Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Secret trials are the stuff of nightmares and a hallmark of a totalitarian state. The U.S. Supreme Court has noted that institutions employing secret trials “symbolized a menace to liberty.” In re Oliver, 333 U.S. 257, 269 (1948).

When the Framers of the Sixth Amendment included the requirement of a “public” trial, they were enshrining a longstanding protection of liberty. William Blackstone, a bestseller in the Framing era, noted public trials dated back to the Roman Republic. England had public trials before the Norman Conquest and a “right” to a public trial seems to have existed in the 1600s. The important American treatise writer, Joel Bishop suggested the right in the Sixth Amendment is attributable to “immemorial usage.” Richmond Newspapers v. Virginia, 448 U.S. 555, 565-568 (1980); Harold Shapiro, “Right to a Public Trial” 41 Journal of Criminal Law & Criminology 782 (1951).

The right is borrowed from the common law of England and contrasts with the civil law system (more common in Europe) which allows for private examination of witnesses. The Pennsylvania and North Carolina constitutions of 1776 both provided for open trials. There was little discussion of the provision in the debates over the Sixth Amendment. In re Oliver, 333 U.S. 257, 269 (1948); Max Radin, “The Right to a Public Trial” 6 Temple Law Quarterly 381 (1931).

For the individual being tried a public trial provides crucial protections. Quoting In re Oliver again: “the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” Page 270. Having proceedings out in the open provides “assurance that the proceedings were conducted fairly to all concerned” and discouraged “decisions based on secret bias of partiality.” Richmond Newspapers v, Virginia, 448 U.S. 555, 569 (1980).

For society at large public trials also serve valuable purposes. They discourage lying by witnesses (since someone who knows the truth could be in the courtroom), discourage bad behavior by participants, and provide an education on the legal system.

Put more simply, everyone (judge, attorney and witnesses alike), is likely to be on their best behavior when they know they are being observed. This is why parents whisper (or hiss) when they threaten their children at the grocery store.

This is a serious matter, though. In 1948, the Supreme Court could note: “we have been unable to find a single instance of a criminal trial conducted in camera [meaning in the judge’s chambers and not in open court] in any federal, state, or municipal court during the history of this country.” In re Oliver, page 266. That same year, an American citizen was arrested in Czechoslovakia and convicted of espionage in a secret trial ultimately escaping in 1952. Ken Lewis, “Leaving an Imprint” St. Augustine Record, September 26, 2003 at

How many Americans have been spared a similar fate because of the wisdom of the Framers? Yet another debt of gratitude we owe them.

William C. Duncan is director of the Marriage Law Foundation ( He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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March 23, 2012

Essay #25

3 replies
  1. Marc W. Stauffer
    Marc W. Stauffer says:

    Agreed; true transparency is essential to a fair trial. “For whatever is hidden is meant to be disclosed, and whatever is concealed is meant to be brought out into the open.” Mark 4:22.

  2. barb Zakszewski
    barb Zakszewski says:

    We definitely owe the Founders a Huge debt of gratitude for their insight and willingness to apply the lessons from history that they learned in framing the Constitution. Unfortunately, I’m sure they did not count on the court of public opinion so pervasive today. Internet, TV, instant access, all provide the speedy and open trials of today. The media and punduits of the world do us a grave disservice with their snap judgements and posturing for position in front of the cameras and microphones. Most trials are conducted before the accused is even arrested, or if they are arrested, everyone has an opionion. Are we back to the mob mentality, guilty until or even if you are proven innocent? We sure could use the Founders wisdom now!

  3. Linda & Halley
    Linda & Halley says:

    Totally agree with you vis a vis the press. After living in California during “the trial of the century”, and experiencing jury nullification, there are definitely two sides to the public trial coin.


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