Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 3, #7©

Issue: Propriety of closing a courtroom during a trial or hearing.

BY statute and by constitution, a defendant is entitled to a public trial. US Constitution, Amend VI; Civil Rights Law §12; Judiciary Law §4. This right can be abridged only upon a showing of compelling reasons. People v Ramos, 90 NY2d 490, 662 NYS2d 739 (1997), cert denied 118 S Ct 574.

Judiciary Law § 4 lists several types of proceedings, civil and criminal, where the court has discretion to exclude " all persons who are not directly interested therein . . ." However, the mere fact that a case involves one of those enumerated types is insufficient, without more, to exclude the public. People v Clemons, 78 NY2d 48, 571 NYS2d 433 (1991). The most common reasons offered by the prosecution in requesting closure are witness embarrassment (with sex crimes, for example), People v Clemons, supra; People v Chase, 265 AD2d 844, 695 NYS2d 792 (4th Dept 1999), or intimidation of witnesses by members of the audience, People v Parker, 193 AD2d 571, 598 NYS2d 214 (1st Dept 1993), or protection of police officers, Handling a Criminal Case in New York, § 18:30 et seq. (West Group 2000).

The party seeking closure must advance an overriding interest that is likely to be prejudiced. If granted, the closure must be no broader than necessary to protect that interest, and the court must consider reasonable alternatives to closing the proceeding. People v Tapia, 207 AD2d 286, 615 NYS2d 380 (1st Dept 1994); People v Grosso, __ AD2d __, 722 NYS2d 846 (4th Dept 2001). Before granting a party's request to close the courtroom, a hearing must be held. People v Hinton, 31 NY2d 71, 334 NYS2d 885 (1972), cert denied 410 US 911. Establishing the reason for closure after the witness has begun testifying in a closed courtroom is improper. People v Grosso, supra. In the proper circumstances, the Hinton hearing itself may be behind closed doors. People v Jones, 47 NY2d 409, 418 NYS2d 359 (1979), cert denied 444 US 946. Failure to conduct a hearing is error. People v Rivera, 195 AD2d 389, 600 NYS2d 248 (1st Dept 1993); cf. People v Portilla, 190 AD2d 827, 593 NYS2d 831 (2d Dept 1993). The court must make findings on the record that demonstrate the need for closure. Civil Rights Law § 4; People v Mateo, 73 NY2d 928, 539 NYS2d 727 (1989). The defendant does not have a right to be present at the inquiry. People v Green, 277 AD2d 11, 715 NYS2d 60 (1st Dept 2000).

The most frequently cited ground for seeking closure of the courtroom is the prosecution's desire to protect the identity of police officers, particularly undercover officers. People v Reynolds, 192 AD2d 320, 595 NYS2d 451 (1st Dept 1993); People v Miller, 190 AD2d 609, 593 NYS2d 812 (1st Dept 1993). Less frequently, the defense might request closure where, for example, the fear is that evidence that is arguably subject to suppression will prejudice the defendant's later right to a fair trial. The prosecution must establish the need for closure with particularity. The mere fact that a witness continues to engage in undercover activity is insufficient reason for closure. People v Martinez, 82 NY2d 436, 604 NYS2d 932 (1993). Rather, the undercover officer should testify with specificity as to work performed and to be performed, the geographic area of employment, threats received in the past relating to the work, and the dangers that the officer would be exposed to if his identity became known. See People v Crowder, 207 AD2d 559, 616 NYS2d 79 (2d Dept 1994).

Where, for example, no testimony showed that the undercover officer was operating in the locale in question, and the sole basis was that the officer had unapprehended individuals from whom they had purchased drugs, the appellate court termed this showing "perfunctory" and insufficiently particularized to the facts of the case. People v Davis, 210 AD2d 345, 620 NYS2d 14 (2d Dept 1994).

Posting a court officer outside the courtroom as a screening device may affect the defendant's right to a public trial. People v Jones, __ NY2d __, 2001 WL 493347 (2001).

"Economy is a banner under which you and I might operate. By economy, I do not mean the time-honored adjuration to be brief, be brief. On the contrary, I have seen many instances where over-compression obscures the meaning." -- Catherine Drinker Bowen


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