cf. Globe Newspaper Co.
v. Superior Court, 457 U. S. 596
457 U. S. 606
(1982) ("Public scrutiny of a criminal trial enhances the quality
and safeguards the integrity of the factfinding process . . .").
Therefore, prior to issuing a closure order, a trial court should
be obliged to show that the order in question constitutes the least
restrictive means available for protecting compelling state
interests. In those cases where a closure order is imposed, the
constitutionally preferable method for reconciling the First
Amendment interests of the public and the press with the legitimate
privacy interests of jurors and the interests of defendants in fair
trials is to redact transcripts in such a way as to preserve the
anonymity of jurors while disclosing the substance of their
at 464 U. S. 513
Only in the most extraordinary
Page 464 U. S. 521
circumstances can the substance of a juror's response to
questioning at voir dire
be permanently excluded from the
salutary scrutiny of the public and the press.
Also, I feel compelled to note my strong disagreement with the
Court's gratuitous comments concerning the length of voir
proceedings in this and other cases. The Court's opinion
"We cannot fail to observe that a voir dire
such length [six weeks], in and of itself, undermines public
confidence in the courts and the legal profession. The process is
to ensure a fair impartial jury, not a favorable one. Judges, not
advocates, must control that process to make sure privileges are
not so abused. Properly conducted, it is inconceivable that the
process could extend over such a period. We note, however, that in
response to questions, counsel stated that it is not unknown in
California courts for jury selection to extend six months."
at 464 U. S. 510
n. 9. The question whether the voir dire
this case extended for too long a period is not before this Court.
Not surprisingly, therefore, we know few of the facts that would be
required to venture a confident ruling on that question. Some of
the circumstances of which we are aware, however, cast considerable
doubt on the majority's judgment. Albert Greenwood Brown, Jr., was
accused of an interracial sexual attack and murder. [Footnote 4/1
] Given the history and
continuing legacy of racism in our country, that fact alone should
suggest that a greater than usual amount of inquiry may have been
needed in order to obtain a fair and impartial jury in this
Page 464 U. S. 522
case. I find it not at all "inconceivable" that the voir
process could have legitimately extended over six
Similarly, in the absence of facts not presently available to
the Court, it is wrong to assume, as does the majority opinion,
that a voir dire
proceeding as elaborate and
time-consuming as that which occurred in this case "in and of
itself undermines public confidence in the courts and the legal
After all, this was a capital case
involving an interracial sexual attack that was bound to arouse a
heightened emotional response from the affected community. In a
situation of this sort, the public's response to the use of
unusually elaborate procedures to protect the rights of the accused
might well be not lessened confidence in the courts, but rather
heightened respect for the judiciary's unshakeable commitment to
the ideal of due process even for persons accused of the most
serious of crimes. [Footnote
Furthermore, in the absence of a claim that the length of
proceedings violates federal law, this Court
strays beyond its proper role when it lectures state courts on how
best to structure such proceedings. We simply lack the authority to
forbid state courts to devote what we might consider an inordinate
amount of time to ensuring that a jury is unbiased.
For the foregoing reasons, I agree with the judgment, but cannot
join the opinion of the Court.
The criminal trial around which this suit revolves was one in
"the most serious and emotional of issues were presented -- the
rape and strangulation killing of a fifteen-year-old white
schoolgirl on her way to school by a black man twenty-six years of
age, with a prior conviction of forcible rape on an adolescent
Brief for Joseph Peter Myers (trial counsel for Albert Greenwood
Brown, Jr.) as Amicus Curiae
It is unlikely that there exists a public consensus regarding
the proper contours of voir dire
there is a lack of consensus within the legal community. See,
e.g., Ham v. South Carolina, 409 U. S. 524
(1973). See also
Babcock, Voir Dire: Preserving "Its
Wonderful Power," 27 Stan.L.Rev. 545 (1975) (limiting voir
examination undercuts the ability of litigants to utilize
fully the right to a jury trial and works to the relative
disadvantage of poor litigants who lack the resources to use other
means to gather information about potential jurors).