6th Amendment Public Trial: From Communal Duty to Accused’s Right

The Constitution’s Bill of Rights contains many procedural protections for those the government accuses of having committed a crime.  Among them is the Sixth Amendment right to a “public trial”.  The provision is stated:

“In all criminal prosecutions, the accused shall enjoy the right to a… public trial”

The concept of a public trial is ancient, but it did not begin as a right belonging to a defendant in a criminal case.  While there are seeds of an accused’s right to a speedy trial in the Assize of Clarendon of 1166 and the Magna Carta of 1215 neither mention a public trial.  Prior to the 1791 ratification of the American Bill of Rights, the only historical provisions for a public trial were the 1776 constitutions of Pennsylvania and North Carolina.

The Public Trial Tradition

The tale of the public trial begins with William the Conqueror’s conquest of England in 1066, but its origins were unrelated to protecting a criminal defendant. To secure the loyalty of his new subjects William allowed their participation in dispensing justice. Early English justice was commonly carried out by the tribe or the community. A wrong against a community member was considered a wrong against the entire community.[1] The individual was tried and judged by communal law and custom.

While the 1166 Assize of Clarendon did not mention an accused’s right to a public trial, it did impose a duty on freemen to present criminal charges and attend trials.  This duty could be fulfilled by sending a servant or representative.[2] In those days, trials were typically held outdoors and as a result were “public”.

The beginnings of a public trial were thus related to bringing the public together to judge an accused, not to protect his rights. The development was more practical than philosophical. Over the next 600 years the practice evolved and became an accepted part of the “common law”.[3]

– See more at: http://www.shestokas.com/constitution-educational-series/sixth-amendments-public-trial-from-communal-duty-to-accuseds-right/#sthash.ihOp9qek.7xJkS5qA.dpuf

– See more at: The Sixth Amendment Right to a Public Trial




David Shestokas earned his B.A. in Political Science from Bradley University in 1975 and his Juris Doctor from The John Marshall Law School, cum laude, in June of 1987. In 1986-87 he served on The John Marshall Law Review. He studied law at Trinity College in Dublin, Ireland. Mr. Shestokas has been admitted to practice law before the Illinois Supreme Court in 1987, the United States District Court for the Northern District of Illinois in 1988, the Supreme Court of Florida in 2004, and the United States District Court for the Middle District of Florida in 2006. - More at: http://www.shestokas.com