2008 edition - Fort Sam Houston - U.S. Army

emains. Trial may not proceed with less than a quorum present
in any event. This subsection provides a means to proceed with a
case in the rare circumstance in which a court-martial is reduced
below a quorum after trial on the merits has begun and a mistrial
is inappropriate.
Rule 806 Public trial
I n t r o d u c t i o n . T h i s r u l e r e c o g n i z e s a n d c o d i f i e s t h e b a s i c
principle that, with limited exceptions, court-martial proceedings
will be open to the public. The thrust of the rule is similar to
paragraph 53 e of MCM, 1969 (Rev.), but the right to a public
trial is more clearly expressed, and exceptions to it are more
specifically and more narrowly drawn. This construction is necessary
in light of recent decisions, particularly United States v.
Grunden, 2 M.J. 116 (C.M.A. 1977).
( a ) I n g e n e r a l . T h i s s u b s e c t i o n r e f l e c t s t h e h o l d i n g i n U n i t e d
States v. Grunden, supra, that the accused has a right to a public
t r i a l u n d e r t h e S i x t h A m e n d m e n t . S e e a l s o U n i t e d S t a t e s v .
Brown, 7 U.S.C.M.A. 251, 22 C.M.R. 41 (1956); United States v.
Zimmerman, 19 C.M.R. 806 (A.F.B.R. 1955).
Although the Sixth Amendment right to a public trial is personal
to the accused (see Gannett Co., Inc. v. DePasquale, 443
U.S. 368 (1979)), the public has a right under the First Amendment
to attend criminal trials. Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980). The applicability of these cases to
courts-martial is not certain (cf. Greer v. Spock, 424 U.S. 828
(1976); In re Oliver, 333 U.S. 257, 26 n. 12 (1948); but see
United States v. Czarnecki, 10 M.J. 570 (A.F.C.M.R. 1980) (dicta)),
especially in view of the practical differences between civili
a n c o u r t s a n d c o u r t s - m a r t i a l ( i . e . , c o u r t s - m a r t i a l d o n o t
necessarily sit at a permanent or fixed site; they may sit overseas
or at sea; and at remote or dangerous locations). Nevertheless the
rule and the discussion are based on recognition of the value to
the public of normally having courts-martial open to the public.
This is particularly true since the public includes members of the
military community.
(b) Control of spectators. Neither the accused nor the public has
an absolute right to a public trial. This subsection recognizes the
power of a military judge to regulate attendance at courts-martial
to strike a balance between the requirement for a public trial and
other important interests.
As the discussion notes, the right to public trial may be violated
by less than total exclusion of the public. See United States
v. Brown, supra. Whether exclusion of a segment of the public is
proper depends on a number of factors including the breadth of
the exclusion, the reasons for it, and the interest of the accused,
as well as the spectators involved, in the presence of the excluded
individuals. See United States ex rel. Latimore v. Sielaff, 561 F.2d
691 (7th Cir. 1977), cert, denied, 434 U.S. 1076 (1978); United
States ex rel. Lloyd v. Vincent, 520 F.2d 1272 (2d Cir.), cert.
denied, 423 U.S. 937 (1975). See also Stamicarbon v. American
Cyanamid Co., 506 F.2d 532 (2d Cir. 1974).
The third paragraph in the discussion of Rule 805(b) is based
on United States v. Grunden, supra.
Judicial authority to regulate access to the courtroom to prevent
overcrowding or other disturbances is clearly established and does
not conflict with the right to a public trial. See Richmond Newspapers,
Inc. v. Virginia, supra at 581 n. 18. Cf. Illinois v. Allen,
397 U.S. 337 (1970). In addition, there is substantial authority to
ANALYSIS
App. 21, R.C.M. 806(c)
support the example in the discussion concerning restricting access
to protect certain witnesses. See, e.g., United States v. Eisner,
533 F.2d 987 (6th Cir.), cert. denied, 429 U.S. 919 (1976)
(proper to exclude all spectators except press to avoid embarrassment
of extremely timid witness); United States ex rel. Orlando v.
Fay, 350 F.2d 967 (2d Cir. 1965), cert. denied, 384 U.S. 1008
(1966) (proper to exclude all spectators except press and bar to
avoid intimidation of witnesses); United States ex rel. Latimore v.
Sielaff, supra (proper to exclude all spectators except press, clergy,
and others with specific interest in presence during testimony
of alleged rape victim); United States ex rel. Lloyd v. Vincent,
supra (proper to exclude spectators in order to preserve confidentiality
of undercover agents’ identity). See also Gannett Co., Inc.
v. DePasquale, supra at 401–500 (Powell J., concurring); United
States v. Brown, supra; United States v. Kobli, 172 F.2d 919 (3rd
Cir. 1949).
Subsection (b) authorizes closure of court-martial proceedings
over the accused’s objection only when otherwise authorized in
t h i s M a n u a l . E f f e c t i v e l y , t h i s m e a n s t h a t t h e o n l y t i m e t r i a l
proceedings may be closed without the consent of the accused is
when classified information is to be introduced. See Mil. R. Evid.
505(j). Article 39(a) sessions may also be closed under Mil. R.
Evid. 505(i); 506(i); and 412(c). Some federal cases seem to
suggest that criminal proceedings may be closed for other purposes.
See, e.g., United States ex rel. Lloyd v. Vincent, supra.
Selective exclusion of certain individuals or groups for good
cause, under the first clause of this subsection, is a more appropriate
and less constitutionally questionable method for dealing
with the problems treated in such cases.
Court-martial proceedings may be closed when the accused
does not object. As noted in the discussion, however, such closure
should not automatically be granted merely because the defense
requests or acquiesces in it. See Richmond Newspapers, Inc., v.
Virginia, supra. See also Gannett Co., Inc. v. DePasquale, supra.
With respect to methods of dealing with the effect of publicity
on criminal trials, as treated in the discussion, see Nebraska Press
Association v. Stuart, 427 U.S. 539 (1976); Sheppard v. Maxwell,
384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963);
Irvin v. Dowd, 366 U.S. 717 (1961); United States v. Calley, 46
C.M.R. 1131 (A.C.M.R.), aff’d, 22 U.S.C.M.A. 534, 48 C.M.R.
19 (1973); Caley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert.
denied, 425 U.S. 911 (1976). See also ABA Standards, Fair Trial
and Free Press part III (1972).
2004 Amendment: Subsection (b) was divided to separate the
provisions addressing control of spectators and closure and to
clarify that exclusion of specific individuals is not a closure. The
rules for control of spectators now in subsection (b)(1) were
amended to require the military judge to articulate certain findings
on the record prior to excluding specific spectators. See
United States v. Short, 41 M.J. 42 (1994). The rules on closure
now in subsection (b)(2) and the Discussion were amended in
light of military case law that has applied the Supreme Court’s
constitutional test for closure to courts-martial. See ABC, Inc. v.
Powell, 47 M.J. 363 (1997); United States v. Hershey, 20 M.J.
4 3 3 ( C . M . A . 1 9 8 5 ) ; U n i t e d S t a t e s v . G r u n d e n , 2 M . J . 1 1 6
(C.M.A. 1977).
(c) Photography and broadcasting prohibited. This subsection is
based on Fed. R. Crim. P. 53, and is consistent with paragraph 53
e of MCM, 1969 (Rev.) and practice thereunder. See C. Wright,
A21-47