Excluding the Public From Jury Selection (Part 2)

Generally, a constitutional error that did not contribute to the verdict obtained is deemed harmless, which means the defendant is not entitled to reversal. However, a structural error, which affects the framework within which the trial proceeds defies harmless error analysis. Thus, when a structural error is objected to and then raised on direct review, the defendant is entitled to relief without any inquiry into harm.

There appear to be at least three broad rationales for finding an error to be structural. One is when the right at issue does not protect the defendant from erroneous conviction but instead protects some other interest—like the defendant’s right to conduct his own defense—where harm is irrelevant to the basis underlying the right. Another is when the error’s effects are simply too hard to measure—e.g., when a defendant is denied the right to select his or her own attorney—making it almost impossible for the government to show that the error was “harmless beyond a reasonable doubt.” Finally, some errors always result in fundamental unfairness, e.g., when an indigent defendant is denied an attorney. For purposes of this case, a critical point is that an error can count as structural even if it does not lead to fundamental unfairness in every case.

While a public-trial violation counts as structural error, it does not always lead to fundamental unfairness. This Court’s opinions teach that courtroom closure is to be avoided, but that there are some circumstances when it is justified.

Although principles of federalism mandate that defendants can derive greater protections from their state constitutions, there is no mandate for state constitutions to provide greater rights than the federal constitution. The New Jersey Supreme Court has a history of interpreting our state constitution to provide greater protections than the federal constitution dating back at least as far as 1975. However, the current Governor has appointed a pro-prosecution majority to our state’s highest court. United States Supreme Court cases thus take on a greater significance because the New Jersey Supreme Court is unlikely to decide the issues any differently under our state constitution.