Stephen E. Smith (Santa Clara University - School of Law) has posted The Online Criminal Trial as a Public Trial (Southwestern University Law Review, Vol. 51, 2021) on SSRN. Here is the abstract:
There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.
The constitutionality of an online trial may be largely an idle inquiry. There will rarely be an instance where instituting an online trial is worth the trouble. It is easier to simply open the doors of the courtroom. But the COVID-19 pandemic has taught us that there may be times when opening those doors is anything but simple.
