Harvard Law Review Harvard Law Review Harvard Law Review

Criminal Law

The Criminal Court Audience in a Post-Trial World

Protecting public oversight of the criminal justice system

Legal scholars today criticize the lack of public participation in the criminal justice system as a barrier to democratic accountability, legitimacy, and fairness. When searching for solutions, these critiques bypass consideration of the audience members who attend criminal court each day — people who fill courtrooms to watch the cases in which their friends, family, and community members have been either victimized or accused of a crime. Overlooking these audience members is a mistake, for the constitutional function of the audience is one uniquely suited to help restore public participation and accountability in a world without juries.

The Constitution protects the democratic function of the local audience through both the Sixth Amendment right to a public trial and the First Amendment right of the public to attend criminal court. This Article argues that these rights apply with full force in the routine criminal courtroom, where arraignments, pleas, and sentencings, rather than trials, are taking place. Recognizing and enforcing the constitutional protection of the audience will require local criminal courts to grapple with widespread issues of public exclusion from the courtroom. Doing so has the potential to play a part in reinvigorating the lost connection of the public to the realities of routine criminal justice, linking a generally disempowered population to mechanisms of government accountability and social change.