right of the accused is no less protective of a public trial
than the implicit First Amendment right of the press and
public.”). Before a trial court may close a courtroom, four
conditions must be satisfied: (1) the party seeking closure
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. See R. 1:2-1 - “All trials, hearings of
motions and other applications, pretrial conferences,
arraignments, sentencing conferences (except with
members of the probation department) and appeals shall
be conducted in open court unless otherwise provided by
rule or statute”.
In State v. Williams, 93 N.J. 39, 59 (1983), the Court
held that the State Constitution provides the public and
press “a protectible right to be present during the
conduct of criminal pretrial proceedings and, further,
that these rights as recognized under the State
Constitution are fully consistent with those that are
found under and protected by the First Amendment.”
The Court concluded that the public and media must
have access to pretrial proceedings except in those cases
“in which the trial court is clearly satisfied that as a result
of adverse pretrial publicity, a realistic likelihood exists
that a defendant will be unable to secure a fair trial before
an impartial jury if the pretrial proceeding is conducted
in open court.” Defendant has the burden to establish by
a preponderance of the evidence that open proceedings
will threaten his right to a fair trial. The Court also noted
that the press has a right to be heard. Finally, in making
the determination as to closure, the trial judge must
consider the availability and efficacy of other protective
techniques such as change of venue, use of a foreign jury
and careful voir dire of prospective jurors. See State v.
Marshall, 199 N.J. Super 502, 508 (App. Div. 1985);
State v. Halsey, 218 N.J. Super. 149 (Law Div. 1987). See
also State v. Sugar (II), 100 N.J. 214, 243 (1985) (the
prosecutor also has the right to move for closure); New
Jersey Div. of Youth and Family Services v. J.B.. 120 N.J.
112, 127 (1990) (“the court must balance the public’s
right of access to judicial proceedings against the State’s
interest in protecting children from the possible
detrimental effects.”).
B. Control of Attorneys’ Misconduct at Trial (See also, CONTEMPT, this Digest)
The trial judge has responsibility to ensure that
defendant receives a fair trial. Nevertheless, the judge also
has responsibility to see that a trial is conducted in an
orderly and expeditious fashion. State v. Laws, 50 N.J.
159, 181 (1967), mod. o.g. 51 N.J. 494 (1968), cert.
denied, 393 U.S. 971 (1978); State v. Guido, 40 N.J. 191,
208 (1963).The trial court has the right to admonish counsel for
arguing after an objection has been overruled and for
directing comments to the prosecutor rather than to the
court. So long as the trial judge’s comments do not
constitute unfair criticism nor disclose an intent to
humiliate counsel, no error is committed. State v. Knight,
63 N.J. 187, 192 (1973). Nevertheless, when a trial
court is dissatisfied with the conduct of an attorney
during the course of a criminal trial, any reprimands
should ordinarily be made outside the presence of the
jury. State v. Rowe, 57 N.J. 293, 303 (1970).C. Handling Disruptive Defendants
A trial judge has broad discretion in imposing
restraints on disruptive or potentially disruptive
defendants. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057
(1970); State v. Morton, 155 N.J. 383, 434 (1997). See
also Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340
(1986) (deployment of security officers in courtroom did
not violate defendant’s rights); State v. Martini, 131 N.J.
176, 235 (1993); State v. Rose, 112 N.J. 454, 543
(1988).Although the Sixth Amendment guarantees a
defendant the right to confront any witnesses against
him, defendant waives that right if he continues to
disrupt the proceedings after a warning from the trial
judge. Illinois v. Allen, supra. Moreover, defendant’s
“right of self-representation is not a license to abuse the
dignity of the courtroom.” Faretta v. California, 422 U.S.
806, 836 n.46, 95 S.Ct. 2525, 2541 n.46. (1975).In State v. Wiggins, 158 N.J. Super. 27 (App. Div.
1978), the Appellate Division found that when a trial
judge is faced with an uncooperative and obstructive
defendant who rejects assigned counsel and refuses to
represent himself, the judge should order counsel to
participate once it is clear that defendant is not going to
conduct his own defense. Id. at 31. The court noted that
“[t]he right of the trial judge to control the proceeding
and insure a trial of a defendant which comports with due
process concepts is not at odds with the right of self-
representation....” Id. at 32-33.In State v. Mance, 300 N.J. Super. 37, 50-51 (App.
Div. 1997), a seven-defendant case involving attacks on