Q & A: Lawyers as the Original Watchdogs

by John P. Messina

Is the right to a public trial an empty right unless a journalist is acting as a watchdog, regularly attending and reporting on the proceedings? Or is there a dynamic intrinsic to public proceedings that is absent from secret proceedings and operates independently of the presence or absence of the press? Finally, is access to judicial records essential to realizing fully the benefits of a public proceeding?

These questions triggered the research that is reported in The Lawyer as Court Reporter in a Virtual Courtroom: Lessons for the Internet Age from 600 Years of English Legal History (“Lessons Essay”), and Judicial Accountability in England and the United States. The questions I asked in the course of my research, along with the answers I found, are set out below.

Summary of Findings

Let me begin with a summary of my findings: First: The dynamic that produces the benefits associated with public trials is reputational risk. Courtroom behavior is governed by norms of truthfulness and civility. Witnesses, lawyers, and judges who deviate from these norms run the risk that word of their misbehavior will move beyond the courtroom and reach their family, friends, and peers. The risk that one’s reputation outside the courtroom might be diminished by reports of misbehavior in court creates an incentive for witnesses, lawyers, and judges to adhere to the norms of truthfulness and civility that govern the courtroom. See Answers to Questions 4- 5.

Second: The dynamic that creates the benefits of a public proceeding operates independently of the presence or absence of the press. Rather, the dynamic depends on an informal network of communications channels outside court. See Answers to

Questions 4, 9-14.

Third: In England, where judgments (and the reasons behind them) are rendered orally in the courtroom, where any egregious omission or misstatement is subject to immediate challenge, access to judicial records may be useful, but it is not essential to the dynamic that produces the benefits associated with public trials. In the United States, on the other hand, where judgments (and the reasons behind them) are drafted in the privacy of the judge’s chambers, the judge’s candor (or lack of it) cannot be reported to the legal community without public access to the underlying judicial records. See Answers to Questions 14-16.

Fourth: Before the advent of the printing press, lawyers were the original (and unwitting) watchdogs who enforced norms of civility and truthfulness. In order to keep up with developments in the law they created informal networks of lawyers and apprentices who regularly attended court as spectators, taking notes and disseminating reports to the legal community. See Answers to Questions 13-14; see also Lessons Essay, pp. 8-11.

Questions & Answers

Question 1: When was the right to a public trial established in the United States?

Answer: The right to a public trial in federal court was established in 1791, when the states ratified the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…."

Between 1791 and 1948 all but four of the 48 states had adopted statutory or constitutional provisions requiring that criminal trials be held in public. In 1948 the Supreme Court held that a public trial is essential to due process, and that, therefore, the Sixth Amendment guaranty of a public trial was binding on those four states. In re Oliver, 333 U.S. 257 (1948).

Question 2: Why did the United States establish a right to a public trial?

Answer: No one can say with certainty why the United States established a right to a public trial. Neither the source of that right, nor the reasons for recognizing it, were ever discussed during the Constitutional Convention or during the debates over the Bill of Rights. See discussion in Lessons Essay §II-A, p. 6.

Question 3: Did the right to a public trial derive from English common law, or was it based on unique American principles or insights?

Answer: According to the Supreme Court, the right to a public trial "has its roots in our English common law heritage." In re Oliver, 333 U.S. at 266.

Question 4: What are the perceived benefits of a public trial, as distinguished from a secret trial?

Answer: The perceived benefits of a public trial vs. a secret trial are based on the notion that people tend to be on their best behavior when they know they are being watched by persons whose opinions they value. Three of the most frequently quoted descriptions of these benefits are from Sir Matthew Hale, Sir William Blackstone, and Justice Hugo Black.

Hale expressed the earliest known comment on the truth-enhancing quality of public trials. In his History of the Common Law, written circa 1670 but published posthumously in 1713, Hale observed that in England, evidence is given “in the open court and in the presence of the parties, counsel, and all by-standers….and not

in private before a commissioner or two, and a couple of clerks; where oftentimes witnesses will deliver that which they will be ashamed to testify publicly." (emphasis added)

Similarly, in 1768 Blackstone, in his Commentaries on the Laws of England, described the effect that a public trial has on the truthfulness of witnesses,

2

declaring that a public trial “is much more conducive to the clearing up of truth” than a secret trial:

[O]pen examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law: where a witness may frequently depose that in private, which he will he ashamed to testify in a public and solemn tribunal.

In his opinion for the majority in Oliver, cited earlier, Justice Black spoke to the effect that a public trial has on the fairness of the trial judge, remarking that "[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." 333 U.S. at 270. (The particulars of the Oliver case are summarized in Lessons Essay, pp. 17-18.)

Question 5: What is the dynamic that encourages good behavior in public trials?

Answer: The dynamic that encourages good behavior in public trials is reputational

risk: Witnesses who fail to tell the truth, and judges who act arbitrarily or oppressively, run the risk that word of their misbehavior will reach the community outside the courtroom. Consequently, witnesses who value their reputations for integrity, and judges who value their reputations for fairness, have an incentive to behave properly in the course of proceedings open to the public.

Question 6: As of the dates when Hale and Blackstone uttered their observations about the benefits of a public trial, was there any scientific support for their observations or were their observations based on intuition?

Answer: There was no scientific evidence to support Hale's or Blackstone's observation at the time each was uttered.

The notion that an individual’s behavior is affected by the presence of others is one of the subjects studied by social psychologists, a discipline that did not emerge until the late 19th century, more than 100 years after Blackstone's observation and long after the right to a public trial had become a cornerstone of English and American law. Thus, insights from that discipline are not the reason why the right was created in the first place, nor were those insights available to Blackstone in 1768. Rather, Hale's and Blackstone's observations were intuitive insights sparked by their familiarity with England’s 500-plus years of experience with public trials.

Question 7: Was there any scientific support for Justice Black's observation when he published it in 1948?

Answer: None that he cited, and none that I have been able to find.

3

Question 8: Since 1948, has there been any scientific support for Hale's or Blackstone's or Black's observations?

Answer: The analytical tools available to social psychologists could be used to design studies that would confirm the intuitions that a witness is more likely to testify truthfully, and a judge is more likely to act judiciously, when the courtroom audience includes persons whose opinions are valued by the witness or the judge. I have found no such studies, however, though a Google search turned up dozens of studies on televised trials and the impact that a television camera has on the behavior of witnesses, lawyers, judges, and juries.

Question 9: Did the British press play any role in the events leading to the establishment of the right to a public trial?

Answer: No, the British press played no role in the events leading to the establishment of the right to a public trial by jury. While the origins of the public trial by jury are "obscure," Oliver, 333 U.S. at 266, there is a general consensus that the practice of holding trials in public evolved over time, starting in the 12th century reign of Henry II (1154-89), and that the practice was firmly established by 1468. See Lessons Essay §I-E, p.8n.10.

In other words, public trial by jury had become the norm: (a) at least eight years before William Caxton set up the first English printing press in Westminster; (b) decades before the earliest English "news papers" began to circulate in the 16th century; and (c) long before the first regular English daily newspaper, the Daily Courant, was launched in 1702.

Question 10: What historical events led to the English practice of holding trials in public?

Answer: Because the right to a public trial was a chance creation, one can only hypothesize about the events responsible for establishing it. My hypothesis is this: Public trials became the norm in the 12th through 15th centuries as a matter of necessity, and not because they were perceived to be superior to secret trials. I base this hypothesis on the following facts and premises:

1.In order for laws to be known and enforced, they must be proclaimed. See Lessons Essay §§II-B, p. 6.

2.Before the introduction of the printing press, there were only two methods for proclaiming the law in England--orally, or through manuscripts deposited in a few scattered locales, such as monasteries, the manors of large landowners, and Inns of Court.

3.As most of the populace was illiterate, proclaiming the law orally was the only effective means of proclaiming the law to most of the populace.

4.The medieval courts in England served a law-making function, as they were the source for the common law. Due to factors 1-3, above, holding court in

4

public was a more efficient way to proclaim the common law than holding court in secret and communicating the results through manuscripts. See Lessons Essay §§II-C, D.

Question 11: When did the English first recognize that there were intrinsic benefits to a public trial?

Answer: The historical record does not pinpoint a specific date on which the English recognized that public trials had truth-enhancing qualities that secret proceedings lacked. However, it is safe to infer that that the English had recognized the benefits of a public trial by 1670. This inference rests on the following facts and premises:

1.The common law courts operated in public at the same time as other institutions conducted their proceedings in secret, namely: the courts of the Spanish Inquisition (1478-1826); the French monarchy's administration of the lettres de cachet (13th-18th centuries); and the English Court of Star Chamber (1487-1641).

2.Through normal channels of commerce and communication the English learned about the abuses and excesses of these other institutions' secret proceedings.

3.In 1670 Matthew Hale uttered his oft-quoted observation about the superiority of public trials to those held in secret. See Answer to Question 4, above.

Question 12: When did the practice of holding a trial in public morph into a right deemed essential to due process?

Answer: Again, because the right to a public trial was an accident of history, it is impossible to pinpoint the precise moment when a public trial was deemed to be essential to due process. Nevertheless, if acts of Parliament are a reliable guide to public sentiment, one can safely say that the Habeas Corpus Act of 1640, which implicitly condemned secret proceedings by abolishing the Court of Star Chamber, marked an unambiguous embrace of the notion that a public trial is an essential element of due process.

Question 13: Prior to 1670, the date of Hale’s observation about the superiority of public trials to those held in secret, were there any regular spectators in the common law courts?

Answer: I have found no scholarly sources that describe the identity or demographics of courtroom spectators in the common law courts. However, circumstantial evidence suggests that from the 12th Century through at least the 18th Century, lawyers and their apprentices were regular spectators in the common law courts. This conclusion may be inferred from the following historical facts:

5

1.Before the introduction of the printing press in England (1476), the legal literature available to attorneys and other practitioners was quite limited. See Lessons Essay §§I-J, pp. 9-11. The only practical way for them to update their legal knowledge was by watching proceedings in court and taking notes, and by exchanging notes and consulting with colleagues who did the same. See Lessons Essay §II-G.

2.Unlike the situation on the Continent, where aspiring lawyers learned the law at universities, those who aspired to practice law in England received vocational training. Their training included attending court and watching judges and lawyers from a special enclosure, called "the crib," from which they could follow the proceedings. See Lessons Essay §II-H, pp.8-9.

Question 14: When English lawyers and their apprentices attended court as spectators, rather than as representatives of litigants, did their presence create a watchdog effect comparable to that created by the press’s presence in modern-day courts?

Answer: Yes. When English lawyers and apprentices attended court as spectators, they were the functional equivalents of journalists. That is, their purpose as spectators was to observe the proceedings and take notes that would later be shared with others in the legal community. See Lessons Essay §II-G.

Judges were keenly aware that they were being observed by their former peers at the bar and that any arbitrary or unpleasant behavior on their part might be mentioned in reports that circulated in the legal community. Consequently, judges who valued their reputations had an incentive to behave in a manner that would preserve their good name.

Question 15: Is there any pertinent difference in American legal process and English legal process?

Answer: Yes. The English legal system is steeped in an oral tradition in which "each step of the litigation process at both the trial and appellate levels [takes] place in open court,” including the judge’s announcement of the judgment in the case along with the reasoning behind the judgment. Ehrenberg, Embracing the Writing- Centered Legal Process, 89 Iowa L. Rev. 1159, 1167 (2004).

Due to a convergence of geographical and technological circumstances, the oral judgment that is a hallmark of the English tradition never gained a permanent footing in the United States. Since the 19th century, the American legal system has been “writing-centered.” See Judicial Accountability in England and the United States, pp. 3-4.

Question 16: What is the import of this difference?

Answer: The common law gives great weight to precedent. The fair and efficient operation of a system of precedents requires that a judge, in rendering judgment,

6

give a fair and honest statement of the case, i.e., a fair and honest summary of the pertinent procedural history and the pertinent evidence in the case.

In the English oral tradition, where judgment is rendered in open court in the presence of the litigants, their lawyers, a court reporter, and (perhaps) disinterested spectators, the judge has an incentive to provide a fair and honest statement of the case, since any egregious misstatement or omission is subject to immediate challenge.

In the writing-centered process that prevails in the United States, on the other hand, the judge renders judgment in the privacy of chambers, where there is no opportunity for the lawyers to challenge the accuracy of the judge’s statement of the case. The absence of such a constraint is problematic in the federal courts, since the prevailing view among federal judges is that “there is no recognized duty of candor in judicial opinion writing.” L. Epstein, et. al., The Behavior of Federal Judges: A Theoretical & Empirical Study of Rational Choice 58 (Harvard Univ. Press 2013). See also B. Cardozo, “Law and Literature” in Selected Writings 341 (defending the right of judges to deliberately misstate facts); compare Zagel and Winkler, The Independence of Judges, 46 Mercer L. Rev. 795, 818 (1995) (acknowledging “the rule that judicial opinions ought to be candid and accurate” but arguing that “the judges we most admire” often ignore the rule).

John P. Messina

October 29, 2014

7