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Subject Area: Law
Topic: The American Revolution and Constitution

§ 37.: Trials must be public.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 37.

Trials must be public.—

The next constitutional requirement is that the trial must be public. The object of this provision is to prevent the establishment of secret tribunals of justice, which can be made effective instruments for the oppression of the people. But there is a difficulty in determining what amount of publicity in criminal trials would satisfy this requirement of the constitution. It would not do to say that every person has a constitutional right to attend every criminal trial, whether he had an interest in the prosecution or not, for that would necessitate the construction for judicial purposes of a much larger building than is really needed for the ordinary conduct of the courts. Then, too, since this constitutional requirement was established for the protection of the accused, it would not be violating any rights of his, if the courts should be closed, in the trial of causes in which great moral turpitude is displayed, to those who are drawn thither by no real interest in the prosecution or the accused, or for the performance of a public duty, but merely for the gratification of a prurient curiosity. The admission of such persons may justly be considered injurious to the public morals, and not at all required as a protection against the oppression of star chambers. But, while it is undoubtedly true that this constitutional requirement could be satisfied, notwithstanding the public generally is excluded from attendance upon trials, where on account of the nature of the case public morals would likely be corrupted by an unnecessary exposure of human depravity, still it must be conceded that the present public sentiment in America is opposed to any exclusion of the public from attendance upon the sessions of the criminal courts, and an attempt of that kind, even if the court possessed the power under the constitution and laws, and that seems questionable, would raise a most dangerous storm of public indignation against the offending judge. It is only through the action of the legislature that it would be possible to impose effectively the limitations proposed. In framing these limitations, numerous difficulties would present themselves; and it would finally be ascertained that but two methods were feasible, viz.: either to leave it to the discretion of the court who shall be admitted to witness the trial, or to exclude the public altogether, and admit only the officers of the court, including members of the bar and jurors, the parties to the suit, witnesses, and others who are personally interested in the accused or the subject of the suit, and those whose presence is requested by the parties to the cause. Such is believed to be the law prevailing in Germany.1 Such a provision would seem to make the trial sufficiently public in order to protect the individual against unjust and tyrannical prosecutions, and likewise furnish the community with abundant means for enforcing a proper administration of the courts.

In the same connection, it would be well, in carrying out the same object, to exclude the reporters of the ordinary newspapers. While, as a matter of course, the preservation and publication of criminal trials and statistics are necessary to the public good, it is not only unnecessary as a protection of personal liberty, that they should appear in the ordinary public print, but it is highly injurious to the public morals, as well as revolting to the sensibilities of any one possessing a fair degree of refinement. The most enterprising of the American journals of the larger cities present daily to their reading public a full history of the criminal doings of the previous day, and the length of the reports increases with the nastiness of the details. The amount of moral filth, that is published in the form of reports of judicial proceedings, renders the daily paper unfit to be brought into a household of youths and maidens. There is greater danger of the corruption of the public morals through the publication of the proceedings of our criminal courts, than through the permission of attendance upon the sessions of the court. Only a few will or can avail themselves of that privilege, whereas thousands get to learn through the press of the disgusting details of crime.

[1]The writer remembers how, on one occasion, while he was a student of the law at the University of Gottingen, he was bidden to leave the criminal court, because the case about to be tried was one involving deep moral turpitude. This has now become a rather common practice in this country; especially in large cities like New York, in order to exclude minors and women, who are drawn thither by a prurient curiosity.