In 1995, the WA Supreme Court held that “the public trial right operates as an essential cog in the constitutional design of fair trial safeguards.” State v. Bone-Club, 906 P.2d 325, 328 (Wa. 1995).  Because this right is so essential, any courtroom closure must comport with the following five factors:

1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “serious and imminent threat” to that right.

2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.

3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.

4. The court must weigh the competing interests of the proponent of closure and the public.

5. The order must be no broader in its application or duration than necessary to serve its purpose. Id. at 327-8.

If the trial court fails to conduct an on the record inquiry into these five factors, the closure is unjustified and the remedy is an automatic reversal. In re Morris, 288 P.3d 1140 (Wa. 2012). This right is so important that a defendant may raise a violation on appeal for the first time.  Bone-Club, 906 P.2d 325;  See also State v. Brightman, 122 P.3d 150 (Wa. 2005); State v. Strode, 217 P.3d 310 (Wa. 2011); State v. Wise, 288 P.3d 1113 (Wa. 2012)

Since 2004, the Washington Supreme Court has decided at least 12 cases concerning the right to public trial. So far, Washington has declined to follow the federal de minimis standard.  Under the federal standard, an unjustified closure does not violate the right to public trial if it is so trivial it does not affect the values the sixth amendment was designed to protect. If the closure was trivial, the remedy is not an automatic reversal and the conviction will stand. See Waller v. Georgia, 467 U.S. 39, 48 (1984); Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. Ct. App. 1996)

The issue is once again before the Washington Supreme Court.  Justice Madsen has continually supported adopting a de minimis standard in situations where the defendant’s right was not actually violated and granting a new trial would create a windfall See  State v. Sublett, 292 P.3d 715 (Wa. 2012)(Justice Madsen summarizes her view in all previous concurring opinions).  Justices C. W. Johnson, Fairhurst, J. M. Johnson, and Wiggins have agreed from time to time.

Has the time come for Washington to adopt the federal de minimis standard?

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