Opinion
PD-0504-20
09-28-2022
APRIL LOREACE WILLIAMS, Appellant v. THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS GUADALUPE COUNTY
Slaughter, J., delivered the opinion of the Court in which Richardson, Yeary, Keel, and McClure, JJ., joined. Newell, J., filed a concurring opinion in which Keller, P.J., and Hervey, J., joined. Walker, J., filed a dissenting opinion.
OPINION
Slaughter, J
Does the temporary physical exclusion from a courtroom of a defendant's family member for the testimony of one witness at trial violate the Sixth Amendment right to a public trial when the excluded individual was virtually included by permitting him to observe the witness's testimony via a live video feed from a neighboring courtroom? Under the specific facts of this case, we hold that it does not. But, we caution that courts should rarely exclude any member of the public from a courtroom during criminal case proceedings. And before doing so, the court must consider the factors under Waller v. Georgia, 467 U.S. 39 (1984), to ensure that any such exclusion is justified. Nevertheless, under the narrow circumstances presented here, we conclude that the traditional Waller factors are not dispositive because, even assuming that the trial court's actions resulted in a partial closure of the courtroom, any such closure was so trivial or de minimis that it did not infringe on the values served by the Sixth Amendment. In so finding, we disagree with the court of appeals' conclusion that Appellant's right to a public trial was violated. Accordingly, we reverse the lower court's judgment and remand the case to that court for further proceedings.
I. Background
The Seguin Police Department organized a "controlled buy" of drugs wherein a confidential informant, Josh Brown, purchased crack cocaine from Appellant. Based on her sale of drugs to Brown, Appellant was indicted for delivery of a controlled substance, Penalty Group 1, in an amount of four grams or more but less than 200 grams.
When addressing pretrial matters prior to the commencement of voir dire, the State moved to use a pseudonym to refer to the confidential informant in this case. The defense objected. The prosecutor responded that the State did this "all the time in cases involving confidential informants" and that, contrary to defense counsel's assertion, use of a pseudonym has no bearing on Appellant's right of confrontation. The trial court ultimately granted the State's motion. We will therefore continue to use the pseudonym adopted by the trial court here.
United States v. Acosta-Colón, 741 F.3d 179, 187 (1st Cir. 2013) (citing Waller v. Georgia, 467 U.S. 39, 46-47 (1984)).
See Tex. Health & Safety Code § 481.112(d).
Waller, 467 U.S. at 46 (quoting Gannett Co., 443 U.S. at 380).
At Appellant's jury trial, the State first called Detective Jaime Diaz as a witness. Detective Diaz testified that on the day in question, he provided Brown with $180 in cash and special sunglasses equipped with a hidden recording device. Diaz then dropped Brown off near Brown's house. Shortly thereafter, Diaz observed Appellant arrive at the house, stay for five to ten minutes, and then leave. Brown returned to where Diaz was waiting in his patrol car and gave Diaz a plastic bag with a white rock substance in it. Diaz field tested the substance, which indicated the presence of cocaine. A subsequent lab test confirmed the result.
Following Diaz's testimony, the State planned to call Brown as a witness. But before calling Brown, the State requested that a spectator, Appellant's brother Jerry Williams, be temporarily excluded from the courtroom during Brown's testimony. The State contended that it had "credible and reliable information" that Williams's presence would intimidate Brown, which would affect his testimony. The State also provided caselaw to the court "supporting closing the courtroom because of the intimidation factor." To minimize the effects of the closure, the State offered to set up a live video feed in another room of the courthouse so that Williams could watch Brown's testimony in real time.
Defense counsel objected to the State's request. Counsel asserted that the State had failed to provide any evidence supporting its claim of witness intimidation and that the State "has to provide specific facts to support that notion[.]" Defense counsel further asserted that Williams's removal would detract from the jury's ability to assess Brown's credibility because one of the ways the jury evaluates credibility is by evaluating the witness while he is "making his claims in open court subject to being observed by whoever [sic] is in open court." Thus, excluding Williams from the courtroom "would essentially give [Brown] the ability to testify in a consequence-free environment," thereby providing him an "advantage over any other witness." The State countered that only Appellant has a right to confrontation, which is not infringed when a member of the public is excluded from the courtroom. The prosecutor also indicated that, in her experience, confidential informants are often threatened or victimized as a result of their testimony. And, in response to the assertion that the State failed to provide any evidence to support its intimidation claim, the prosecutor reiterated that the witness was a confidential informant. This statement suggested that the State could not (or would not) disclose any specific information regarding its claim of intimidation. The prosecutor emphasized that the State was "not saying that Jerry Williams cannot watch this person testify" and that it does not "violat[e] open court if we let him watch by Skype from another courtroom."
Specifically, the prosecutor stated, "The only reason [Williams] would be sitting in this courtroom is to intimidate a confidential informant. I was the former drug and gang interdiction prosecutor, I have prosecuted capital murder cases where confidential informants were killed and/or intimidated during the course of their testimony and I think there's zero reason behind- behind keeping him in the courtroom."
Gannett, 443 U.S. at 383.
At another point in the record preceding this discussion, the prosecutor asserted that Appellant's brother was a drug dealer. Specifically, in the course of arguing that the defense should not be permitted to ask the detective about how many cases the CI had done previously, the prosecutor stated, "The problem, Your Honor, is . . . her brother is sitting in the courtroom. He's also a drug dealer and so if we talk about how many cases this CI has done, the risk to his life increases exponentially. . . . There's no reason to talk about how many buys he did for law enforcement." However, the prosecutor did not offer any evidence or testimony showing that Appellant's brother was a drug dealer.
Waller, 467 U.S. at 46.
The trial court granted the State's request and overruled Appellant's objection. In its oral findings made on the record, the trial court found that "the State's interest outweighs the defendant's right [ ] to public scrutiny;" that the exclusion of Appellant's brother was "necessary to protect the confidential informant from intimidation that would traumatize him or render him unable to testify;" and that the exclusion was only "temporary and only for the testimony of the confidential informant[.]" The court further found that it was a "reasonable alternative" for Williams to watch Brown's testimony on a live video stream from another room. After Williams left the courtroom, the State called Brown as a witness and he was brought into the courtroom through a back door "for his safety."
In his testimony before the jury, Brown stated that he had met Appellant through a friend, the two were "[l]ike family," and he loved her "like a sister." He acknowledged that he had purchased drugs from her on multiple occasions. On the date in question, Brown called Appellant and asked her to come over to his house. Upon arrival, she pulled out a white rock, broke it into pieces, and weighed out seven grams. Brown paid Appellant $180 for the substance and then she left. A video and audio recording of the entire transaction captured by Brown's recording device was also admitted into evidence.
After the close of evidence, the jury convicted Appellant of the charged offense, and the trial court assessed her punishment at twenty years' imprisonment.
On appeal, the Fourth Court of Appeals reversed Appellant's conviction, holding that her Sixth Amendment right to a public trial had been violated by her brother's temporary exclusion from the courtroom. Williams v. State, No. 04-18-00883-CR, 2020 WL 2543308, at *3 (Tex. App.-San Antonio, May 20, 2020) (not designated for publication). The court first held that the trial court's actions constituted a partial courtroom closure, reasoning that "'[t]he exclusion of even a single person from court proceedings can violate a person's Sixth Amendment right to a public trial.'" Id. at *2 (quoting Turner v. State, 413 S.W.3d 442, 449 (Tex. App.-Fort Worth 2012, no pet.)). The court proceeded to consider whether the closure was justified under the framework set forth in Waller, 467 U.S. 39. Id. at *2-3. Recognizing that the fourth factor under Waller requires the trial court to make findings adequate to support the closure, the court of appeals determined that this requirement was not met here. Id. at *3. Ultimately it concluded that the record "lack[ed] specific factual findings, or any other evidence, identifying how the exclusion of [Appellant's] family member from the courtroom serves the interest advanced by the State of preventing intimidation of the confidential informant." Id. Observing that the violation of a defendant's public-trial right is structural error that does not require a showing of harm, the court of appeals reversed Appellant's conviction and ordered a new trial. Id.
The State filed a petition for discretionary review, which this Court granted on three grounds to evaluate the court of appeals' analysis of this issue.
The State's grounds for review are as follows:
1) The judge, on an at best, partially developed record, required one spectator to view one witness's testimony contemporaneously from a neighboring room. Is this the sort of closure requiring reversal contemplated by the right to a public trial?
2) Did the Fourth Court of Appeals fail to adequately address petitioner's argument that the courtroom was not closed as required by Rule 47.1 of the Texas Rules of Appellate Procedure?
3) Does the Fourth Court of Appeals' opinion fail to provide proper guidance and risk creating confusion for other courts when it failed to make a clear distinction between full and partial courtroom closures and the standards applicable to each type of closure?
After recounting the history of the right to a public trial, Chief Justice Burger notes in his plurality opinion that
[a] result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's criminal process 'satisfy the appearance of justice,' . . . and the appearance of justice can best be provided by allowing people to observe it.Richmond Newspapers, 448 U.S. at 571-72 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)).
II. Analysis
In its petition for discretionary review, the State raises two broad challenges to the court of appeals' analysis: First, it contends that the lower court erred by failing to recognize that the physical exclusion of Appellant's brother from the courtroom while still permitting him to view the proceedings on a live video stream did not constitute a true "closure" of the courtroom for Sixth Amendment purposes. Thus, absent a showing that Appellant's trial was actually closed to any member of the public, the State suggests that her claim must fail on this basis. Alternatively, the State argues that, even assuming these circumstances did constitute a closure of the courtroom, they still do not amount to a reversible Sixth Amendment violation. The State notes that the traditional Waller test applied by the court of appeals is appropriate when considering a complete courtroom closure wherein the public is excluded entirely from a proceeding. But here, there was, at best, only a partial closure. Appellant's brother was the only person physically excluded, and he was virtually included and able to view the proceedings in real time via the live video feed. Thus, the State contends that these circumstances do not implicate the same secrecy and fairness concerns as a complete courtroom closure. Instead, it suggests that these circumstances call for a modified, less stringent Sixth Amendment analysis. Under that less stringent standard, the State contends that Appellant's Sixth Amendment right to a public trial was not violated and that reversal of her conviction is not warranted.
Because we find the State's second argument to be dispositive, we focus our analysis on that issue and assume without deciding that the circumstances here constituted a partial closure of the courtroom. With respect to the State's second argument, given that we have not previously considered whether a modified Sixth Amendment analysis should apply in some situations involving a less-than-complete closure of the courtroom, we look to decisions from other jurisdictions to guide our analysis. Based on our review of the caselaw, we find that a modified Sixth Amendment analysis should apply here. Thus, strict application of the traditional Waller factors is unnecessary. But, we note that other jurisdictions have adopted at least two approaches to examining partial or trivial closures in this context. Which of the less-stringent analyses should apply here?
In two previous decisions, we have recognized the existence of authority from other jurisdictions addressing this issue, but we have never before directly considered whether it would be appropriate to deviate from the traditional Waller test under some circumstances. See Cameron, 490 S.W.3d at 68 (noting that "[s]ome courts have applied a less stringent test for 'partial' or 'trivial' closures, where members of the public are temporarily excluded from the courtroom," and citing federal precedent in support); Steadman v. State, 360 S.W.3d 499, 505 n.19 (Tex. Crim. App. 2012) (recognizing that "[s]ome courts, both state and federal, have held that the Sixth Amendment test laid down in Waller need be less stringent in the 'partial' closure context," but declining to apply that standard because Steadman involved a complete courtroom closure) (citation and quotations omitted).
Ms. Hines-Wright acted as counsel for the State. Mr. Perez acted as Appellant's trial counsel.
A. Standard of Review
The question of whether a defendant's Sixth Amendment right to a public trial was violated is a mixed question of law and fact that does not turn on credibility and demeanor. Cameron v. State, 490 S.W.3d 57, 70 (Tex. Crim. App. 2016) (op. on reh'g). In conducting this review, an appellate court must first defer to the trial court's findings of fact that are supported by the record. Id. The court must then resolve on a de novo basis: (1) "whether a defendant met [her] burden to show [her] trial was closed to the public based on the totality of the evidence, and then [(2)] the ultimate legal question of whether [her] public-trial right was violated." Id.
B. General Sixth Amendment Public-Trial Right Principles
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]" U.S. Const. amend. VI. This provision is applicable to the states through the Due Process Clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273 (1948). "A public trial is a trial which is open to the general public at all times." People v. Woodward, 841 P.2d 954, 956 (Cal. 1992). It is "one that is not secret; it is one that the public is free to attend." People v. Jones, 464 P.3d 735, 740 (Colo. 2020).
Further, Article I, § 10, of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a "speedy public trial." Tex. Const. art. I, § 10. This Court has observed that this language is "practically the same" as the language of the Sixth Amendment. Price v. State, 496 S.W.2d 103, 107 (Tex. Crim. App. 1973). In any event, the parties' arguments in this case focus on the Sixth Amendment right to a public trial under the federal Constitution and do not claim that it differs from the right under the Texas Constitution. Similarly, the court of appeals addressed only the Sixth Amendment right. Therefore, we base our analysis on the Sixth Amendment and do not address the nearly identical provision in the Texas Constitution.
See Weaver, 137 S.Ct. at 1909 (noting "the family of the accused" is one of the "various constituencies of the public").
In examining the purposes underlying the Sixth Amendment right to a public trial, the Supreme Court has explained that this right is "'for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.'" Waller, 467 U.S. at 46 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)). Further, "[i]n addition to ensuring that [the] judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury." Id. However, the right to an open trial is not absolute and "may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Id. at 45; see also Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App. 2012) ("The right to a public trial is not absolute and may be outweighed by other competing rights or interests, such as interests in security, preventing disclosure of non-public information, or ensuring that a defendant receives a fair trial."). "Such circumstances will be rare," and the "balance of interests must be struck with special care." Waller, 467 U.S. at 45 . Given the weighty interests at stake and the difficulty of assessing harm under these circumstances, a violation of the right to a public trial is structural error not subject to harmlessness review. Id. at 49; see also Lilly, 365 S.W.3d at 328 (recognizing that violation of public-trial right is structural error).
See also Gannett, 443 U.S. at 383 ("[T]here is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.").
Waller, 467 U.S. at 46
In Waller, the Supreme Court addressed a situation involving a complete closure of the courtroom to the public. Waller, 467 U.S. at 42. There, a seven-day hearing on a motion to suppress evidence was closed to the public entirely. Id. The rationale for the closure was that some of the evidence to be admitted at the hearing, wiretap evidence relating to a gambling scheme, was confidential and might be tainted if heard by the public in open court. Id. at 41-42. Ultimately, the wiretap communications comprised less than two-and-a-half hours of the evidence presented during the seven-day suppression hearing. Id. at 42. Thus, the question before the Supreme Court was whether the complete closure of the entire seven-day hearing was justified based on the minimal amount of confidential evidence that had been admitted. Id. at 43. In examining the Sixth Amendment question before it, the Court generally observed that:
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.Id. at 44 (quoting Press Enterprise Co. v. Superior Ct., 464 U.S. 501, 510 (1984)). The Court then articulated a four-factor analysis for determining whether a courtroom closure violates a defendant's Sixth Amendment public-trial right:
[(1)] the party seeking to close the [trial] must advance an overriding interest that is likely to be prejudiced, [(2)] the closure must be no broader than necessary to protect that interest, [(3)] the trial court must consider reasonable alternatives to closing the proceeding, and [(4)] it must make findings adequate to support the closure.Id. at 48.
Applying those factors, the Court held that "the closure of the entire suppression hearing plainly was unjustified." Id. at 48. Specifically, although it recognized that privacy concerns might justify closing portions of a suppression hearing to the public, it reasoned that the State's proffer "was not specific" enough to establish the claimed privacy interests and how they might be infringed. Id. It further reasoned that the trial court's findings were too "broad and general" to justify closure of the entire hearing. Id. The Court also observed that the trial court did not consider alternatives to complete closure such as closing only a portion of the hearing. Id. Thus, it concluded that a Sixth Amendment violation had occurred, and it ordered a new suppression hearing.
This Court has interpreted Waller as requiring a two-step test. Lilly, 365 S.W.3d at 329; Cameron, 490 S.W.3d at 68-69. In the first step, we determine whether a trial was, in fact, closed to the public. Lilly, 365 S.W.3d at 329. The defendant bears the initial burden under this first step to show that her trial was closed to the public; if she "fails to carry that burden, the analysis is concluded." Cameron, 490 S.W.3d at 69. If, on the other hand, the defendant succeeds in making such a showing, then we proceed to the second step, which asks us to determine whether the closure was proper under the four factors from Waller described above. Id. at 68; see also Lilly, 365 S.W.3d at 329. In Lilly, we explained that the trial court's findings are the "linchpin" of this second step and "must be on the record and specific." Lilly, 365 S.W.3d at 329 ("Proper findings will identify the overriding interest and how that interest would be prejudiced, why the closure was no broader than necessary to protect that interest, and why no reasonable alternatives to closing the proceeding existed.").
C. Partial Versus Complete Courtroom Closures
As noted above, Waller addressed a complete courtroom closure wherein the public was excluded entirely from the lengthy pretrial proceedings at issue there. However, numerous other courts have recognized a lesser type of closure, termed a "partial closure," that occurs when a courtroom remains open to some members of the public but is closed to others. See, e.g., United States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015) ("Nearly all federal courts of appeals [ ] have distinguished between the total closure of proceedings and situations in which a courtroom is only partially closed to certain spectators."); Garcia v. Bertsch, 470 F.3d 748, 752 (8th Cir. 2006) ("Many courts . . . have distinguished the complete closure in Waller from partial closures."). "Whether a closure is total or partial . . . depends not on how long a trial is closed, but rather [on] who is excluded during the period of time in question." United States v. Thompson, 713 F.3d 388, 395 (8th Cir. 2013). Thus, whereas "a total closure involves excluding all persons from the courtroom for some period [ ] a partial closure involves excluding one or more, but not all, individuals for some period." Simmons, 797 F.3d at 413.
In examining the appropriate Sixth Amendment analysis that should apply in situations of partial closure, courts have recognized that such closures do not implicate the same secrecy and fairness concerns that accompany a complete closure of the courtroom. Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992); see also United States v. Osborne, 68 F.3d 94, 98-99 (5th Cir. 1995) (stating that partial closure "does not raise the same constitutional concerns as a total closure, because an audience remains to ensure the fairness of the proceedings"). Thus, the "'impact of [a partial] closure is not as great, and not as deserving of such a rigorous level of constitutional scrutiny,'" as a total closure. Simmons, 797 F.3d at 413 (quoting Judd v. Haley, 250 F.3d 1308, 1316 (11th Cir. 2001)). Given this distinction, many courts have applied a modified version of the Waller test to partial closures.
In the modified Waller test applicable to partial closures, courts replace the first Waller factor, which ordinarily requires an "overriding interest" to support complete closure of the courtroom, with a less stringent "substantial reason" or "substantial interest" test. See id. at 414 (noting that in Sixth Circuit Court of Appeals, for situations involving partial closure, a less stringent "substantial reason" test replaces the first Waller factor that ordinarily requires an "overriding interest;" other three Waller factors remain the same); Bucci v. United States, 662 F.3d 18, 23 (1st Cir. 2011) (explaining that First Circuit and others require only a "substantial interest" rather than a "compelling" one in partial closure cases); Osborne, 68 F.3d at 98-99 (noting that at least five other federal circuit courts "have all found that Waller's stringent standard does not apply to partial closures, and have adopted a less demanding test requiring the party seeking the partial closure to show only a 'substantial reason' for the closure," and adopting that test in the Fifth Circuit).
A minority of jurisdictions have declined to apply a less rigorous "substantial reason" test for partial closures. See, e.g., People v. Jones, 750 N.E.2d 524, 529 (N.Y. 2001) (declining to apply less stringent standard for partial closures because Waller "already contemplates a balancing of competing interests"); Tinsley v. United States, 868 A.2d 867, 874 (D.C. 2005) (declining to apply "substantial reason" standard and stating, "[W]e are not persuaded that the distinction between a 'substantial reason' and an 'overriding interest' is a particularly meaningful one."); State v. Mahkuk, 736 N.W.2d 675, 685 (Minn. 2007) ("Although some federal circuit courts of appeals apply a lesser 'substantial reason' test to review the constitutionality of partial closures, we have not applied different tests to complete versus partial closures.").
Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (noting trier of fact is the "sole judge" of the credibility of the evidence).
Aside from modifying the first Waller factor by reducing the significance of the asserted interest at stake, the remaining three Waller factors remain in full effect. Thus, under this modified Waller test for partial closures, in addition to finding: (1) a "substantial reason" for the closure that is likely to be prejudiced if no closure occurs, a court must still ensure that: (2) the closure was no broader than necessary; (3) the trial court considered reasonable alternatives to closure; and (4) the record contains factual findings adequate to support the closure. Simmons, 797 F.3d at 414; see also Waller, 467 U.S. at 48. In applying this modified Waller test, courts have reached a variety of holdings, many of which largely hinge on the adequacy of the trial court's findings and the facts in the record to support the closure. Compare Simmons, 797 F.3d at 414-15 (concluding that Sixth Amendment was violated where trial court excluded three co-defendants from courtroom during testimony of witness to prevent intimidation; the record was insufficient to support closure because the trial court "asked no questions at all" to verify prosecution's claim of witness intimidation and instead simply relied on prosecutor's vague assertions), with Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989) (holding that partial closure did not violate Sixth Amendment where defendant's relatives were excluded from the courtroom during the complaining witness's testimony; the trial judge had "a substantial reason for the closure" in seeking to prevent witness intimidation, and the record supported that determination because judge interviewed witness in camera and verified basis for his fear).
See also Thompson, 713 F.3d at 396 (applying modified Waller test for partial closures and holding that no Sixth Amendment violation resulted from exclusion of defendant's family members during testimony of one witness at sentencing; "Considering the record before the district court, which laid out [the witness's] expressed fear of testifying against [the defendant] . . . we find no abuse of discretion[.]"); Woods, 977 F.2d at 76-78 (applying modified Waller test and concluding that no Sixth Amendment violation resulted from exclusion of family members during testimony of one witness at trial; trial court had a substantial reason for excluding defendant's family members during witness's testimony where witness expressed that she was afraid to testify in front of them).
We also found that the trial court failed to consider all reasonable alternatives to closure. Steadman, 360 S.W.3d at 508-10.
D. Trivial or De Minimis Closures
In addition to the modified Waller test described above, many jurisdictions have also adopted a distinct approach for situations involving closures deemed so "trivial" or de minimis as to not implicate the Sixth Amendment public-trial right at all. See, e.g., Peterson v. Williams, 85 F.3d 39, 40 (2d Cir. 1996) ("[E]ven an unjustified closure may, on its facts, be so trivial as not to violate" the Sixth Amendment); People v. Lujan, 461 P.3d 494, 499 (Colo. 2020) (noting that "many jurisdictions have held that some closures are simply so trivial that they do not rise to the level of a constitutional violation," and adopting such approach in Colorado). In those situations, rather than focusing on whether a closure was justified, as the Waller test does, courts instead evaluate as a preliminary matter "whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant . . . of the protections conferred by the Sixth Amendment." Peterson, 85 F.3d at 42; see also United States v. Perry, 479 F.3d 885, 890 (D.C. Cir. 2007) ("A courtroom closing is 'trivial' if it does not implicate the 'values served by the Sixth Amendment' as set forth in Waller.").
The Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and D.C. Circuits have endorsed this approach. See, e.g., United States v. Cervantes, 706 F.3d 603, 611-12 (5th Cir. 2013); United States v. Arellano-Garcia, 503 Fed.Appx. 300, 305 (6th Cir. 2012); United States v. Greene, 431 Fed.Appx. 191, 197 (3d Cir. 2011); United States v. Izac, 239 Fed.Appx. 1, 4 (4th Cir. 2007); United States v. Perry, 479 F.3d 885, 890-91 (D.C. Cir. 2007); Carson v. Fischer, 421 F.3d 83, 92 (2d Cir. 2005); United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003); Braun v. Powell, 227 F.3d 908, 920 (7th Cir. 2000); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994). Various state courts have also adopted this approach. See, e.g., State v. Smith, 876 N.W.2d 310, 329 (Minn. 2016); State v. Telles, 446 P.3d 1194 (N.M. Ct. App. 2019) (stating that there is a "uniform line of authority holding that a courtroom closure that is determined to be trivial does not meaningfully infringe upon the values protected by the right to a public trial"); State v. Turcotte, 239 A.3d 909 (N.H. 2020).
The majority declines to decide the case "solely" on the issue of whether the courtroom was actually closed to the public; it says that it agrees with the State that the courtroom was not closed in the "traditional sense." Yet, two sentences later, the majority argues against the State's position and points out serious fairness concerns. Thus, it is unclear to me whether this portion of the majority's opinion is attempting to set out precedent or dicta. Accordingly, I have confined my dissent to Part D of the majority opinion. I do, however, have serious doubts as to the majority's quasi-conclusion that there was no actual closure in this case-particularly as a large part of the majority's analysis is based on non-precedential cases addressing live streams of trials for COVID purposes, an analogy that is not apt here.
To assess whether a closure was trivial, courts look to whether the circumstances implicated the "values furthered by the public trial guarantee;" namely, "1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury." Peterson, 85 F.3d at 43; see also Waller, 467 U.S. at 46-47. If the closure did not jeopardize or subvert these values, then it is deemed too trivial to amount to a Sixth Amendment violation, and further analysis under the Waller factors becomes unnecessary. In evaluating triviality, courts should examine the totality of the circumstances and consider factors such as "the duration of the closure, the substance of the proceedings that occurred during the closure, whether the proceedings were later memorialized in open court or placed on the record, whether the closure was intentional, and whether the closure was total or partial." Lujan, 461 P.3d at 498-99. Applying these considerations, courts have frequently held that inadvertent or brief closures, or the exclusion of a single spectator, are too trivial to implicate the Sixth Amendment. On the other hand, courts have held that closures are not trivial where they are less fleeting, are longer in duration, or exclude individuals during a key witness's testimony. Ultimately, the triviality assessment must be made under the totality of the circumstances, and no bright-line rules apply. Moreover, the standard should be applied sparingly. See United States v. Gupta, 699 F.3d 682, 688 (2d Cir. 2012) (emphasizing triviality doctrine's "narrow application").
See, e.g., Carson, 421 F.3d at 85 (concluding that trial court's exclusion of defendant's ex-mother-in-law from a portion of the trial while failing to make particularized findings did not implicate the values underlying the Sixth Amendment); United States v. Ivester, 316 F.3d 955 (9th Cir. 2003) (holding that brief mid-trial closure to question jurors about safety concerns was trivial); Peterson, 85 F.3d at 44 (holding that where closure was "1) extremely short, 2) followed by a helpful summation [of the evidence], and 3) entirely inadvertent," the closure was trivial and thus "the defendant's Sixth Amendment rights were not breached"); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994) (concluding that closure, which was "brief and inadvertent," "unnoticed by any of the trial participants," and occurred only once, did not violate defendant's public-trial rights); Perry, 479 F.3d at 890 (holding that intentional exclusion of defendant's minor son for entirety of trial was trivial).
Majority op. at 22 n.16.
See, e.g., People v. Hassen, 351 P.3d 418, 422 (Colo. 2015) (finding that total closure of courtroom during two witnesses' testimony was not trivial); United States v. Rivera, 682 F.3d 1223, 1230 (9th Cir. 2012) (holding that exclusion of defendant's family members from sentencing hearing was not trivial); State v. Ndina, 761 N.W.2d 612 (Wis. 2009) (finding that exclusion of most of defendant's family for three days of testimony not trivial); Gonzalez v. Quinones, 211 F.3d 735 (2d Cir. 2000) (holding that intentional closure during key witness's testimony that lasted entire morning not trivial); Jones, 464 P.3d at 744 (finding that exclusion of defendant's parents during testimony of two key witnesses spanning afternoon of trial was not trivial).
An argument could be made that the other three prongs of the Waller test were met; however, the Waller test is not a factor, or balancing, test. Rather, it lists four requirements for a closure of a courtroom to be acceptable under the Sixth Amendment. Waller, 467 U.S. at 48; see also Lilly, 365 S.W.3d at 332-33 (finding, without addressing the other three prongs of the Waller analysis, that courtroom closure was not justified under the Waller test because the findings of fact were inadequate and did not justify closing Lilly's trial).
E. Applying the triviality doctrine here, there was no reversible Sixth Amendment violation because based on the specific facts, the presumptive closure did not implicate any of the values sought to be protected by the Sixth Amendment.
Considering the three analytical frameworks discussed above (the traditional Waller "overriding interest" test, the modified "substantial reason" test for partial closures, or the triviality doctrine), we conclude that the triviality doctrine is the appropriate framework for resolving Appellant's claim. That is because the exclusion here was: (1) solely the physical exclusion of a single witness while allowing for his virtual inclusion via the live stream from a neighboring courtroom; (2) for the testimony of only one witness which was brief; and (3) for testimony which was supported by an audio and video recording that was admitted into evidence.
As we have explained above, the core rationale underlying the triviality doctrine is that some circumstances amount to such a trivial or de minimis closure that the values sought to be protected by the Sixth Amendment are simply not implicated. See Peterson, 85 F.3d at 42; Perry, 479 F.3d at 890. The relevant values are: 1) ensuring that the defendant receives a fair trial; 2) reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) encouraging witnesses to come forward; and 4) discouraging perjury. Peterson, 85 F.3d at 43; Waller, 467 U.S. at 46-47. If none of these core values are meaningfully affected by the closure, it is unnecessary to require extensive justification, record support, and factual findings to validate the trial court's actions under either the traditional or modified Waller tests. It would also be unjust to reverse a conviction based on a deficiency in the record or findings to support closure where no actual infringement of the defendant's public-trial right has occurred. Thus, while we recognize and reaffirm that Waller is the prevailing test for evaluating whether a Sixth Amendment public-trial violation has occurred, it is not applicable in all circumstances.
On a case-by-case basis, it may be appropriate to conduct a preliminary inquiry into the nature of the closure to determine whether it implicates Sixth Amendment values at all. For reasons explained below, we conclude that to the extent there was a closure here, it was trivial and it is therefore unnecessary to scrutinize the trial court's actions under Waller.
1. Appellant received a fair trial.
With respect to the first value, ensuring a fair trial, while Appellant's brother was briefly physically excluded from the courtroom, he was virtually included by having the ability to view the proceedings in real time from a nearby room. This fact neutralizes the fairness and secrecy concerns that would otherwise arise when a spectator is excluded from the courtroom. Indeed, this singular circumstance sets this case apart from the vast majority of Sixth Amendment courtroom-closure cases cited above in which the excluded individual had no opportunity to view the proceedings. Although we recognize that there may be an infringement on the fairness of the proceedings where a defendant's family member is excluded during the testimony of even a single witness, we cannot say the same is true here where Appellant's brother was able to hear and view Brown's testimony via the livestream. Because Appellant's brother was virtually included, he had the ability to contemporaneously monitor the proceedings to ensure that Appellant was "fairly dealt with and not unjustly condemned[.]" Waller, 467 U.S. at 46 (quoting Oliver, 333 U.S. at 270 n.25).
We note that one factor often cited by courts in evaluating the triviality of a closure is whether the proceedings were "later memorialized in open court or placed on the record." Lujan, 461 P.3d at 499. By way of analogy here, the livestream provided the equivalent of a transcript in real time. Thus, the situation here is far less egregious than other situations in which an excluded individual has no opportunity to learn of the substance of the proceedings until long after the fact.
This is not to say that witness intimidation is not an overriding interest that could justify a closure of the court. As the majority notes, witness intimidation has been identified as a substantial interest that may justify a partial closure. However, there is no evidence in this case that witness intimidation would have actually occurred. For all we know based on the record, the State could have simply looked at Mr. Williams and perceived his physical appearance as threatening.
2. The trial participants were "keenly alive to a sense of their responsibility and to the importance of their functions," because they knew that Appellant's brother was in a nearby room watching Brown testify.
With respect to the second value, keeping the trial participants "keenly alive to a sense of their responsibility and to the importance of their functions," see id., we note that the judge and attorneys were aware that Appellant's brother was viewing the proceedings remotely in a nearby room. Given this awareness, the mere physical absence of Appellant's brother from the courtroom did not negatively impact this goal when all the relevant parties knew of the livestream arrangement.
3. There was nothing about the arrangement that would have discouraged witnesses from coming forward.
With respect to the third goal-encouraging witnesses to come forward-we note that Appellant's brother was not a witness to the drug transaction. Even if Appellant's brother had personal knowledge about any matters involved at trial, if he observed issues with Brown's testimony, he was fully capable of bringing such issues to the immediate attention of defense counsel and offering to rebut Brown's testimony with his own version of events. There is nothing to suggest that any other witness was discouraged from coming forward based on the livestream arrangement.
4. There is little to no risk that the physical absence of Appellant's brother in the courtroom encouraged perjury.
The drug transaction at issue was recorded with video and audio. The video evidence was played for the jury. Brown's testimony mostly provided additional context for what the jury observed in the video evidence. In fact, Brown's testimony was brief, spanning only fifteen pages of the reporter's record. Thus, introduction of the video evidence reduced the importance of Brown's testimony overall. Further, Brown testified in a fully open courtroom in the physical presence of Appellant and other spectators. While it is unclear whether Brown knew Appellant's brother was viewing the testimony remotely, under the totality of the circumstances we cannot discern any marginal increase in the risk of Brown perjuring himself on the basis of the livestream arrangement.
After analyzing the circumstances in light of the four triviality doctrine factors, we find that there was no meaningful infringement on any Sixth Amendment values as a result of the livestream arrangement. Therefore, there is no constitutional violation and further analysis under Waller is unnecessary. See Zornes v. Bolin, 37 F.4th 1411, 1418 (8th Cir. 2022) (holding that situation where spectator was excluded from courtroom but permitted to view proceedings remotely from observation room was too trivial to implicate Sixth Amendment). In reaching this holding, we emphasize that this approach constitutes an exceedingly narrow exception to the broad applicability of Waller, which remains the primary framework for analyzing courtroom closures under the Sixth Amendment. We further reiterate that trial courts should consider the Waller factors before excluding anyone from a courtroom.
Specifically, in Zornes the Eighth Circuit Court of Appeals denied federal habeas relief under similar circumstances by upholding a determination of the Minnesota Supreme Court finding no Sixth Amendment violation under the triviality doctrine. Zornes, 37 F.4th at 1418. There, the trial court had intentionally excluded the victim's brother from voir dire to prevent contact between him and prospective jurors, but the court permitted him to observe the proceedings remotely in a nearby room. Id. In finding that the Minnesota court had not engaged in an unreasonable application of federal law by rejecting a Sixth Amendment claim under these circumstances, the Eighth Circuit reasoned that the excluded individual "was able to observe jury selection from an observation area, and [the defendant] does not explain how that remote viewing by one spectator undermined the values furthered by the constitutional guarantee of a public trial." Id.
F. Response to the Concurring and Dissenting Opinions
In contrast to our approach above, it has been suggested by both the concurring and dissenting opinions that we should reject the triviality doctrine and instead apply the Waller test here. Specifically, the dissenting opinion urges that we should apply the traditional Waller "overriding interest" test and hold that the trial court's factual findings were inadequate to justify the closure. The concurring opinion suggests that we should apply the modified Waller "substantial reason" test and hold that the record is adequate to satisfy this test. Although our reasons for disagreeing with these approaches are likely apparent from our analysis above, we will briefly expand on our rationale here.
First, with respect to the suggestion by the dissenting opinion that we are bound to strictly adhere to the Waller "overriding interest" test here, we disagree. As we have already noted above, the Supreme Court in Waller addressed a complete closure of a seven-day suppression hearing. Because of this distinction, numerous courts, including the Fifth Circuit, have concluded that Waller does not apply with full force outside the context of a complete closure. See, e.g., Osborne, 68 F.3d at 98-99 (noting that the Fifth Circuit along with several other federal circuit courts "have all found that Waller's stringent standard does not apply to partial closures, and have adopted a less demanding test."); Garcia, 470 F.3d at 752 ("Many courts, including this one, have distinguished the complete closure in Waller from partial closures."). The dissent provides no persuasive explanation for why it disagrees with the majority of jurisdictions that have departed from Waller under these circumstances. Further, the Supreme Court has never directly addressed what standard should apply when a single spectator is excluded from the courtroom, let alone considered a situation wherein the physically excluded individual was virtually included through a livestream arrangement. Nor has it ever rejected the triviality doctrine, which has been in existence for more than twenty years. In short, we are unpersuaded by the dissent's position that we are bound to adhere to the "strict" dictates of Waller under these clearly distinguishable circumstances. Indeed, the dissent scarcely affords any weight to the fact that Appellant's brother was virtually included, and instead seeks to align this case with the more typical courtroom-closure cases in which a person is completely excluded from the proceedings with no immediate recourse and no ability to know what is transpiring behind closed doors. See diss. op., at 8-9 (discussing Steadman, 360 S.W.3d at 500).
The dissent also dismisses the triviality doctrine, in part, by reasoning that it is nothing more than a harm analysis, which is inapplicable in the context of a Sixth Amendment public-trial claim. But this observation reflects a misunderstanding of how a triviality analysis should function. As the Second Circuit Court of Appeals explained in Peterson:
A triviality standard, properly understood, does not dismiss a defendant's claim on the grounds that the defendant was guilty anyway or that he did not suffer "prejudice" or "specific injury." It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant-whether otherwise innocent or guilty-of the protections conferred by the Sixth Amendment.85 F.3d at 42. Thus, the triviality doctrine is a preliminary inquiry that focuses solely on the nature of the trial court's actions and whether they in any way jeopardized the values underlying the public-trial right. If as here, no such values were jeopardized, then no constitutional violation has occurred. When there is no constitutional violation, then there is no need for a harmless error analysis, because there is no error. It is also not appropriate to proceed to the second step of Waller, which focuses on whether the trial court's actions in infringing upon Sixth Amendment values were justified, when no such infringement has occurred in the first place.
Turning to the concurrence, it similarly suggests that we should apply Waller here, but it would adopt the modified "substantial reason" test in lieu of the more traditional test urged by the dissent. Nevertheless, like the dissent, the concurrence affords almost no analytical significance to the defining feature of this case-that the livestream arrangement permitted Appellant's brother to actually view the proceedings in real time. In support of its position, the concurrence cites two cases and says they are "directly analogous" to this case-Tinsley v. United States, 868 A.2d 867, 876 (D.C. Cir. 2005), and State v. Mahkuk, 736 N.W.2d 675, 685 (Minn. 2007). While both cases involved the physical exclusion of a defendant's family member from the courtroom, that is where the similarity to this case ends. Neither case involved a situation where the physically-excluded individual was virtually included and was permitted to observe the proceedings remotely in real time. The concurrence wholly fails to account for the significance of the brother's virtual inclusion. Indeed, it does not cite a single case applying Waller under such similar circumstances.
The concurrence also suggests that we have misconstrued the authority applying the triviality doctrine. That is incorrect. While the doctrine was originally devised in the context of an inadvertent closure, see Peterson, 85 F.3d at 40, the doctrine has expanded in scope to include even a narrow class of intentional closures. The inadvertence of a closure is but one factor to consider amongst the totality of the circumstances in evaluating whether a closure is trivial. Further, as we have already stated, while there are no bright-line rules in this context, the triviality doctrine should be employed only in narrow circumstances. To the extent the concurrence believes that our holding means that all partial closures are trivial, thereby allowing courts to routinely bypass the Waller requirement of an overriding or substantial interest, that is not our holding. On the contrary, we can envision that the vast majority of partial closures will not be trivial and will require full analysis under Waller. It is only unusual situations, such as this one, that may fall under the triviality framework.
See, e.g., Lujan, 461 P.3d at 498-99.
Finally, though we do not engage in our own analysis under Waller here for obvious reasons, we find it necessary to point out the ways in which the concurrence's proposed approach may actually undermine the public-trial right in practice. The concurrence suggests that the conviction in this case should be upheld even though the State made a "paltry" showing that permitting Appellant's brother to remain in the courtroom would have prejudiced a substantial interest. In essence, the concurrence appears to acknowledge, without expressly saying so, that the equities in this case do not weigh in favor of reversing the conviction (presumably because it believes there was no actual unfairness or unreasonableness inherent in the trial court's actions). So, to avoid a windfall to the defendant, it implicitly proposes watering down Waller's requirement of specific findings and record support for the closure to hold that these facts are adequate to meet the modified Waller test. Our concern with this approach is that, in future cases involving non-trivial closures where the values underlying the Sixth Amendment are actually implicated, courts may interpret the concurrence's approach as relaxing Waller's requirement of specific, on-the-record findings. See Lilly, 365 S.W.3d at 329 (explaining that trial court's findings are the "linchpin" of Waller's second step and "must be on the record and specific"). We decline to adopt such an approach that may ultimately impede the proper application of Waller to legitimate Sixth Amendment claims. Contrary to the concurrence's suggestion, the triviality standard is precisely well-suited for these circumstances where the nature of the closure itself is too minimal to justify finding a Sixth Amendment violation, but the record is arguably inadequate to satisfy the strict requirements of Waller. In short, we will not elevate form over function here and water down the essential requirements of Waller to accomplish the correct outcome.
The State's identified interest here was preventing witness intimidation, which has routinely been identified as both an overriding and substantial interest that can support a partial closure. See, e.g., Simmons, 797 F.3d at 414 (noting that courts "consistently hold that ensuring witness safety and preventing intimidation constitutes a substantial reason to justify the partial closure of the courtroom); Tinsley, 868 A.2d at 875 (recognizing that "protection of witnesses and avoidance of intimidation [are] overriding interests that may justify the closure of a criminal proceeding"). Here, were we to undertake a full Waller analysis, we would be inclined to agree with the dissent's view that, given the lack of facts in the record beyond the prosecutor's bare assertions alleging witness intimidation, the State failed to demonstrate how this interest would have been prejudiced by allowing Appellant's brother to remain in the courtroom. See, e.g., Mahkuk, 736 N.W.2d at 685 (applying Waller and holding that record and findings were inadequate to establish claim of witness intimidation; prosecutor's general assertion that witness was intimidated by defendant's family members was inadequate to justify closure because "there is no evidence from any witness asserting that a witness had been intimidated or threatened," and the "prosecutor's assertions [ ] are not evidence"). While we recognize that the circumstances suggested that the relationship between the witness and Appellant's family and the witness's status as a CI might lead to such intimidation, there were no other facts directly supporting the State's claim of intimidation, and the trial court made only conclusory findings in this regard.
III. Conclusion
In sum, under the totality of the circumstances presented here, and assuming that a partial closure of the courtroom occurred, we conclude that such closure, if any, was de mimimis or trivial and did not undermine the values furthered by the public-trial guarantee. Specifically, because the exclusion involved only a single individual during the testimony of one witness; the physically-excluded individual was virtually included and at all times able to view the testimony remotely; and the record does not reveal or even suggest any detrimental effects on the values served by the Sixth Amendment as a result of this arrangement, we conclude that no constitutional violation occurred. In reaching this holding, we emphasize that this approach should be sparingly employed in Sixth Amendment cases only under the narrowest of circumstances. Thus, in the vast majority of cases, Waller remains the appropriate inquiry, and trial courts should continue to apply the Waller factors with rigor before considering any closure of a courtroom. Because our approach requires consideration of the totality of the circumstances to determine whether a partial closure is trivial, it would be inappropriate for us to provide additional guidance in the absence of specific facts. Thus, we leave to courts hearing future cases with different facts the task of drawing the outer boundaries of what may constitute a trivial closure. Ultimately, given the particular facts presented here, we conclude that Appellant's constitutional rights were not infringed upon. Therefore, we reject the court of appeals' conclusion finding that these facts amounted to a Sixth Amendment violation and reverse its judgment. Because the lower court did not address all the issues raised by Appellant on appeal, we remand this case to the court of appeals for further proceedings.
DISSENTING OPINION
Walker, J.
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]" U.S. Const. amend. VI. This right to a public trial is an important one, predating "the ratification in 1791 of the Federal Constitution's Sixth Amendment[.]" In re Oliver, 333 U.S. 257, 266-67 (1948) ("In this country the guarantee to an accused of the right to a public trial first appeared in a state constitution in 1776."); Press-Enter. Co. v. Superior Ct., 464 U.S. 501, 505 (1984) ("The roots of open trials reach back to the days before the Norman Conquest[.]"). The public trial right is a personal one, acting for the benefit of the accused. Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 380 (1979); Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App. 2012). This right serves numerous purposes, such as helping "ensure a fundamentally fair process, since the public's very presence there helps keep judges, prosecutors, and witnesses on their toes[,]"1 allowing the public to see that the accused "is fairly dealt with and not unjustly condemned,"2 improving "the quality of testimony, induc[ing] unknown witnesses to come forward with relevant testimony, caus[ing] all trial participants to perform their duties more conscientiously, . . . generally giv[ing] the public an opportunity to observe the judicial system[,]"3 and discouraging perjury.4 Open courts also encourage faith in our judicial system. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571-72 (1980).5 The public trial guarantee has always been recognized as a safeguard against attempts to employ our courts as instruments of unjust persecution, and the knowledge that criminal trials are "subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." Oliver, 333 U.S. at 270; see also Huminski v. Corsones, 396 F.3d 53, 81 (2d Cir. 2005) (noting public trial right also protects against prosecutorial abuse). Further, "'the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions[.]'" Waller, 467 U.S. at 46 (quoting Gannett, 443 U.S. at 380).
The U.S. Supreme Court and this Court have held that a violation of the Sixth Amendment right to a public trial is a structural error. Weaver v. Massachusetts, 137 S.Ct. 1899, 1908 (2017); Lilly, 365 S.W.3d at 328. Structural errors "affect[] the framework within which the trial proceeds," and are not merely errors "in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310 (1991). "The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial." Weaver, 137 S.Ct. at 1907. A violation resulting in a structural error does not require a showing of harm-it is impervious to a harm analysis. Fulminante, 499 U.S. at 309-10; Lily, 365 S.W.3d at 328. "[I]n the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to 'automatic reversal' regardless of the error's actual 'effect on the outcome.'" Weaver, 137 S.Ct. at 1910 (quoting Neder v. United States, 527 U.S. 1, 7 (1999)).
The majority is correct in pointing out that the public trial right is subject to exceptions, and a court's closure will not always result in structural error warranting reversal. Id. at 1909. However, the Supreme Court has concluded that "a presumption of openness inheres in the very nature of a criminal trial under our system of justice."Richmond Newspapers, 448 U.S. at 573. And the cases where a judge may properly deprive a defendant of his personal right to an open courtroom should be rare. Weaver, 137 S.Ct. at 1909; Waller, 467 U.S. at 45; Lilly, 365 S.W.3d at 328.
The Supreme Court, the ultimate arbiter of constitutional law and the only federal court whose precedents are binding on this Court, has determined that closing a courtroom to the public is justified only if: (1) the party seeking to close the courtroom advances "an overriding interest that is likely to be prejudiced," (2) the closure is "no broader than necessary to protect that interest," (3) the trial court considers "reasonable alternatives to closing the proceeding, and" (4) the trial court makes "findings adequate to support the closure." Waller, 467 U.S. at 48. The "findings adequate to support the closure" should be "'specific enough that a reviewing court can determine whether the closure order was properly entered.'" Id. at 45, 48 (quoting Press-Enter. Co., 464 U.S. at 510); see also Lilly, 365 S.W.3d at 329 ("The findings must be on the record and specific."). "'[B]road' or 'generic' concerns will not serve to justify closure; otherwise they could become talismans for exclusion of the public in any and every case." Steadman v. State, 360 S.W.3d 499, 506 (Tex. Crim. App. 2012) (citing Presley v. Georgia, 558 U.S. 209, 215 (2010)). "Proper findings will identify the overriding interest and how that interest would be prejudiced, why the closure was no broader than necessary to protect that interest, and why no reasonable alternatives to closing the proceeding existed." Lilly, 365 S.W.3d at 329 (citing Presley, 558 U.S. at 215). Balancing the right to a public trial with the interests of the party seeking to close the courtroom must be done "with special care." Waller, 467 U.S. at 45.
In this case, the trial court closed the courtroom to Appellant's brother, Jerry Williams, on the State's bare assertion that it had "credible and reliable information that it would be very intimidating" for its witness to testify in front of Appellant's brother. The entire conversation proceeded as follows:6
THE COURT: Are we ready?
MS. HINES-WRIGHT: We are, Your Honor.
THE COURT: All right. Go ahead and --
MS. HINES-WRIGHT: At this point, Your Honor, the State would ask that the Courtroom be closed to Jerry Williams in the interest of not intimidating our witness to testify. The State has set up Skype so that he can watch it from another room, but we're asking that he be excluded from the courtroom because we have credible and reliable information that it would be very intimidating to our witness for him to be in the courtroom to testify. The State has provided the Court with caselaw supporting closing the courtroom because of the intimidation factor.
MR. PEREZ: Judge, defense would have to object. Number one, the State has not provided the Court any evidence of this information that allegedly would cause the witness to be in fear of testifying or intimidated of -- intimidated. I believe the caselaw says that the State has to provide specific facts to support that notion and, at this point, they've provided none. Therefore, their argument at this point is conclusory. Second, Judge, I would object on the basis that one of the ways the Jury evaluates the credibility of a witness is by observing them on the witness stand, observing their behavior, their body language, their eye contact, their mannerisms and that is meant, in my opinion, to be tested with the defendant obviously confronting her accuser, but also the -- the idea is that the witness is making his claims in open court subject to being observed by whoever is in open court.
I think to exclude people from the courtroom would essentially give the witness the ability to testify in a consequence-free environment without -- essentially without having to worry about -- let me rephrase.
Basically, if the witness is able to testify in a closed environment, I think that gives him an advantage over any other witness and I think that advantage prejudices my client, so I -- I would respectfully have to object.
MS. HINES-WRIGHT: Your, Honor, the only person who has a right to confrontation is April Williams. April Williams will be sitting at that table. We are not saying that Jerry Williams cannot watch this person testify; however, the
only reason he would be sitting in this courtroom is to intimidate a confidential informant. I was the former drug and gang interdiction prosecutor, I have prosecuted capital murder cases where confidential informants were killed and/or intimidated during the course of their testimony and I think there's zero reason behind -- behind keeping him in the courtroom. We're not violating open court if we let him watch by Skype from another courtroom.
THE COURT: All right.
MR. PEREZ: And also, Judge, once again, there's been no evidence -- there's been no proffer of evidence that the State says they have to substantiate this request.
MS. HINES-WRIGHT: Your Honor, the fact he's a confidential informant has been proffered to the Court.
THE COURT: The Court finds that the State's interest outweighs the defendant's right of -- to public scrutiny. The Court finds that exclusion of Jerry Williams from the courtroom during the testimony of the confidential informant is necessary to protect the confidential informant from intimidation that would traumatize him or render him unable to testify. This exclusion from the courtroom is temporary and only for the testimony of the confidential informant, and the Court finds that a reasonable alternative for Jerry Williams would be to watch the testimony in a live video stream feed from another room.
And that will be the order of the Court.
Notably missing from the record is any evidence, or findings, that would support the State's assertion that Mr. Williams would actually intimidate the witness. The State said that the witness is a "confidential informant"; however, testimony from confidential informants is common in criminal trials. Confidential informants inherently understand that their testimony could place them in danger of retaliation and that knowledge alone can make testifying somewhat intimidating. However, in this case, there is no actual evidence that the confidential informant would have been intimidated by the Appellant's brother being in the courtroom. A prosecutor's assertion is not evidence.
Surely, we are not allowing defendants' family members, who are members of the public at large,7 to be excluded merely because a confidential informant will be testifying. Cf. Oliver, 333 U.S. at 271-72 ("[A]n accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged."). We would be excluding members of the public from the courtroom in nearly every criminal trial involving controlled substances. The prosecutor's recollection of former cases in which "confidential informants were killed and/or intimidated during the course of their testimony" does nothing to prove that Appellant's brother's presence in the courtroom would have intimidated the confidential informant in this case.
Additionally, regarding the public trial right's purpose of discouraging perjury,8 the majority notes that although the witness's testimony was important to the State's case, video evidence was admitted depicting the transaction between the witness and Appellant, thereby-according to the majority-reducing the importance of the testimony and reducing the probability of perjury. This, in effect, amounts to nothing more than a harm analysis-which does not apply to Sixth Amendment public trial violations. Fulminante, 499 U.S. at 310 ("[T]he category of constitutional errors which are not subject to harmless error" includes "the right to public trial[.]"); Lilly, 365 S.W.3d at 328. Further, the majority's reasoning seems to imply that the availability of the public trial right correlates with the importance of a witness's testimony, something neither the Supreme Court, nor this Court, has ever held.
A video cannot and does not capture everything. It is not difficult to imagine a scenario where an individual in the courtroom knows more than what is portrayed by the evidence already admitted in trial-even if that evidence is a recording of the offense in question-and his mere presence in the courtroom encourages the witness to tell the truth. This is not intimidation. It is a measure of accountability for the testifying witness who is, by law, supposed to be telling the truth. See Tex. R. Evid. 603 (oath requirement); Tex. Penal Code Ann. § 37.02 (perjury statute). Additionally, barring such an individual from the courtroom means the finder of fact, the ultimate judge of credibility,9could miss out on observing the witness's credibility in front of someone who knows the whole story. A live feed is not a substitute for this-despite the majority's implication that the live feed was as effective as allowing Mr. Williams in the courtroom.
This Court has required a new trial due to a courtroom closure based on findings even more specific than those provided here. For example, in Steadman v. State, the trial court refused to allow Steadman's family in the gallery during voir dire. 360 S.W.3d at 500. The defense objected, and the trial court gave no reason for its ruling at that time beyond stating, "I don't believe we have enough room." Id. Steadman appealed, and the court of appeals remanded the cause to the trial court for additional findings of fact. Id. at 501. The trial court went on to enter "detailed written findings" noting, among other things, that the trial court "believed that having one or more of the Defendant's family members sitting in close proximity to the panel members would make such panel members uncomfortable and reticent to fully express their feelings, attitudes and possible prejudices[;]" "[a]llowing persons other than the parties, their attorneys, the attorney's staff and court personnel in this space creates security concerns[;]" "security concerns are heightened in this case[;]" and "[t]he Court did not seek to close the voir dire process but only to control the courtroom arrangement for security and decorum purposes." Id. at 501-02. The court of appeals subsequently found that the trial court's exclusion of Steadman's family members was justified because "the trial court advanced an overriding interest that was likely to be prejudiced: security." Id. at 503. We reversed and remanded the proceeding for a new trial, finding that while jury-panel contamination and courtroom security "could well prove sufficient to override a defendant's right to a public trial in the abstract[,]" the trial court failed to "'articulate' a tangible 'threat' to either of the interests he identified." Id. at 506, 510-11.10
According to Supreme Court precedent, if a trial was closed,11 the reviewing court decides whether the closure was proper using the Waller analysis. See e.g., Waller, 467 U.S. at 48; Lilly, 365 S.W.3d at 329. Despite the flimsy "evidence" purporting to justify the trial court's closure of the courtroom, and despite Appellant's family member not being allowed in the courtroom for a portion of the trial, the majority dismisses the Supreme Court's Waller standard and instead adopts a "triviality" standard. The majority concedes that a strict application of Waller would result in a reversal of the conviction,12 and consequently decides to apply a triviality standard as opposed to a strict Waller analysis-which was created, and has been approved of, by the Supreme Court. See e.g., Waller, 467 U.S. at 48; Presley, 558 U.S. at 213-14. The majority then upholds the conviction under the triviality standard.
In doing so, the majority suggests that it does not believe the trial court's closure to Mr. Williams caused any harm; it notes that undertaking a Waller analysis would lead to a result that "makes no sense under the facts of the case and would grant a windfall to the defendant[.]" Majority op. at 22 n.16. It further states, "We decline to apply Waller's . . . test to determine whether the closure here was justifiable when the facts fail to show that Appellant was in any real sense deprived of the protections of the Sixth Amendment." Id. Thus, the Court, in determining whether or not to apply the triviality standard, essentially conducted a harm analysis. Yet, the difficulty in assessing harm is the reason public trial violations are structural errors and not subject to a harm analysis. Weaver, 137 S.Ct. at 1910 ("[T]he Court has said that a public-trial violation is structural for a different reason: because of the 'difficulty of assessing the effect of the error.'") (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006)).
I see no need for our Court to adopt a standard other than the one already laid out by the Supreme Court. The Waller analysis is administrable by trial courts-it is not unworkable or overly convoluted-and it strikes a proper balance between respect for an accused's right to a public trial and any substantial overriding interests that may arise. Accordingly, I would apply the Waller analysis. I agree with the majority in that Waller would require a reversal and new trial as the findings purporting to justify the closure in this case were not "adequate to support the closure." See Waller, 467 U.S. at 48.13
In light of the Supreme Court jurisprudence discussed above, and the emphasis the Supreme Court has put on specific findings to support closing a courtroom, I am skeptical that excluding an individual from the courtroom on such flimsy evidence-evidence that essentially amounts to nothing more than the State saying, "take my word for it"-could ever pass constitutional muster and not be considered a structural error warranting reversal.14 When we are presented with an emerging question of law, I believe we should err on the side of preserving constitutional rights-not adopting mechanisms that circumvent those rights. I respectfully dissent.