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Public Trial – Test for Closure, Generally and with Respect to Defendant’s Family

State v. Dhosi J. Ndina2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding1Closure of the courtroom to numerous members of defendant’s family during witness testimony implicated the right to public trial:

¶51      Although the United States Supreme Court has stated that pursuant to the Sixth Amendment right to a public trial, “an accused is at the very least entitled to have his friends, relatives and counsel present,” [27] federal appellate courts have recognized that “the exclusion of a family member or friend may, in rare circumstances . . . , not implicate the Sixth Amendment public trial guarantee.” [28]

¶52      Such “rare circumstances” are not present in the instant case. The circuit court’s exclusion of every family member except the defendant’s mother (who did not understand English) plainly implicates the values served by the Sixth Amendment right to a public trial. A criminal defendant’s family may play a critical role in verifying that the defendant “is fairly dealt with and not unjustly condemned”; in keeping the defendant’s “triers keenly alive to a sense of their responsibility and to the importance of their functions”; and in “encourag[ing] witnesses to come forward and discourag[ing] perjury,” particularly in a case in which many of the witnesses for either side are themselves members of the defendant’s family. [29]

¶53      The facts of the instant case contrast sharply with the facts of cases in which courts have concluded that a closure was so trivial as not to implicate the Sixth Amendment right to a public trial. Cases holding that a closure is trivial are typically characterized by the exclusion of an extremely small number of persons from the courtroom [30] or, alternatively, by a more general exclusion in effect for an extremely short period of time. [31]

¶54      In the instant case, the circuit court excluded the defendant’s entire family, with the sole exception of the defendant’s mother, for three full days of witness testimony. The closure encompassed several people, and it was not brief or inadvertent. The closure implicated the values of the right to a public trial. The closure implicated the values of (1) ensuring 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.

Issue/Holding2The closure was, however, justified under the circumstances:

¶56      Closure of a criminal trial is justified when four conditions are met: “(1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure.” [32] The case law typically refers to this four-part test as the “Waller test,” referring to the United States Supreme Court’s decision in Waller v. Georgia, 467 U.S. 39 (1984). [33]

¶61      The circuit court reasonably concluded that the overriding interest of promoting truthfulness served by its sequestration order was imperiled by the conduct of the defendant’s family members. The circuit court’s determination that family members were contributing to violations of the sequestration order is supported by the following information that appears in the record: (1) the circuit court witnessed family members entering and leaving the courtroom; (2) members of the victim’s family went to the prosecutor with concerns that the persons entering and leaving the courtroom had been conveying information to potential witnesses; and (3) the circuit court witnessed family members in the courtroom gallery talking loudly as witnesses were testifying and even “nodding in approval or disapproval of witnesses’ testimony, in full view of the jury.”

The court adds that generally the trial judge should hold an evidentiary hearing before ordering closure, but that this record is sufficient to support closure even without a hearing, ¶¶63-64. Nor was the exclusion order (17 members of Ndina’s family) overbroad: “it would have been difficult if not impossible for the circuit court to determine which family members were likely to convey the contents of witness testimony to any of the numerous family members slated to testify,” ¶66. And, given that the defendant failed to present any reasonable alternatives to exclusion to family members, the trial court did not “err[] in failing to consider alternatives that no party asked it to consider,” ¶82. (Moreover, the trial court in the supreme court’s view implicitly concluded that “no less restrictive alternative” sufficed, ¶83.)


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