A recent decision by the court of appeals illustrates the procedural pitfalls of a common practice: closing the courtroom during the testimony of the victim of an alleged sex crime. This practice is motivated by the best of intentions. The purpose is to spare the victim the embarrassment of discussing the intimate details of a sexual assault in front of a roomful of onlookers. There is also statutory support for the practice. G.S. 15-166 provides that: “In the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.” The statute suggests that the judge has an absolute right to close the courtroom. However, the defendant has a Sixth Amendment right to a “public trial,” and the public may also have a First Amendment right of access to court proceedings. As a result, a judge may not rely solely on G.S. 15-166 to support an order closing the courtroom. Instead, the judge must consider four points identified in Waller v. Georgia, 467 U.S. 39 (1984) (holding that a trial judge improperly closed the courtroom during the entirety of a suppression hearing in a RICO case based on concerns about the publication of recordings that were played only during a small portion of the hearing). The four [...]
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