From today's opinion in U.S. v. Allen, written by Judge Sandra Ikuta and joined by Judge Lawrence VanDyke and Tenth Circuit Judge Carlos Lucero; seems generally right to me:
At the height of the coronavirus pandemic in 2020, the district court here prohibited members of the public from attending the defendant's suppression hearing and trial and rejected the defendant's request for video-streaming of the proceedings. This appeal raises the question whether the court's order violated the defendant's Sixth Amendment right to a public trial.
We conclude that the district court's order was not narrowly tailored, in part because courts throughout the country, facing the same need to balance public health issues against a defendant's public trial right, consistently developed COVID protocols that allowed some sort of visual access to trial proceedings. Accordingly, we conclude that the court's COVID protocols in this case violated the defendant's public trial right, and he is entitled to a new suppression hearing and trial….
The court's protocol for Allen's pretrial hearings and trial precluded members of the public from entering the courtroom, and gave them access to the proceedings only by streaming audio over the internet.
Allen objected to this protocol as violating his Sixth Amendment right to a public trial. At a hearing to consider this and other pretrial issues, Allen's counsel argued that while neither audio nor video streaming of the trial was equivalent to an in-person trial, Allen would accept video as "an adequate substitute" for public access because it "comes closer to recapturing that in-person experience more so than telephone."
According to counsel, "the ability to have the courtroom open is not simply to hear the witnesses but to see the witnesses, to see the jury, to see the defendant, to see the attorneys, see the court," as well as "to see the exhibits … and have as close to a re-creation of that ability to walk into the courthouse." By contrast, counsel asserted, telephone access was not an adequate substitute because "you miss all of that flavor." Counsel argued that this factual difference adds up to "a constitutional legal difference." …
The [district] court ruled that there was no basis "for concluding that there's a constitutional difference between audio and video." It then rejected the counsel's proposed alternative of video-streaming the trial. According to the court, it would be improper to live-stream the proceedings over the internet because the court would be unable to prevent viewers from recording the trial. And the court concluded that live-streaming the video to a different room in the courthouse would not meet the objectives of closing the courthouse and curbing the spread of COVID, because it would not limit the number of persons in the courthouse.
