Petitioner
Guy Waller
Respondent
State of Georgia
Petitioner's Claim
That the state's closure of a hearing to the public constituted a violation of the right to a public trial guaranteed under the Sixth and Fourteenth Amendments.
Chief Lawyer for Petitioner
Herbert Shafer
Chief Lawyer for Respondent
Mary Beth Westmoreland, Assistant Attorney General of Georgia
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Sandra Day O'Connor, Lewis F. Powell, Jr. (writing for the Court), William H. Rehnquist, John Paul Stevens, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
21 May 1984
Decision
That the conditions of the hearing closure failed justification under a set of tests developed in Press-Enterprise Co. v. Superior Court of California (1984); and that the closure would not withstand Sixth Amendment scrutiny.
Significance
On one level, Waller v. Georgia involved Sixth Amendment issues. However, as Justice Powell stated in the unanimous opinion, the Court had "not recently" considered a Sixth Amendment case, and instead it turned to recent rulings with regard to reporting of trial proceedings--a concern more properly addressed under the First Amendment. Waller thus further established and solidified the tests developed by the Court earlier in the 1984 term, in its Press-Enterprise Co. v. Superior Court of California decision. The latter defined the limits of the government's power to suppress trial proceedings on the one hand, and of the public's right to know on the other. Both cases belonged to a larger trend in the 1980s toward allowing the public as muchknowledge of trial proceedings as was constitutionally possible.
Seven Days' Suppression for Two-and-a-Half Hours of Evidence
In the latter half of 1981, Georgia police began tapping the phones of individuals they suspected of involvement in an illegal lottery operation. This waslong before that state had a legal, state-run lottery, and the particular scheme operated by the individuals in this case involved gambling on the volumeof stocks and bonds traded on the New York Stock Exchange. In early Januaryof 1982, state law enforcement officials executed search warrants simultaneously at a number of locations, including the homes of the individuals who would become the petitioners in Waller v. Georgia. Along with 35 others, these individuals were indicted and charged under the Georgia Racketeer Influenced and Corrupt Organizations (Georgia RICO) Act of 1982, as well as under Georgia statutes regarding illegal gambling.
Before the trial, the petitioners, who were set to be tried separately in a series of cases that involved 13 other defendants, moved to suppress the police wiretaps and other evidence seized during the searches. The reason for thiswas that the warrants authorizing the wiretaps were not supported by probable cause, normally required by police to conduct such surveillance, and were based instead on vague and overly general information. Furthermore, the petitioners held that these taps were not conducted under appropriate supervision,and that the searches following them were indiscriminate, as well as "exploratory and general." The state of Georgia then moved to close the hearing on the motion to suppress, meaning that the public would not be able to witness the proceedings. In its closure motion, the state held that in order to justifyits seizure of evidence derived from the wiretaps, it would have to introduce evidence which could infringe on the privacy of individuals other than thedefendants.
The state made its reasoning more clear when on 21 June 1982, the court--having impaneled and then excused a jury--heard the closure and suppression motions. Under the Georgia wiretap statute, the state's attorney argued any use ofinformation that was not "necessary and essential" would constitute inadmissible evidence. More specifically, the wiretaps would "involve" individuals already indicted but not on trial at that point, as well as others who had notbeen indicted at all. The state's purpose was not to protect the indicted individuals' right to a fair trial, or the unindicted persons' right to privacy;rather, Georgia's prosecutor noted that the presentation of these wiretaps in open court would cause the evidence to be "tainted," and thus unavailable for use in future prosecution cases. The trial court agreed and, over objection from the petitioners, ordered the suppression hearing closed to persons other than the parties involved, the lawyers, court personnel, and witnesses.
The hearings that followed lasted seven days, but less than two-and-a-half hours of that time was devoted to playing the tapes of intercepted phone conversations. As it turned out, the voices recorded on the tapes included those ofsome who were not then on trial, but had been indicted. Though a single unindicted individual was mentioned by the others in one phone call, there was noone not currently under indictment. Throughout the remainder of the trial, the court's attention was directed to an examination of the procedures used toobtain and execute the search warrants and wiretap authorizations, as well as those used in preserving the tape recordings, and to the petitioners' allegations of misconduct on the part of police and prosecutors. All of these proceedings could, therefore, have been attended by the public without impingingon the matter addressed with regard to the tapes and the various indicted andunindicted individuals included on them. The court having agreed with the state's admission that ten boxes of papers it had seized during the searches were personal in nature, and unrelated to the crime in question, it ordered them suppressed, but refused to suppress other files.
Following trial by jury in an open court, the petitioners were acquitted of charges under the Georgia RICO statute, but not the charges of commercial gambling and communicating gambling information. Just before the trial of the other indicted individuals, the court released the transcript of the suppressionhearing to the public.
On appeal to the Georgia Supreme Court, the convictions were upheld in 1983.With regard to the issue of an open trial, that court ruled that the trial court had properly balanced rights under Georgia law and the Sixth Amendment--the right to a fair trial on the one hand, and the right to privacy on the other. The petitioners then took the case to the U.S. Supreme Court, at which time briefs of amici curiae urging affirmance were filed by the U.S. solicitor general, the Arizona attorney general, and individuals representing Americans for Effective Law Enforcement, Inc., et al.
The Presumption of Openness
A unanimous Court reversed the ruling of the lower court. Justice Powell, whodelivered the opinion, first identified a series of tests for justifying closure of a suppression hearing. The tests, derived from the Sixth Amendment and the Court's Press-Enterprise Co. v. Superior Court of California ruling earlier in the 1984 term, included the following:
Press-Enterprise, of course, addressed First Amendment, not Sixth Amendment concerns, and Powell noted this fact. "Nevertheless," he wrote, "therecan be little doubt that the explicit Sixth Amendment right of the accused isno less protective of a public trial than the implicit First Amendment rightof the press and public." In essence, Justice Powell noted, a public trial keeps everyone honest: it helps to ensure that judge and prosecutor undertaketheir duties as prescribed by law, it encourages witnesses to come forward, and it discourages the latter from perjury--presumably because it is easier toadvance a falsehood in front of a small group of people than a large one. "These aims and interests," Powell wrote, "are no less pressing in a hearing tosuppress wrongfully seized evidence."
Addressing the question of whether Georgia had met these criteria, the Courtfound that it had not. The state had not been specific enough in its profferwith regard to
Due to the state's failure to answer those specifics, the findings of the trial court were "broad and general," and did not support the move to close theentire hearing. Clearly, as Justice Powell noted, "the closure was far more extensive than necessary," given the fact that "The tapes lasted only 2 1/2 hours of the seven-day hearing, and few of them mentioned or involved parties not then before the court." Furthermore, the court had not considered alternatives to closure.
Thus the Court reversed the lower court's judgment, and the only remaining issue to be addressed was where to go from there with regard to the case at hand. The petitioners had asked for a new trial on the merits, but the Court didnot think this necessary. "If, after a new suppression hearing, essentiallythe same evidence is suppressed," Powell wrote, "a new trial presumably wouldbe a windfall for the defendant, and not in the public interest." Unless "anew, public suppression hearing results in the suppression of material evidence not suppressed at the first trial," the Court concluded, "or in some othermaterial change in the positions of parties," a new trial did not need to beheld.
Impact
On its own, the impact of Waller v. Georgia was slight. An informal review of Supreme Court cases over a period of nearly 15 years following the Court's 1984 decision, for instance, found only five cases that referred to Waller specifically. Considered as part of a larger trend, however, the results of Waller were powerful indeed. This trend relates at least asmuch to the First Amendment as to the Sixth: together with Press- Enterprise and the earlier cases of Gannett Co. v. DePasquale (1979), Richmond Newspapers, Inc. v. Virginia (1980), and Globe Newspaper Co. v. Superior Court for the County of Norfolk (1982), it helped to usher inan era of increased public awareness of trial proceedings. The introduction of cameras into the courtroom, which materially increased this awareness manifold, helped enhance public interest in the 1995 trial of O. J. Simpson and other legal actions. This in turn spawned a veritable industry of "courtroom entertainment" in the 1990s, symbolized by the creation of the Court TV network, which put a new spin on the idea of a "public trial" by broadcasting courtroom proceedings to millions of homes.
Related Cases
Surveillance
Electronic surveillance includes the secret monitoring of people and places while using devices such as cameras, tape recorders, video recorders, and wiretaps. State and federal investigators use this equipment to gather evidence on suspected criminals or criminal activity. The three main types of electronic surveillance are wiretapping, bugging, and videotaping. Wiretaps intercepttelephone calls by directly tapping into telephone lines, while bugs transmittelephone conversations to investigators after being hidden in a suspected place of criminal activity. Video surveillance equipment records and/or submits recorded images after video cameras are set up in a suspected place of criminal activity.
Investigators must, however, respect the right of people under the Fourth Amendment to secure themselves and their property against unreasonable searchesand seizures. The Fourth Amendment also prohibits judges from issuing warrants without probable cause. Although the Supreme Court held in 1928 that electronic surveillance techniques such as wiretapping did not constitute a searchand seizure, the Court ruled in 1967 that electronic surveillance did constitute a search and seizure and therefore it requires a warrant to be constitutional.
Sources
West's Encyclopedia of American Law. St. Paul, MN: West Publishing, 1998.
Guy Waller
Respondent
State of Georgia
Petitioner's Claim
That the state's closure of a hearing to the public constituted a violation of the right to a public trial guaranteed under the Sixth and Fourteenth Amendments.
Chief Lawyer for Petitioner
Herbert Shafer
Chief Lawyer for Respondent
Mary Beth Westmoreland, Assistant Attorney General of Georgia
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Sandra Day O'Connor, Lewis F. Powell, Jr. (writing for the Court), William H. Rehnquist, John Paul Stevens, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
21 May 1984
Decision
That the conditions of the hearing closure failed justification under a set of tests developed in Press-Enterprise Co. v. Superior Court of California (1984); and that the closure would not withstand Sixth Amendment scrutiny.
Significance
On one level, Waller v. Georgia involved Sixth Amendment issues. However, as Justice Powell stated in the unanimous opinion, the Court had "not recently" considered a Sixth Amendment case, and instead it turned to recent rulings with regard to reporting of trial proceedings--a concern more properly addressed under the First Amendment. Waller thus further established and solidified the tests developed by the Court earlier in the 1984 term, in its Press-Enterprise Co. v. Superior Court of California decision. The latter defined the limits of the government's power to suppress trial proceedings on the one hand, and of the public's right to know on the other. Both cases belonged to a larger trend in the 1980s toward allowing the public as muchknowledge of trial proceedings as was constitutionally possible.
Seven Days' Suppression for Two-and-a-Half Hours of Evidence
In the latter half of 1981, Georgia police began tapping the phones of individuals they suspected of involvement in an illegal lottery operation. This waslong before that state had a legal, state-run lottery, and the particular scheme operated by the individuals in this case involved gambling on the volumeof stocks and bonds traded on the New York Stock Exchange. In early Januaryof 1982, state law enforcement officials executed search warrants simultaneously at a number of locations, including the homes of the individuals who would become the petitioners in Waller v. Georgia. Along with 35 others, these individuals were indicted and charged under the Georgia Racketeer Influenced and Corrupt Organizations (Georgia RICO) Act of 1982, as well as under Georgia statutes regarding illegal gambling.
Before the trial, the petitioners, who were set to be tried separately in a series of cases that involved 13 other defendants, moved to suppress the police wiretaps and other evidence seized during the searches. The reason for thiswas that the warrants authorizing the wiretaps were not supported by probable cause, normally required by police to conduct such surveillance, and were based instead on vague and overly general information. Furthermore, the petitioners held that these taps were not conducted under appropriate supervision,and that the searches following them were indiscriminate, as well as "exploratory and general." The state of Georgia then moved to close the hearing on the motion to suppress, meaning that the public would not be able to witness the proceedings. In its closure motion, the state held that in order to justifyits seizure of evidence derived from the wiretaps, it would have to introduce evidence which could infringe on the privacy of individuals other than thedefendants.
The state made its reasoning more clear when on 21 June 1982, the court--having impaneled and then excused a jury--heard the closure and suppression motions. Under the Georgia wiretap statute, the state's attorney argued any use ofinformation that was not "necessary and essential" would constitute inadmissible evidence. More specifically, the wiretaps would "involve" individuals already indicted but not on trial at that point, as well as others who had notbeen indicted at all. The state's purpose was not to protect the indicted individuals' right to a fair trial, or the unindicted persons' right to privacy;rather, Georgia's prosecutor noted that the presentation of these wiretaps in open court would cause the evidence to be "tainted," and thus unavailable for use in future prosecution cases. The trial court agreed and, over objection from the petitioners, ordered the suppression hearing closed to persons other than the parties involved, the lawyers, court personnel, and witnesses.
The hearings that followed lasted seven days, but less than two-and-a-half hours of that time was devoted to playing the tapes of intercepted phone conversations. As it turned out, the voices recorded on the tapes included those ofsome who were not then on trial, but had been indicted. Though a single unindicted individual was mentioned by the others in one phone call, there was noone not currently under indictment. Throughout the remainder of the trial, the court's attention was directed to an examination of the procedures used toobtain and execute the search warrants and wiretap authorizations, as well as those used in preserving the tape recordings, and to the petitioners' allegations of misconduct on the part of police and prosecutors. All of these proceedings could, therefore, have been attended by the public without impingingon the matter addressed with regard to the tapes and the various indicted andunindicted individuals included on them. The court having agreed with the state's admission that ten boxes of papers it had seized during the searches were personal in nature, and unrelated to the crime in question, it ordered them suppressed, but refused to suppress other files.
Following trial by jury in an open court, the petitioners were acquitted of charges under the Georgia RICO statute, but not the charges of commercial gambling and communicating gambling information. Just before the trial of the other indicted individuals, the court released the transcript of the suppressionhearing to the public.
On appeal to the Georgia Supreme Court, the convictions were upheld in 1983.With regard to the issue of an open trial, that court ruled that the trial court had properly balanced rights under Georgia law and the Sixth Amendment--the right to a fair trial on the one hand, and the right to privacy on the other. The petitioners then took the case to the U.S. Supreme Court, at which time briefs of amici curiae urging affirmance were filed by the U.S. solicitor general, the Arizona attorney general, and individuals representing Americans for Effective Law Enforcement, Inc., et al.
The Presumption of Openness
A unanimous Court reversed the ruling of the lower court. Justice Powell, whodelivered the opinion, first identified a series of tests for justifying closure of a suppression hearing. The tests, derived from the Sixth Amendment and the Court's Press-Enterprise Co. v. Superior Court of California ruling earlier in the 1984 term, included the following:
the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; the closure must be no broader than necessary to protectthat interest; the trial court must consider reasonable alternatives to closing the hearing; and it must make findings adequate to support the cause.
Press-Enterprise, of course, addressed First Amendment, not Sixth Amendment concerns, and Powell noted this fact. "Nevertheless," he wrote, "therecan be little doubt that the explicit Sixth Amendment right of the accused isno less protective of a public trial than the implicit First Amendment rightof the press and public." In essence, Justice Powell noted, a public trial keeps everyone honest: it helps to ensure that judge and prosecutor undertaketheir duties as prescribed by law, it encourages witnesses to come forward, and it discourages the latter from perjury--presumably because it is easier toadvance a falsehood in front of a small group of people than a large one. "These aims and interests," Powell wrote, "are no less pressing in a hearing tosuppress wrongfully seized evidence."
Addressing the question of whether Georgia had met these criteria, the Courtfound that it had not. The state had not been specific enough in its profferwith regard to
whose privacy interests might be infringed if thehearing were open to the public, what portions of the wiretap tapes might infringe those interests, and what portion of the evidence consisted of the tapes.
Due to the state's failure to answer those specifics, the findings of the trial court were "broad and general," and did not support the move to close theentire hearing. Clearly, as Justice Powell noted, "the closure was far more extensive than necessary," given the fact that "The tapes lasted only 2 1/2 hours of the seven-day hearing, and few of them mentioned or involved parties not then before the court." Furthermore, the court had not considered alternatives to closure.
Thus the Court reversed the lower court's judgment, and the only remaining issue to be addressed was where to go from there with regard to the case at hand. The petitioners had asked for a new trial on the merits, but the Court didnot think this necessary. "If, after a new suppression hearing, essentiallythe same evidence is suppressed," Powell wrote, "a new trial presumably wouldbe a windfall for the defendant, and not in the public interest." Unless "anew, public suppression hearing results in the suppression of material evidence not suppressed at the first trial," the Court concluded, "or in some othermaterial change in the positions of parties," a new trial did not need to beheld.
Impact
On its own, the impact of Waller v. Georgia was slight. An informal review of Supreme Court cases over a period of nearly 15 years following the Court's 1984 decision, for instance, found only five cases that referred to Waller specifically. Considered as part of a larger trend, however, the results of Waller were powerful indeed. This trend relates at least asmuch to the First Amendment as to the Sixth: together with Press- Enterprise and the earlier cases of Gannett Co. v. DePasquale (1979), Richmond Newspapers, Inc. v. Virginia (1980), and Globe Newspaper Co. v. Superior Court for the County of Norfolk (1982), it helped to usher inan era of increased public awareness of trial proceedings. The introduction of cameras into the courtroom, which materially increased this awareness manifold, helped enhance public interest in the 1995 trial of O. J. Simpson and other legal actions. This in turn spawned a veritable industry of "courtroom entertainment" in the 1990s, symbolized by the creation of the Court TV network, which put a new spin on the idea of a "public trial" by broadcasting courtroom proceedings to millions of homes.
Related Cases
- Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
- Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596 (1982).
- Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501(1984).
- Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986).
Surveillance
Electronic surveillance includes the secret monitoring of people and places while using devices such as cameras, tape recorders, video recorders, and wiretaps. State and federal investigators use this equipment to gather evidence on suspected criminals or criminal activity. The three main types of electronic surveillance are wiretapping, bugging, and videotaping. Wiretaps intercepttelephone calls by directly tapping into telephone lines, while bugs transmittelephone conversations to investigators after being hidden in a suspected place of criminal activity. Video surveillance equipment records and/or submits recorded images after video cameras are set up in a suspected place of criminal activity.
Investigators must, however, respect the right of people under the Fourth Amendment to secure themselves and their property against unreasonable searchesand seizures. The Fourth Amendment also prohibits judges from issuing warrants without probable cause. Although the Supreme Court held in 1928 that electronic surveillance techniques such as wiretapping did not constitute a searchand seizure, the Court ruled in 1967 that electronic surveillance did constitute a search and seizure and therefore it requires a warrant to be constitutional.
Sources
West's Encyclopedia of American Law. St. Paul, MN: West Publishing, 1998.
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