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56 UIC L. Rev. 1 (2022-2023)

handle is hein.journals/jmlr56 and id is 1 raw text is: THE RULE AND THE CONSTITUTION: WITNESS EXCLUSION AND THE RIGHT TO A PUBLIC TRIAL STEPHEN E. SMITH* Federal and state rules of evidence provide for the exclusion of potential witnesses from the courtroom. But, in criminal proceedings, the Sixth Amendment's right to a public trial presumes that a courtroom will be open. The public trial right has been widely interpreted to restrict even partial closures - the exclusion of an individual or group from a criminal courtroom. The rule on witnesses is potentially at odds with the right to a public trial. Witness exclusion, by rule, is almost automatic. The Sixth Amendment, on the other hand, requires heightened scrutiny before individuals may be excluded from the courtroom. Criminal defendants have accordingly objected to the exclusion of witnesses from their trials as violations of the right to a public trial. This short article concludes that there are two reasons that standard implementation of the Rule is not a Sixth Amendment violation. The first is that historical understandings of the Sixth Amendment's public trial right would have contemplated the use of longstanding witness sequestration rules. The second is that witness sequestration causes no meaningful prejudice to the amendment's purposes. This article also concludes that there are some circumstances where sequestration requests must give way to Sixth Amendment demands and proposes an approach to distinguishing between routine exclusions and those that demand a more searching inquiry. I. IN TR O D U CTIO N ................................................................................................. 1 II. T H E R U LE ...................................................................................................... 3 III. THE RIGHT TO A PUBLIC TRIAL................................................................... 5 IV. THE POTENTIAL CONFLICT BETWEEN THE RULE AND THE RIGHT TO A P U B LIC T R IA L ................................................................................................... 9 A. Judicial Responses to the Conflict...............................................11 V. THE RULE AND THE RIGHT TO A PUBLIC TRIAL CAN COEXIST ........... 16 A. The History of W itness Sequestration......................................16 B. Witness Sequestration is Consistent with the Purposes of the Right to a Public Trial................................................................21 VI. AN APPROACH TO THE LIMIT CASES ....................................................... 23 VII. CONCLUSION......................................................................................................25 1. INTRODUCTION The exclusion of witnesses from courtrooms before their testimony is standard practice, in compliance with federal and state rules of evidence.1 But the exclusion of individuals from a courtroom can violate a defendant's Sixth Amendment right to a public trial.2 Criminal * Associate Clinical Professor, Santa Clara University School of Law. This work was supported by a grant from the author's institution. The author is grateful for the assistance provided by the editors of UIC Law Review. 1. See infra section II. 2. U.S. Const. amend. VI (In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...). 1

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