On the other hand, courts in Oregon and North Carolina have rejected public trial challenges to statutes mandating the closure of court rooms during rape shield hearings. See State v. McNeil, 99 N.C.App. 235, 242, 393 S.E.2d 123 (1990) ; State v. Macbale, 353 Or. 789, 813–815, 305 P.3d 107 (2013) ; State v. Blake, 53 Or.App. 906, 909–920, 633 P.2d 831 (1981). The crux of the reasoning in these decisions is that, because a “rape shield” hearing “is a preliminary one and is conducted only to exclude from the trial that which is irrelevant to the proceeding,” and because “[u]nder the rules of evidence, that which is irrelevant should not be heard at all,” the closure of the court room for the hearing does not violate the defendant's Sixth Amendment right to a public trial.
"* * * Whenever a child under the age of 10 years is produced as a witness, the court shall, by an examination made by itself, publicly or separate and apart with counsel present, ascertain to its own satisfaction whether the child has sufficient intelligence and sense of obligation to tell the truth to be safely admitted to testify." The guarantee of a public trial embodied in the state and federal constitutions is not absolute. Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S Ct 2898, 61 L Ed 2d 608 (1979); State ex rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 284, 613 P.2d 23 (1980); State v. Blake, 53 Or. App. 906, 911, 633 P.2d 831 (1981), appeal dismissed 292 Or. 486, 640 P.2d 605 (1982). In some situations, countervailing policy concerns dictate that the right of the public and the defendant to an openly adjudicated proceeding must give way to other considerations.
289 Or at 284. Deiz was followed by our opinion in State v. Blake, 53 Or. App. 906, 633 P.2d 831 (1981), petition dismissed 292 Or. 486, 640 P.2d 605 (1982). The defendant in Blake challenged the constitutionality of former ORS 163.475(4), which provided that a hearing to determine the admissibility at trial of a victim's prior sexual conduct "shall [be] conduct[ed] * * * out of the presence of the jury and the public * * *."
The state acknowledges "the strong position in favor of a defendant's personal right to a public trial," see In Re Oliver, 333 U.S. 257, 68 S Ct 499, 92 L Ed 682 (1948); State v. Osborne, 54 Or. 289, 103 P. 62 (1909), but asserts that "it is equally true that '[t]he right to a public trial is not absolute,' " citing State v. Lehnherr, 30 Or. App. 1033, 569 P.2d 54 (1977). In State v. Blake, 53 Or. App. 906, 633 P.2d 831, rev allowed 291 Or. 893 (1981), rev dismissed 292 Or. 486, 640 P.2d 605 (1982), which involved the constitutionality of excluding the public from a hearing held to determine the admissibility of evidence regarding a sex crime victim's previous sexual conduct under former ORS 163.475(1), the lead opinion pointed out that "the protection of the privacy of a sex crime victim is a justifiable concern of the legislature." Further, the procedure under that statute involved a "period of public exclusion [that] is narrowly circumscribed and does not exceed the scope necessary to achieve its legitimate legislative purpose.
At the time that the legislature considered and enacted OEC 412 in 1981, an appellate case was pending that questioned the effect of Deiz on the closed-hearing requirement of ORS 163.475, the predecessor to OEC 412. After the 1981 legislative session ended, a divided Court of Appeals upheld the validity of ORS 163.475, review was allowed by this court, and then review was dismissed by this court because of the limited scope of the issue presented by the ruling under a repealed statute. State v. Blake, 53 Or. App. 906, 633 P.2d 831 (1981), rev dismissed, 292 Or. 486, 640 P.2d 605 (1982). In dismissing that proceeding, this court stated: "When we are required to apply the phrase `in chambers' it will be necessary to judicially construe the phrase."
pp.3d 685; 128 Cal.Rptr. 864 (1976), People v McKenna, 196 Colo. 367; 585 P.2d 275 (1978), Roberts v State, 268 Ind. 127; 373 N.E.2d 1103 (1978), People v Cornes, 80 Ill. App.3d 166; 399 N.E.2d 1346 (1980), State v Ball, 262 N.W.2d 278 (Iowa, 1978), State v Blue, 225 Kan. 576; 592 P.2d 897 (1979), Smith v Commonwealth, 566 S.W.2d 181 (Ky App, 1978), State v Dawson, 392 So.2d 445 (La, 1980), Cantrell v State, 50 Md. App. 331; 437 A.2d 696 (1981), State v Hamilton, 289 N.W.2d 470 (Minn, 1979), State v Howard, 121 N.H. 53; 426 A.2d 457 (1981), State v Ryan, 157 N.J. Super. 121; 384 A.2d 570 (1978), State v Herrera, 92 N.M. 7; 582 P.2d 384 (Ct App, 1978), People v Mandel, 61 A.D.2d 563; 403 N.Y.S.2d 63 (1978), rev'd on other grounds 48 N.Y.2d 952; 425 N.Y.S.2d 63; 401 N.E.2d 185 (1979), State v Fortney, 301 N.C. 31; 269 S.E.2d 110 (1980), State v Piper, 261 N.W.2d 650 (ND, 1977), State v Gardner, 59 Ohio St.2d 14; 391 N.E.2d 337 (1979), Cameron v State, 561 P.2d 118 (Okla Crim App, 1977), State v Blake, 53 Or. App. 906; 633 P.2d 831 (1981), State v McCoy, 274 S.C. 70; 261 S.E.2d 159 (1979), Washington v Cosden, 18 Wn. App. 213; 568 P.2d 802 (1977), State v Green, 260 S.E.2d 257 (W Va, 1979). III
Dale Jacobs, Judge. 53 Or. App. 906, 633 P.2d 831 (1981). J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review.
The Court of Appeals also based its decision on its conclusion that "the public's right to open courts only encompass[es] the right of public access to relevant and admissible evidence." 80 Or App at 758 (citing State v. Blake, 53 Or. App. 906, 919-20, 633 P.2d 831 (1981)). Under this analysis, an ORS 136.617 hearing may be secret because the trier of fact is not entitled to consider testimony and arguments presented at the hearing. The premise of the limitation of public access to the presentation of admissible evidence is that the public has an interest only in the evidence actually considered by the trier of fact in arriving at a decision.
In three post- Stocker cases, the Court of Appeals has ruled there was no abuse of discretion in failing to give a similar cautionary instruction. See, State v. Romel, 57 Or. App. 372, 377-78, 644 P.2d 643 (1982); State v. Blake, 53 Or. App. 906, 909, 633 P.2d 831 (1981), rev dismissed 292 Or. 486 (1982); State v. Harwood, 45 Or. App. 931, 609 P.2d 1312, rev den 289 Or. 337 (1980). In Harwood, the Court of Appeals held:
The court held that actual prejudice would be presumed. See also State v. Blake, 53 Or. App. 906, 913, 633 P.2d 831, appeal dismissed 292 Or. 486 (1982) ("The Osborne court did not require the defendant to demonstrate actual prejudice. Rather, the court found that once the defendant showed his constitutional right to a public trial had been violated, actual injury would be conclusively presumed.").