IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0504-20
APRIL LOREACE WILLIAMS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS GUADALUPE COUNTY
SLAUGHTER, J., delivered the opinion of the Court in which RICHARDSON, YEARY, KEEL, and MCCLURE, JJ., joined. NEWELL, J., filed a concurring opinion in which KELLER, P.J., and HERVEY, J., joined. WALKER, J., filed a dissenting opinion.
OPINION
Does the temporary physical exclusion from a courtroom of a defendant’s family
member for the testimony of one witness at trial violate the Sixth Amendment right to a
public trial when the excluded individual was virtually included by permitting him to Williams - 2
observe the witness’s testimony via a live video feed from a neighboring courtroom? Under
the specific facts of this case, we hold that it does not. But, we caution that courts should
rarely exclude any member of the public from a courtroom during criminal case
proceedings. And before doing so, the court must consider the factors under Waller v.
Georgia, 467 U.S. 39 (1984), to ensure that any such exclusion is justified. Nevertheless,
under the narrow circumstances presented here, we conclude that the traditional Waller
factors are not dispositive because, even assuming that the trial court’s actions resulted in
a partial closure of the courtroom, any such closure was so trivial or de minimis that it did
not infringe on the values served by the Sixth Amendment. In so finding, we disagree with
the court of appeals’ conclusion that Appellant’s right to a public trial was violated.
Accordingly, we reverse the lower court’s judgment and remand the case to that court for
further proceedings.
I. Background
The Seguin Police Department organized a “controlled buy” of drugs wherein a
confidential informant, Josh Brown, 1 purchased crack cocaine from Appellant. Based on
her sale of drugs to Brown, Appellant was indicted for delivery of a controlled substance,
Penalty Group 1, in an amount of four grams or more but less than 200 grams. 2
1 When addressing pretrial matters prior to the commencement of voir dire, the State moved to use a pseudonym to refer to the confidential informant in this case. The defense objected. The prosecutor responded that the State did this “all the time in cases involving confidential informants” and that, contrary to defense counsel’s assertion, use of a pseudonym has no bearing on Appellant’s right of confrontation. The trial court ultimately granted the State’s motion. We will therefore continue to use the pseudonym adopted by the trial court here. 2 See TEX. HEALTH & SAFETY CODE § 481.112(d). Williams - 3
At Appellant’s jury trial, the State first called Detective Jaime Diaz as a witness.
Detective Diaz testified that on the day in question, he provided Brown with $180 in cash
and special sunglasses equipped with a hidden recording device. Diaz then dropped Brown
off near Brown’s house. Shortly thereafter, Diaz observed Appellant arrive at the house,
stay for five to ten minutes, and then leave. Brown returned to where Diaz was waiting in
his patrol car and gave Diaz a plastic bag with a white rock substance in it. Diaz field tested
the substance, which indicated the presence of cocaine. A subsequent lab test confirmed
the result.
Following Diaz’s testimony, the State planned to call Brown as a witness. But before
calling Brown, the State requested that a spectator, Appellant’s brother Jerry Williams, be
temporarily excluded from the courtroom during Brown’s testimony. The State contended
that it had “credible and reliable information” that Williams’s presence would intimidate
Brown, which would affect his testimony. The State also provided caselaw to the court
“supporting closing the courtroom because of the intimidation factor.” To minimize the
effects of the closure, the State offered to set up a live video feed in another room of the
courthouse so that Williams could watch Brown’s testimony in real time.
Defense counsel objected to the State’s request. Counsel asserted that the State had
failed to provide any evidence supporting its claim of witness intimidation and that the
State “has to provide specific facts to support that notion[.]” Defense counsel further
asserted that Williams’s removal would detract from the jury’s ability to assess Brown’s
credibility because one of the ways the jury evaluates credibility is by evaluating the
witness while he is “making his claims in open court subject to being observed by whoever Williams - 4
[sic] is in open court.” Thus, excluding Williams from the courtroom “would essentially
give [Brown] the ability to testify in a consequence-free environment,” thereby providing
him an “advantage over any other witness.” The State countered that only Appellant has a
right to confrontation, which is not infringed when a member of the public is excluded
from the courtroom. The prosecutor also indicated that, in her experience, confidential
informants are often threatened or victimized as a result of their testimony. 3 And, in
response to the assertion that the State failed to provide any evidence to support its
intimidation claim, the prosecutor reiterated that the witness was a confidential informant.
This statement suggested that the State could not (or would not) disclose any specific
information regarding its claim of intimidation. The prosecutor emphasized that the State
was “not saying that Jerry Williams cannot watch this person testify” and that it does not
“violat[e] open court if we let him watch by Skype from another courtroom.” 4
The trial court granted the State’s request and overruled Appellant’s objection. In
its oral findings made on the record, the trial court found that “the State’s interest outweighs
the defendant’s right [ ] to public scrutiny;” that the exclusion of Appellant’s brother was
3 Specifically, the prosecutor stated, “The only reason [Williams] would be sitting in this courtroom is to intimidate a confidential informant. I was the former drug and gang interdiction prosecutor, I have prosecuted capital murder cases where confidential informants were killed and/or intimidated during the course of their testimony and I think there’s zero reason behind— behind keeping him in the courtroom.” 4 At another point in the record preceding this discussion, the prosecutor asserted that Appellant’s brother was a drug dealer. Specifically, in the course of arguing that the defense should not be permitted to ask the detective about how many cases the CI had done previously, the prosecutor stated, “The problem, Your Honor, is . . . her brother is sitting in the courtroom. He’s also a drug dealer and so if we talk about how many cases this CI has done, the risk to his life increases exponentially. . . . There’s no reason to talk about how many buys he did for law enforcement.” However, the prosecutor did not offer any evidence or testimony showing that Appellant’s brother was a drug dealer. Williams - 5
“necessary to protect the confidential informant from intimidation that would traumatize
him or render him unable to testify;” and that the exclusion was only “temporary and only
for the testimony of the confidential informant[.]” The court further found that it was a
“reasonable alternative” for Williams to watch Brown’s testimony on a live video stream
from another room. After Williams left the courtroom, the State called Brown as a witness
and he was brought into the courtroom through a back door “for his safety.”
In his testimony before the jury, Brown stated that he had met Appellant through a
friend, the two were “[l]ike family,” and he loved her “like a sister.” He acknowledged that
he had purchased drugs from her on multiple occasions. On the date in question, Brown
called Appellant and asked her to come over to his house. Upon arrival, she pulled out a
white rock, broke it into pieces, and weighed out seven grams. Brown paid Appellant $180
for the substance and then she left. A video and audio recording of the entire transaction
captured by Brown’s recording device was also admitted into evidence.
After the close of evidence, the jury convicted Appellant of the charged offense, and
the trial court assessed her punishment at twenty years’ imprisonment.
On appeal, the Fourth Court of Appeals reversed Appellant’s conviction, holding
that her Sixth Amendment right to a public trial had been violated by her brother’s
temporary exclusion from the courtroom. Williams v. State, No. 04-18-00883-CR, 2020
WL 2543308, at *3 (Tex. App.—San Antonio, May 20, 2020) (not designated for
publication). The court first held that the trial court’s actions constituted a partial courtroom
closure, reasoning that “‘[t]he exclusion of even a single person from court proceedings
can violate a person’s Sixth Amendment right to a public trial.’” Id. at *2 (quoting Turner Williams - 6
v. State, 413 S.W.3d 442, 449 (Tex. App.—Fort Worth 2012, no pet.)). The court
proceeded to consider whether the closure was justified under the framework set forth in
Waller, 467 U.S. 39. Id. at *2-3. Recognizing that the fourth factor under Waller requires
the trial court to make findings adequate to support the closure, the court of appeals
determined that this requirement was not met here. Id. at *3. Ultimately it concluded that
the record “lack[ed] specific factual findings, or any other evidence, identifying how the
exclusion of [Appellant’s] family member from the courtroom serves the interest advanced
by the State of preventing intimidation of the confidential informant.” Id. Observing that
the violation of a defendant’s public-trial right is structural error that does not require a
showing of harm, the court of appeals reversed Appellant’s conviction and ordered a new
trial. Id.
The State filed a petition for discretionary review, which this Court granted on three
grounds to evaluate the court of appeals’ analysis of this issue. 5
II. Analysis
In its petition for discretionary review, the State raises two broad challenges to the
court of appeals’ analysis: First, it contends that the lower court erred by failing to
5 The State’s grounds for review are as follows:
1) The judge, on an at best, partially developed record, required one spectator to view one witness’s testimony contemporaneously from a neighboring room. Is this the sort of closure requiring reversal contemplated by the right to a public trial? 2) Did the Fourth Court of Appeals fail to adequately address petitioner’s argument that the courtroom was not closed as required by Rule 47.1 of the Texas Rules of Appellate Procedure? 3) Does the Fourth Court of Appeals’ opinion fail to provide proper guidance and risk creating confusion for other courts when it failed to make a clear distinction between full and partial courtroom closures and the standards applicable to each type of closure? Williams - 7
recognize that the physical exclusion of Appellant’s brother from the courtroom while still
permitting him to view the proceedings on a live video stream did not constitute a true
“closure” of the courtroom for Sixth Amendment purposes. Thus, absent a showing that
Appellant’s trial was actually closed to any member of the public, the State suggests that
her claim must fail on this basis. Alternatively, the State argues that, even assuming these
circumstances did constitute a closure of the courtroom, they still do not amount to a
reversible Sixth Amendment violation. The State notes that the traditional Waller test
applied by the court of appeals is appropriate when considering a complete courtroom
closure wherein the public is excluded entirely from a proceeding. But here, there was, at
best, only a partial closure. Appellant’s brother was the only person physically excluded,
and he was virtually included and able to view the proceedings in real time via the live
video feed. Thus, the State contends that these circumstances do not implicate the same
secrecy and fairness concerns as a complete courtroom closure. Instead, it suggests that
these circumstances call for a modified, less stringent Sixth Amendment analysis. Under
that less stringent standard, the State contends that Appellant’s Sixth Amendment right to
a public trial was not violated and that reversal of her conviction is not warranted.
Because we find the State’s second argument to be dispositive, we focus our
analysis on that issue and assume without deciding that the circumstances here constituted
a partial closure of the courtroom. With respect to the State’s second argument, given that
we have not previously considered whether a modified Sixth Amendment analysis should Williams - 8
apply in some situations involving a less-than-complete closure of the courtroom, 6 we look
to decisions from other jurisdictions to guide our analysis. Based on our review of the
caselaw, we find that a modified Sixth Amendment analysis should apply here. Thus, strict
application of the traditional Waller factors is unnecessary. But, we note that other
jurisdictions have adopted at least two approaches to examining partial or trivial closures
in this context. Which of the less-stringent analyses should apply here?
A. Standard of Review
The question of whether a defendant’s Sixth Amendment right to a public trial was
violated is a mixed question of law and fact that does not turn on credibility and demeanor.
Cameron v. State, 490 S.W.3d 57, 70 (Tex. Crim. App. 2016) (op. on reh’g). In conducting
this review, an appellate court must first defer to the trial court’s findings of fact that are
supported by the record. Id. The court must then resolve on a de novo basis: (1) “whether
a defendant met [her] burden to show [her] trial was closed to the public based on the
totality of the evidence, and then [(2)] the ultimate legal question of whether [her] public-
trial right was violated.” Id.
B. General Sixth Amendment Public-Trial Right Principles
6 In two previous decisions, we have recognized the existence of authority from other jurisdictions addressing this issue, but we have never before directly considered whether it would be appropriate to deviate from the traditional Waller test under some circumstances. See Cameron, 490 S.W.3d at 68 (noting that “[s]ome courts have applied a less stringent test for ‘partial’ or ‘trivial’ closures, where members of the public are temporarily excluded from the courtroom,” and citing federal precedent in support); Steadman v. State, 360 S.W.3d 499, 505 n.19 (Tex. Crim. App. 2012) (recognizing that “[s]ome courts, both state and federal, have held that the Sixth Amendment test laid down in Waller need be less stringent in the ‘partial’ closure context,” but declining to apply that standard because Steadman involved a complete courtroom closure) (citation and quotations omitted). Williams - 9
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” U.S.
CONST. amend. VI. This provision is applicable to the states through the Due Process
Clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273 (1948). 7 “A public
trial is a trial which is open to the general public at all times.” People v. Woodward, 841
P.2d 954, 956 (Cal. 1992). It is “one that is not secret; it is one that the public is free to
attend.” People v. Jones, 464 P.3d 735, 740 (Colo. 2020).
In examining the purposes underlying the Sixth Amendment right to a public trial,
the Supreme Court has explained that this right is “‘for the benefit of the accused; that the
public may see he is fairly dealt with and not unjustly condemned, and that the presence of
interested spectators may keep his triers keenly alive to a sense of their responsibility and
to the importance of their functions.’” Waller, 467 U.S. at 46 (quoting Gannett Co. v.
DePasquale, 443 U.S. 368, 380 (1979)). 8 Further, “[i]n addition to ensuring that [the] judge
and prosecutor carry out their duties responsibly, a public trial encourages witnesses to
come forward and discourages perjury.” Id. However, the right to an open trial is not
7 Further, Article I, § 10, of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a “speedy public trial.” TEX. CONST. art. I, § 10. This Court has observed that this language is “practically the same” as the language of the Sixth Amendment. Price v. State, 496 S.W.2d 103, 107 (Tex. Crim. App. 1973). In any event, the parties’ arguments in this case focus on the Sixth Amendment right to a public trial under the federal Constitution and do not claim that it differs from the right under the Texas Constitution. Similarly, the court of appeals addressed only the Sixth Amendment right. Therefore, we base our analysis on the Sixth Amendment and do not address the nearly identical provision in the Texas Constitution. 8 See also Gannett, 443 U.S. at 383 (“[T]here is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.”). Williams - 10
absolute and “may give way in certain cases to other rights or interests, such as the
defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of
sensitive information.” Id. at 45; see also Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim.
App. 2012) (“The right to a public trial is not absolute and may be outweighed by other
competing rights or interests, such as interests in security, preventing disclosure of non-
public information, or ensuring that a defendant receives a fair trial.”). “Such circumstances
will be rare,” and the “balance of interests must be struck with special care.” Waller, 467
U.S. at 45. Given the weighty interests at stake and the difficulty of assessing harm under
these circumstances, a violation of the right to a public trial is structural error not subject
to harmlessness review. Id. at 49; see also Lilly, 365 S.W.3d at 328 (recognizing that
violation of public-trial right is structural error).
In Waller, the Supreme Court addressed a situation involving a complete closure of
the courtroom to the public. Waller, 467 U.S. at 42. There, a seven-day hearing on a motion
to suppress evidence was closed to the public entirely. Id. The rationale for the closure was
that some of the evidence to be admitted at the hearing, wiretap evidence relating to a
gambling scheme, was confidential and might be tainted if heard by the public in open
court. Id. at 41-42. Ultimately, the wiretap communications comprised less than two-and-
a-half hours of the evidence presented during the seven-day suppression hearing. Id. at 42.
Thus, the question before the Supreme Court was whether the complete closure of the entire
seven-day hearing was justified based on the minimal amount of confidential evidence that
had been admitted. Id. at 43. In examining the Sixth Amendment question before it, the
Court generally observed that: Williams - 11
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
Id. at 44 (quoting Press Enterprise Co. v. Superior Ct., 464 U.S. 501, 510 (1984)). The
Court then articulated a four-factor analysis for determining whether a courtroom closure
violates a defendant’s Sixth Amendment public-trial right:
[(1)] the party seeking to close the [trial] must advance an overriding interest that is likely to be prejudiced, [(2)] the closure must be no broader than necessary to protect that interest, [(3)] the trial court must consider reasonable alternatives to closing the proceeding, and [(4)] it must make findings adequate to support the closure.
Id. at 48.
Applying those factors, the Court held that “the closure of the entire suppression
hearing plainly was unjustified.” Id. at 48. Specifically, although it recognized that privacy
concerns might justify closing portions of a suppression hearing to the public, it reasoned
that the State’s proffer “was not specific” enough to establish the claimed privacy interests
and how they might be infringed. Id. It further reasoned that the trial court’s findings were
too “broad and general” to justify closure of the entire hearing. Id. The Court also observed
that the trial court did not consider alternatives to complete closure such as closing only a
portion of the hearing. Id. Thus, it concluded that a Sixth Amendment violation had
occurred, and it ordered a new suppression hearing.
This Court has interpreted Waller as requiring a two-step test. Lilly, 365 S.W.3d at
329; Cameron, 490 S.W.3d at 68-69. In the first step, we determine whether a trial was, in
fact, closed to the public. Lilly, 365 S.W.3d at 329. The defendant bears the initial burden Williams - 12
under this first step to show that her trial was closed to the public; if she “fails to carry that
burden, the analysis is concluded.” Cameron, 490 S.W.3d at 69. If, on the other hand, the
defendant succeeds in making such a showing, then we proceed to the second step, which
asks us to determine whether the closure was proper under the four factors from Waller
described above. Id. at 68; see also Lilly, 365 S.W.3d at 329. In Lilly, we explained that the
trial court’s findings are the “linchpin” of this second step and “must be on the record and
specific.” Lilly, 365 S.W.3d at 329 (“Proper findings will identify the overriding interest
and how that interest would be prejudiced, why the closure was no broader than necessary
to protect that interest, and why no reasonable alternatives to closing the proceeding
existed.”).
C. Partial Versus Complete Courtroom Closures
As noted above, Waller addressed a complete courtroom closure wherein the public
was excluded entirely from the lengthy pretrial proceedings at issue there. However,
numerous other courts have recognized a lesser type of closure, termed a “partial closure,”
that occurs when a courtroom remains open to some members of the public but is closed
to others. See, e.g., United States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015) (“Nearly
all federal courts of appeals [ ] have distinguished between the total closure of proceedings
and situations in which a courtroom is only partially closed to certain spectators.”); Garcia
v. Bertsch, 470 F.3d 748, 752 (8th Cir. 2006) (“Many courts . . . have distinguished the
complete closure in Waller from partial closures.”). “Whether a closure is total or partial .
. . depends not on how long a trial is closed, but rather [on] who is excluded during the
period of time in question.” United States v. Thompson, 713 F.3d 388, 395 (8th Cir. 2013). Williams - 13
Thus, whereas “a total closure involves excluding all persons from the courtroom for some
period [ ] a partial closure involves excluding one or more, but not all, individuals for some
period.” Simmons, 797 F.3d at 413.
In examining the appropriate Sixth Amendment analysis that should apply in
situations of partial closure, courts have recognized that such closures do not implicate the
same secrecy and fairness concerns that accompany a complete closure of the courtroom.
Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992); see also United States v. Osborne, 68
F.3d 94, 98–99 (5th Cir. 1995) (stating that partial closure “does not raise the same
constitutional concerns as a total closure, because an audience remains to ensure the
fairness of the proceedings”). Thus, the “‘impact of [a partial] closure is not as great, and
not as deserving of such a rigorous level of constitutional scrutiny,’” as a total closure.
Simmons, 797 F.3d at 413 (quoting Judd v. Haley, 250 F.3d 1308, 1316 (11th Cir. 2001)).
Given this distinction, many courts have applied a modified version of the Waller test to
partial closures.
In the modified Waller test applicable to partial closures, courts replace the first
Waller factor, which ordinarily requires an “overriding interest” to support complete
closure of the courtroom, with a less stringent “substantial reason” or “substantial interest”
test. See id. at 414 (noting that in Sixth Circuit Court of Appeals, for situations involving
partial closure, a less stringent “substantial reason” test replaces the first Waller factor that
ordinarily requires an “overriding interest;” other three Waller factors remain the same);
Bucci v. United States, 662 F.3d 18, 23 (1st Cir. 2011) (explaining that First Circuit and
others require only a “substantial interest” rather than a “compelling” one in partial closure Williams - 14
cases); Osborne, 68 F.3d at 98-99 (noting that at least five other federal circuit courts “have
all found that Waller’s stringent standard does not apply to partial closures, and have
adopted a less demanding test requiring the party seeking the partial closure to show only
a ‘substantial reason’ for the closure,” and adopting that test in the Fifth Circuit). 9
Aside from modifying the first Waller factor by reducing the significance of the
asserted interest at stake, the remaining three Waller factors remain in full effect. Thus,
under this modified Waller test for partial closures, in addition to finding: (1) a “substantial
reason” for the closure that is likely to be prejudiced if no closure occurs, a court must still
ensure that: (2) the closure was no broader than necessary; (3) the trial court considered
reasonable alternatives to closure; and (4) the record contains factual findings adequate to
support the closure. Simmons, 797 F.3d at 414; see also Waller, 467 U.S. at 48. In applying
this modified Waller test, courts have reached a variety of holdings, many of which largely
hinge on the adequacy of the trial court’s findings and the facts in the record to support the
closure. Compare Simmons, 797 F.3d at 414-15 (concluding that Sixth Amendment was
violated where trial court excluded three co-defendants from courtroom during testimony
of witness to prevent intimidation; the record was insufficient to support closure because
the trial court “asked no questions at all” to verify prosecution’s claim of witness
9 A minority of jurisdictions have declined to apply a less rigorous “substantial reason” test for partial closures. See, e.g., People v. Jones, 750 N.E.2d 524, 529 (N.Y. 2001) (declining to apply less stringent standard for partial closures because Waller “already contemplates a balancing of competing interests”); Tinsley v. United States, 868 A.2d 867, 874 (D.C. 2005) (declining to apply “substantial reason” standard and stating, “[W]e are not persuaded that the distinction between a ‘substantial reason’ and an ‘overriding interest’ is a particularly meaningful one.”); State v. Mahkuk, 736 N.W.2d 675, 685 (Minn. 2007) (“Although some federal circuit courts of appeals apply a lesser ‘substantial reason’ test to review the constitutionality of partial closures, we have not applied different tests to complete versus partial closures.”). Williams - 15
intimidation and instead simply relied on prosecutor’s vague assertions), with Nieto v.
Sullivan, 879 F.2d 743, 753 (10th Cir. 1989) (holding that partial closure did not violate
Sixth Amendment where defendant’s relatives were excluded from the courtroom during
the complaining witness’s testimony; the trial judge had “a substantial reason for the
closure” in seeking to prevent witness intimidation, and the record supported that
determination because judge interviewed witness in camera and verified basis for his
fear). 10
D. Trivial or De Minimis Closures
In addition to the modified Waller test described above, many jurisdictions have
also adopted a distinct approach for situations involving closures deemed so “trivial” or de
minimis as to not implicate the Sixth Amendment public-trial right at all. See, e.g., Peterson
v. Williams, 85 F.3d 39, 40 (2d Cir. 1996) (“[E]ven an unjustified closure may, on its facts,
be so trivial as not to violate” the Sixth Amendment); People v. Lujan, 461 P.3d 494, 499
(Colo. 2020) (noting that “many jurisdictions have held that some closures are simply so
trivial that they do not rise to the level of a constitutional violation,” and adopting such
approach in Colorado). 11 In those situations, rather than focusing on whether a closure was
10 See also Thompson, 713 F.3d at 396 (applying modified Waller test for partial closures and holding that no Sixth Amendment violation resulted from exclusion of defendant’s family members during testimony of one witness at sentencing; “Considering the record before the district court, which laid out [the witness’s] expressed fear of testifying against [the defendant] . . . we find no abuse of discretion[.]”); Woods, 977 F.2d at 76-78 (applying modified Waller test and concluding that no Sixth Amendment violation resulted from exclusion of family members during testimony of one witness at trial; trial court had a substantial reason for excluding defendant’s family members during witness’s testimony where witness expressed that she was afraid to testify in front of them). 11 The Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and D.C. Circuits have endorsed this approach. See, e.g., United States v. Cervantes, 706 F.3d 603, 611–12 (5th Cir. 2013); United Williams - 16
justified, as the Waller test does, courts instead evaluate as a preliminary matter “whether
the actions of the court and the effect that they had on the conduct of the trial deprived the
defendant . . . of the protections conferred by the Sixth Amendment.” Peterson, 85 F.3d at
42; see also United States v. Perry, 479 F.3d 885, 890 (D.C. Cir. 2007) (“A courtroom
closing is ‘trivial’ if it does not implicate the ‘values served by the Sixth Amendment’ as
set forth in Waller.”).
To assess whether a closure was trivial, courts look to whether the circumstances
implicated the “values furthered by the public trial guarantee;” namely, “1) to ensure a fair
trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the
importance of their functions; 3) to encourage witnesses to come forward; and 4) to
discourage perjury.” Peterson, 85 F.3d at 43; see also Waller, 467 U.S. at 46-47. If the
closure did not jeopardize or subvert these values, then it is deemed too trivial to amount
to a Sixth Amendment violation, and further analysis under the Waller factors becomes
unnecessary. In evaluating triviality, courts should examine the totality of the
circumstances and consider factors such as “the duration of the closure, the substance of
the proceedings that occurred during the closure, whether the proceedings were later
memorialized in open court or placed on the record, whether the closure was intentional,
States v. Arellano-Garcia, 503 F. App’x 300, 305 (6th Cir. 2012); United States v. Greene, 431 F. App’x 191, 197 (3d Cir. 2011); United States v. Izac, 239 F. App’x 1, 4 (4th Cir. 2007); United States v. Perry, 479 F.3d 885, 890–91 (D.C. Cir. 2007); Carson v. Fischer, 421 F.3d 83, 92 (2d Cir. 2005); United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003); Braun v. Powell, 227 F.3d 908, 920 (7th Cir. 2000); United States v. Al-Smadi, 15 F.3d 153, 154–55 (10th Cir. 1994). Various state courts have also adopted this approach. See, e.g., State v. Smith, 876 N.W.2d 310, 329 (Minn. 2016); State v. Telles, 446 P.3d 1194 (N.M. Ct. App. 2019) (stating that there is a “uniform line of authority holding that a courtroom closure that is determined to be trivial does not meaningfully infringe upon the values protected by the right to a public trial”); State v. Turcotte, 239 A.3d 909 (N.H. 2020). Williams - 17
and whether the closure was total or partial.” Lujan, 461 P.3d at 498-99. Applying these
considerations, courts have frequently held that inadvertent or brief closures, or the
exclusion of a single spectator, are too trivial to implicate the Sixth Amendment. 12 On the
other hand, courts have held that closures are not trivial where they are less fleeting, are
longer in duration, or exclude individuals during a key witness’s testimony. 13 Ultimately,
the triviality assessment must be made under the totality of the circumstances, and no
bright-line rules apply. Moreover, the standard should be applied sparingly. See United
States v. Gupta, 699 F.3d 682, 688 (2d Cir. 2012) (emphasizing triviality doctrine’s
“narrow application”).
E. Applying the triviality doctrine here, there was no reversible Sixth Amendment violation because based on the specific facts, the presumptive closure did not implicate any of the values sought to be protected by the Sixth Amendment.
12 See, e.g., Carson, 421 F.3d at 85 (concluding that trial court’s exclusion of defendant’s ex- mother-in-law from a portion of the trial while failing to make particularized findings did not implicate the values underlying the Sixth Amendment); United States v. Ivester, 316 F.3d 955 (9th Cir. 2003) (holding that brief mid-trial closure to question jurors about safety concerns was trivial); Peterson, 85 F.3d at 44 (holding that where closure was “1) extremely short, 2) followed by a helpful summation [of the evidence], and 3) entirely inadvertent,” the closure was trivial and thus “the defendant’s Sixth Amendment rights were not breached”); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994) (concluding that closure, which was “brief and inadvertent,” “unnoticed by any of the trial participants,” and occurred only once, did not violate defendant’s public-trial rights); Perry, 479 F.3d at 890 (holding that intentional exclusion of defendant’s minor son for entirety of trial was trivial). 13 See, e.g., People v. Hassen, 351 P.3d 418, 422 (Colo. 2015) (finding that total closure of courtroom during two witnesses’ testimony was not trivial); United States v. Rivera, 682 F.3d 1223, 1230 (9th Cir. 2012) (holding that exclusion of defendant’s family members from sentencing hearing was not trivial); State v. Ndina, 761 N.W.2d 612 (Wis. 2009) (finding that exclusion of most of defendant’s family for three days of testimony not trivial); Gonzalez v. Quinones, 211 F.3d 735 (2d Cir. 2000) (holding that intentional closure during key witness’s testimony that lasted entire morning not trivial); Jones, 464 P.3d at 744 (finding that exclusion of defendant’s parents during testimony of two key witnesses spanning afternoon of trial was not trivial). Williams - 18
Considering the three analytical frameworks discussed above (the traditional Waller
“overriding interest” test, the modified “substantial reason” test for partial closures, or the
triviality doctrine), we conclude that the triviality doctrine is the appropriate framework
for resolving Appellant’s claim. That is because the exclusion here was: (1) solely the
physical exclusion of a single witness while allowing for his virtual inclusion via the live
stream from a neighboring courtroom; (2) for the testimony of only one witness which was
brief; and (3) for testimony which was supported by an audio and video recording that was
admitted into evidence.
As we have explained above, the core rationale underlying the triviality doctrine is
that some circumstances amount to such a trivial or de minimis closure that the values
sought to be protected by the Sixth Amendment are simply not implicated. See Peterson,
85 F.3d at 42; Perry, 479 F.3d at 890. The relevant values are: 1) ensuring that the
defendant receives 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. Peterson, 85 F.3d at 43; Waller, 467 U.S. at 46-47.
If none of these core values are meaningfully affected by the closure, it is unnecessary to
require extensive justification, record support, and factual findings to validate the trial
court’s actions under either the traditional or modified Waller tests. It would also be unjust
to reverse a conviction based on a deficiency in the record or findings to support closure
where no actual infringement of the defendant’s public-trial right has occurred. Thus, while
we recognize and reaffirm that Waller is the prevailing test for evaluating whether a Sixth
Amendment public-trial violation has occurred, it is not applicable in all circumstances. Williams - 19
On a case-by-case basis, it may be appropriate to conduct a preliminary inquiry into the
nature of the closure to determine whether it implicates Sixth Amendment values at all. For
reasons explained below, we conclude that to the extent there was a closure here, it was
trivial and it is therefore unnecessary to scrutinize the trial court’s actions under Waller.
1. Appellant received a fair trial.
With respect to the first value, ensuring a fair trial, while Appellant’s brother was
briefly physically excluded from the courtroom, he was virtually included by having the
ability to view the proceedings in real time from a nearby room. This fact neutralizes the
fairness and secrecy concerns that would otherwise arise when a spectator is excluded from
the courtroom. Indeed, this singular circumstance sets this case apart from the vast majority
of Sixth Amendment courtroom-closure cases cited above in which the excluded individual
had no opportunity to view the proceedings. Although we recognize that there may be an
infringement on the fairness of the proceedings where a defendant’s family member is
excluded during the testimony of even a single witness, we cannot say the same is true here
where Appellant’s brother was able to hear and view Brown’s testimony via the livestream.
Because Appellant’s brother was virtually included, he had the ability to
contemporaneously monitor the proceedings to ensure that Appellant was “fairly dealt with
and not unjustly condemned[.]” Waller, 467 U.S. at 46 (quoting Oliver, 333 U.S. at 270
n.25). 14
14 We note that one factor often cited by courts in evaluating the triviality of a closure is whether the proceedings were “later memorialized in open court or placed on the record.” Lujan, 461 P.3d at 499. By way of analogy here, the livestream provided the equivalent of a transcript in real time. Thus, the situation here is far less egregious than other situations in which an excluded individual has no opportunity to learn of the substance of the proceedings until long after the fact. Williams - 20
2. The trial participants were “keenly alive to a sense of their responsibility and to the importance of their functions,” because they knew that Appellant’s brother was in a nearby room watching Brown testify.
With respect to the second value, keeping the trial participants “keenly alive to a
sense of their responsibility and to the importance of their functions,” see id., we note that
the judge and attorneys were aware that Appellant’s brother was viewing the proceedings
remotely in a nearby room. Given this awareness, the mere physical absence of Appellant’s
brother from the courtroom did not negatively impact this goal when all the relevant parties
knew of the livestream arrangement.
3. There was nothing about the arrangement that would have discouraged witnesses from coming forward.
With respect to the third goal—encouraging witnesses to come forward—we note
that Appellant’s brother was not a witness to the drug transaction. Even if Appellant’s
brother had personal knowledge about any matters involved at trial, if he observed issues
with Brown’s testimony, he was fully capable of bringing such issues to the immediate
attention of defense counsel and offering to rebut Brown’s testimony with his own version
of events. There is nothing to suggest that any other witness was discouraged from coming
forward based on the livestream arrangement.
4. There is little to no risk that the physical absence of Appellant’s brother in the courtroom encouraged perjury.
The drug transaction at issue was recorded with video and audio. The video
evidence was played for the jury. Brown’s testimony mostly provided additional context
for what the jury observed in the video evidence. In fact, Brown’s testimony was brief,
spanning only fifteen pages of the reporter’s record. Thus, introduction of the video Williams - 21
evidence reduced the importance of Brown’s testimony overall. Further, Brown testified
in a fully open courtroom in the physical presence of Appellant and other spectators.
While it is unclear whether Brown knew Appellant’s brother was viewing the testimony
remotely, under the totality of the circumstances we cannot discern any marginal increase
in the risk of Brown perjuring himself on the basis of the livestream arrangement.
After analyzing the circumstances in light of the four triviality doctrine factors, we
find that there was no meaningful infringement on any Sixth Amendment values as a result
of the livestream arrangement. Therefore, there is no constitutional violation and further
analysis under Waller is unnecessary. See Zornes v. Bolin, 37 F.4th 1411, 1418 (8th Cir.
2022) (holding that situation where spectator was excluded from courtroom but permitted
to view proceedings remotely from observation room was too trivial to implicate Sixth
Amendment). 15 In reaching this holding, we emphasize that this approach constitutes an
exceedingly narrow exception to the broad applicability of Waller, which remains the
primary framework for analyzing courtroom closures under the Sixth Amendment. We
further reiterate that trial courts should consider the Waller factors before excluding anyone
from a courtroom.
F. Response to the Concurring and Dissenting Opinions
15 Specifically, in Zornes the Eighth Circuit Court of Appeals denied federal habeas relief under similar circumstances by upholding a determination of the Minnesota Supreme Court finding no Sixth Amendment violation under the triviality doctrine. Zornes, 37 F.4th at 1418. There, the trial court had intentionally excluded the victim’s brother from voir dire to prevent contact between him and prospective jurors, but the court permitted him to observe the proceedings remotely in a nearby room. Id. In finding that the Minnesota court had not engaged in an unreasonable application of federal law by rejecting a Sixth Amendment claim under these circumstances, the Eighth Circuit reasoned that the excluded individual “was able to observe jury selection from an observation area, and [the defendant] does not explain how that remote viewing by one spectator undermined the values furthered by the constitutional guarantee of a public trial.” Id. Williams - 22
In contrast to our approach above, it has been suggested by both the concurring and
dissenting opinions that we should reject the triviality doctrine and instead apply the Waller
test here. Specifically, the dissenting opinion urges that we should apply the traditional
Waller “overriding interest” test and hold that the trial court’s factual findings were
inadequate to justify the closure. The concurring opinion suggests that we should apply the
modified Waller “substantial reason” test and hold that the record is adequate to satisfy this
test. Although our reasons for disagreeing with these approaches are likely apparent from
our analysis above, we will briefly expand on our rationale here.
First, with respect to the suggestion by the dissenting opinion that we are bound to
strictly adhere to the Waller “overriding interest” test here, we disagree. As we have already
noted above, the Supreme Court in Waller addressed a complete closure of a seven-day
suppression hearing. Because of this distinction, numerous courts, including the Fifth
Circuit, have concluded that Waller does not apply with full force outside the context of a
complete closure. See, e.g., Osborne, 68 F.3d at 98-99 (noting that the Fifth Circuit along
with several other federal circuit courts “have all found that Waller’s stringent standard
does not apply to partial closures, and have adopted a less demanding test.”); Garcia, 470
F.3d at 752 (“Many courts, including this one, have distinguished the complete closure in
Waller from partial closures.”). The dissent provides no persuasive explanation for why it
disagrees with the majority of jurisdictions that have departed from Waller under these
circumstances. Further, the Supreme Court has never directly addressed what standard
should apply when a single spectator is excluded from the courtroom, let alone considered
a situation wherein the physically excluded individual was virtually included through a Williams - 23
livestream arrangement. Nor has it ever rejected the triviality doctrine, which has been in
existence for more than twenty years. In short, we are unpersuaded by the dissent’s position
that we are bound to adhere to the “strict” dictates of Waller under these clearly
distinguishable circumstances. Indeed, the dissent scarcely affords any weight to the fact
that Appellant’s brother was virtually included, and instead seeks to align this case with
the more typical courtroom-closure cases in which a person is completely excluded from
the proceedings with no immediate recourse and no ability to know what is transpiring
behind closed doors. See diss. op., at 8-9 (discussing Steadman, 360 S.W.3d at 500).
The dissent also dismisses the triviality doctrine, in part, by reasoning that it is
nothing more than a harm analysis, which is inapplicable in the context of a Sixth
Amendment public-trial claim. But this observation reflects a misunderstanding of how a
triviality analysis should function. As the Second Circuit Court of Appeals explained in
Peterson:
A triviality standard, properly understood, does not dismiss a defendant’s claim on the grounds that the defendant was guilty anyway or that he did not suffer “prejudice” or “specific injury.” It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant—whether otherwise innocent or guilty—of the protections conferred by the Sixth Amendment.
85 F.3d at 42. Thus, the triviality doctrine is a preliminary inquiry that focuses solely on
the nature of the trial court’s actions and whether they in any way jeopardized the values
underlying the public-trial right. If as here, no such values were jeopardized, then no
constitutional violation has occurred. When there is no constitutional violation, then there
is no need for a harmless error analysis, because there is no error. It is also not appropriate Williams - 24
to proceed to the second step of Waller, which focuses on whether the trial court’s actions
in infringing upon Sixth Amendment values were justified, when no such infringement has
occurred in the first place.
Turning to the concurrence, it similarly suggests that we should apply Waller here,
but it would adopt the modified “substantial reason” test in lieu of the more traditional test
urged by the dissent. Nevertheless, like the dissent, the concurrence affords almost no
analytical significance to the defining feature of this case—that the livestream arrangement
permitted Appellant’s brother to actually view the proceedings in real time. In support of
its position, the concurrence cites two cases and says they are “directly analogous” to this
case—Tinsley v. United States, 868 A.2d 867, 876 (D.C. Cir. 2005), and State v. Mahkuk,
736 N.W.2d 675, 685 (Minn. 2007). While both cases involved the physical exclusion of a
defendant’s family member from the courtroom, that is where the similarity to this case
ends. Neither case involved a situation where the physically-excluded individual was
virtually included and was permitted to observe the proceedings remotely in real time. The
concurrence wholly fails to account for the significance of the brother’s virtual inclusion.
Indeed, it does not cite a single case applying Waller under such similar circumstances.
The concurrence also suggests that we have misconstrued the authority applying the
triviality doctrine. That is incorrect. While the doctrine was originally devised in the
context of an inadvertent closure, see Peterson, 85 F. 3d at 40, the doctrine has expanded
in scope to include even a narrow class of intentional closures. The inadvertence of a
closure is but one factor to consider amongst the totality of the circumstances in evaluating Williams - 25
whether a closure is trivial. 16 Further, as we have already stated, while there are no bright-
line rules in this context, the triviality doctrine should be employed only in narrow
circumstances. To the extent the concurrence believes that our holding means that all
partial closures are trivial, thereby allowing courts to routinely bypass the Waller
requirement of an overriding or substantial interest, that is not our holding. On the contrary,
we can envision that the vast majority of partial closures will not be trivial and will require
full analysis under Waller. It is only unusual situations, such as this one, that may fall under
the triviality framework.
Finally, though we do not engage in our own analysis under Waller here for obvious
reasons, we find it necessary to point out the ways in which the concurrence’s proposed
approach may actually undermine the public-trial right in practice. The concurrence
suggests that the conviction in this case should be upheld even though the State made a
“paltry” showing that permitting Appellant’s brother to remain in the courtroom would
have prejudiced a substantial interest. 17 In essence, the concurrence appears to
16 See, e.g., Lujan, 461 P.3d at 498-99. 17 The State’s identified interest here was preventing witness intimidation, which has routinely been identified as both an overriding and substantial interest that can support a partial closure. See, e.g., Simmons, 797 F.3d at 414 (noting that courts “consistently hold that ensuring witness safety and preventing intimidation constitutes a substantial reason to justify the partial closure of the courtroom); Tinsley, 868 A.2d at 875 (recognizing that “protection of witnesses and avoidance of intimidation [are] overriding interests that may justify the closure of a criminal proceeding”). Here, were we to undertake a full Waller analysis, we would be inclined to agree with the dissent’s view that, given the lack of facts in the record beyond the prosecutor’s bare assertions alleging witness intimidation, the State failed to demonstrate how this interest would have been prejudiced by allowing Appellant’s brother to remain in the courtroom. See, e.g., Mahkuk, 736 N.W.2d at 685 (applying Waller and holding that record and findings were inadequate to establish claim of witness intimidation; prosecutor’s general assertion that witness was intimidated by defendant’s family members was inadequate to justify closure because “there is no evidence from any witness asserting that a witness had been intimidated or threatened,” and the “prosecutor’s assertions [ ] are not evidence”). While we recognize that the circumstances suggested that the relationship Williams - 26
acknowledge, without expressly saying so, that the equities in this case do not weigh in
favor of reversing the conviction (presumably because it believes there was no actual
unfairness or unreasonableness inherent in the trial court’s actions). So, to avoid a windfall
to the defendant, it implicitly proposes watering down Waller’s requirement of specific
findings and record support for the closure to hold that these facts are adequate to meet the
modified Waller test. Our concern with this approach is that, in future cases involving non-
trivial closures where the values underlying the Sixth Amendment are actually implicated,
courts may interpret the concurrence’s approach as relaxing Waller’s requirement of
specific, on-the-record findings. See Lilly, 365 S.W.3d at 329 (explaining that trial court’s
findings are the “linchpin” of Waller’s second step and “must be on the record and
specific”). We decline to adopt such an approach that may ultimately impede the proper
application of Waller to legitimate Sixth Amendment claims. Contrary to the concurrence’s
suggestion, the triviality standard is precisely well-suited for these circumstances where
the nature of the closure itself is too minimal to justify finding a Sixth Amendment
violation, but the record is arguably inadequate to satisfy the strict requirements of Waller.
In short, we will not elevate form over function here and water down the essential
requirements of Waller to accomplish the correct outcome.
III. Conclusion
In sum, under the totality of the circumstances presented here, and assuming that a
partial closure of the courtroom occurred, we conclude that such closure, if any, was de
between the witness and Appellant’s family and the witness’s status as a CI might lead to such intimidation, there were no other facts directly supporting the State’s claim of intimidation, and the trial court made only conclusory findings in this regard. Williams - 27
mimimis or trivial and did not undermine the values furthered by the public-trial guarantee.
Specifically, because the exclusion involved only a single individual during the testimony
of one witness; the physically-excluded individual was virtually included and at all times
able to view the testimony remotely; and the record does not reveal or even suggest any
detrimental effects on the values served by the Sixth Amendment as a result of this
arrangement, we conclude that no constitutional violation occurred. In reaching this
holding, we emphasize that this approach should be sparingly employed in Sixth
Amendment cases only under the narrowest of circumstances. Thus, in the vast majority of
cases, Waller remains the appropriate inquiry, and trial courts should continue to apply the
Waller factors with rigor before considering any closure of a courtroom. Because our
approach requires consideration of the totality of the circumstances to determine whether
a partial closure is trivial, it would be inappropriate for us to provide additional guidance
in the absence of specific facts. Thus, we leave to courts hearing future cases with different
facts the task of drawing the outer boundaries of what may constitute a trivial closure.
Ultimately, given the particular facts presented here, we conclude that Appellant’s
constitutional rights were not infringed upon. Therefore, we reject the court of appeals’
conclusion finding that these facts amounted to a Sixth Amendment violation and reverse
its judgment. Because the lower court did not address all the issues raised by Appellant on
appeal, we remand this case to the court of appeals for further proceedings.
DELIVERED: September 28, 2022 PUBLISH