State v. Smith

FILE
IN CLERK'S OFFICE
SUPREME COURT, STATE OF WASHINGTON

DATE SEP 2 5 2014

......,,. •'

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, No. 85809-8

v. En Bane

WILLIAM GLEN SMITH, Filed SEP 2 5 2014

Petitioner.

J.M. JOHNSON, J. *-This case presents the issue of whether sidebar

conferences implicate a criminal defendant's right to a public trial under

article I, section 22 of the Washington Constitution and require a conviction

to be overturned. William Glen Smith claims that the trial court violated his

public trial right when courtroom limitations led to holding "sidebar"

conferences in a hallway outside the courtroom on the record with counsel

present. Smith argues that these sidebars were courtroom closures subject to

State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). Because the trial

*Justice James M. Johnson is serving as a justice pro tempore ofthe Supreme Court
pursuant to Washington Constitution article IV, section 2(a).
State v. Smith, No. 85809-8

court did not perform a Bone-Club analysis, he requests that this court reverse

his conviction and grant him a new trial.

We hold that sidebars do not implicate the public trial right. This court

uses the experience and logic test to evaluate whether a particular proceeding

implicates the public trial right. State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d

715 (2012). Sidebars are not subject to the public trial right under the

experience and logic test because they have not historically been open to the

public and because allowing public access would play no positive role in the

proceeding. Although the practice of holding sidebars in a hallway outside

the courtroom is unusual, the form of these hallway conferences was

consistent with the role traditionally filled by sidebars and so they do not

implicate the public trial right. We affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

Smith was charged by information with 10 counts of third degree rape

and fourth degree assault with a sexual motivation. Clerk's Papers (CP) at 4-

8. The information was later amended to add one count of second degree

perjury. Jd. at 56-60. The State brought charges after Smith compelled his

niece to enter into a contract purportedly waiving her right to refuse sex or

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State v. Smith, No. 85809-8

complain civilly or criminally about any sex acts he wanted to perform with

her for 10 years. 1

The Cowlitz County courthouse has a peculiar layout making it difficult

to hold sidebar discussions between counsel and the trial judge outside the

jury's hearing. Suppl. Br. ofPet'r, App. A. To avoid contaminating the jury

with potentially prejudicial rulings on evidentiary objections, these sidebar

discussions occur in a hallway outside the courtroom. Id. The judge throws

a switch before each hallway sidebar that deactivates the recording equipment

in the courtroom and activates a camera and microphone in the hallway to

keep these sidebars on the record. Id. During Smith's trial, 13 2 hallway

"sidebar" 3 conferences occurred. !d. App. A at 2. After the trial, the jury

1
The contract also contained a liquidated damages clause provided that if the victim ever
denied consent, she would have to pay "the Pro-Rated Balance of$10,000.00 ten thousand
dollars minus $1,000.00 one thousand dollars per year." Ex. 5.

2
The dissent agrees that the sidebar to discuss a time for recess does not implicate the
public trial right. Dissent at 4 & n.3. This position is inconsistent and comes
dangerously close to one of the "ministerial" proceedings that are allowed under the
legal-factual test rejected in Sublett. The dissent cites Justice Stephens' Sublett
concurrence for the proposition that the public trial right does not attach to "brief sidebars
to allow counsel to raise concerns that may need to be taken up outside the jury's
presence." Id. at 2 n.2. All sidebars have to take place outside the presence of the jury
because hearing the content would expose the jury to potentially prejudicial evidence.

3
Although the parties disagreed about whether to characterize these hallway conferences
as "sidebars" or something else, we analyze them as sidebars here because that is the role
these conferences played in the trial. The analysis would not change for on the record
evidentiary conferences in chambers.

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State v. Smith, No. 85809-8

convicted Smith on four counts of third degree rape and one count of second

degree perjury.

On direct appeal Smith alleged, among other things, that 12 of the

hallway sidebars violated his public trial right because the trial court failed to

conduct a Bone-Club analysis. Pet. for Review at 4. Division Two of the

Court of Appeals held that the hallway sidebars did not implicate Smith's

public trial right because they "involved purely ministerial and procedural

matters." State v. Smith, noted at 159 Wn. App. 1011,2011 WL 55972, at *4.

The Court of Appeals affirmed Smith's conviction but remanded only for

resentencing. 2011 WL 55972, at *12. We accepted review solely on the

public trial rights issue and affirm the conviction with a differing analysis.

State v. Smith, 176 Wn.2d 1031,299 P.3d 20 (2013).

ISSUE

The issue is whether sidebar conferences on evidentiary matters in a

hallway outside the courtroom implicate the public trial right. 4

4
The parties also disputed whether Smith invited this alleged error. It is not necessary to
address that issue here because we find the constitutional right does not attach to traditional
sidebars, like those here.

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State v. Smith, No. 85809-8

ANALYSIS

Whether a defendant's right to a public trial has been violated is a

question of law, subject to de novo review on direct appeal. State v.

Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005) (citing Bone-Club, 128

Wn.2d at 256).

Lower courts in this state continue to struggle with the open courts

doctrine derived from article I, section 22. In Sublett, Chief Justice Madsen

laid out a helpful analytical framework that guides our analysis of public trial

right cases. We

begin by exammmg . . . whether the public trial right is
implicated at all . . . then turn to the question whether, if the
public trial right is implicated, there is in fact a closure of the
courtroom; and if there is a closure, whether ... the closure was
justified.

176 Wn.2d at 92 (Madsen, C.J., concurring). Application of these rules and

framework in this case should provide guidance to trial courts in future cases.

We adopt this three-step framework here. 5

5
Sublett could be read as requiring a two part analysis, first asking whether the public
trial right attaches and then turning to whether there was a violation of the right. See
State v. Wilson, 174 Wn. App. 328, 298 P.3d 148 (2013). However, the question of
whether a closure occurred is a distinct question from whether that closure was justified
because a closure after the trial court conducts a Bone-Club analysis does not violate the
right. State v. Frawley, No. 80727-2, slip op. at 7 (Wash. Sept. 25, 2014) (lead opinion).
In both State v. Njonge, No. 86072-6 (Wash. Sept. 25, 2014) and State v. Koss, No.
85306-1 (Wash. Sept. 25, 2014), the defendants failed to prove that a closure occurred at

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State v. Smith, No. 85809-8

1. Does the proceeding at issue implicate the public trial right?

The proceeding at issue in this case is a sidebar conference held in a

hallway outside the courtroom. For some time our Court of Appeals drew a

distinction between legal and ministerial proceedings on one hand and

adversarial and factual proceedings on the other. 6 Sublett, 176 Wn.2d at 72.

In this case, the Court of Appeals used the legal-factual test. Smith, 2011

WL 55972, at *4. While Smith's petition was pending in this court, we

decided Sublett, which rejected the old legal-factual distinction in favor of the

experience and logic test to determine whether the proceeding at issue

implicates the public trial right. 176 Wn.2d at 73 (citing Press-Enter. Co. v.

Superior Court, 478 U.S. 1, 8-10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)).

"The first part of the test, the experience prong, asks 'whether the place

and process have historically been open to the press and general public.' The

logic prong asks 'whether public access plays a significant positive role in the

functioning of the particular process in question."' !d. (citations omitted)

(quoting Press-Enter., '478 U.S. at 8). The guiding principle is "whether

all, ending the inquiry before we reached the question of whether a Bone-Club analysis
occurred to justify the alleged closures.

6
As shorthand, we label it here the "legal-factual test."

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State v. Smith, No. 85809-8

openness will 'enhance[] both the basic fairness of the criminal trial and the

appearance of fairness so essential to public confidence in the system.'" I d.

at 75 (alteration in original) (quoting Press-Enter. Co. v. Superior Court, 464

U.S. 501, 508, 104 S. Ct. 819,78 L. Ed. 2d 629 (1984)).

a. The Experience Prong

Sidebar conferences have historically occurred outside the view of the

public. See, e.g., State v. Swenson, 62 Wn.2d 259, 279, 382 P.2d 614 (1963)

(sidebar to address witness concerns about witness's comfort while

testifying); 2 BYRON K. ELLIOTT & WILLIAM F. ELLIOTT, A TREATISE ON

GENERAL PRACTICE CONTAINING RULES AND SUGGESTIONS FOR THE WORK OF

THE ADVOCATE IN THE PREPARATION FOR TRIAL, CONDUCT OF THE TRIAL AND

PREPARATION FOR APPEAL 714 (1894) (advocating offers of proof in response

to evidentiary objections in writing or otherwise outside the jury's hearing);

JAMES W. JEANS, TRIAL ADVOCACY§ 14.7, at 355 (1975) (advocating use of

sidebar conferences as the preferred practice to address issues discreetly

outside the hearing of the jury); see also In re Det. of Ticeson, 159 Wn. App.

374, 384-86, 246 P.3d 550 (2011) (abrogated for use of the legal-factual test).

The defendant in Ticeson invoked his public trial right to challenge an in-

chambers conference on the admissibility of "certain deposition testimony."

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State v. Smith, No. 85809-8

Ticeson, 159 Wn. App. at 378. In rejecting the defendant's claim, the Ticeson

court noted that

In the case of sidebar discussions, issues arising with the
jury present would always require interrupting trial to send the
jury to the jury room, often located some distance from the
courtroom, thereby occasioning long delays every time the court
wishes to caution counsel or hear more than a simple "objection,
Your Honor." This would do nothing to make the trial more fair,
to foster public trust, or to serve as a check on judges by way of
public scrutiny.

Id. at 386 n.38. The court reasoned that the "public trial right is not served by

such a reading, and the ability of judges [to run orderly courtrooms] would be

greatly hindered without a corresponding public benefit." Id. at 386. 7

Smith offers no effective response to this history or the practical

difficulties in extending our public trial jurisprudence to sidebar conferences

on evidence. 8 Without any evidence the public has traditionally participated

7
While Smith alleges a violation of his article I, section 22 public trial right rather than
section 10, the two are closely linked. Bone-Club, 128 Wn.2d at 259 ("The section
10 guaranty of public access to proceedings and the section 22 public trial right serve
complementary and interdependent functions in assuring the fairness of our judicial
system." (citing CONST. art. I, § 10)). Sidebars occur in both criminal and civil trials.
While some civil trial proceedings implicating section 10 might be different from the
section 22 criminal case before us now, sidebars are not traditionally open in either civil or
criminal trials.

8
The dissent downplays the inconvenience of sending the jury out of the courtroom
"approximately four times a day." Dissent at 6. But neither Smith nor the dissent can
point to any case holding that sidebar conferences to address speaking objections to
evidence during trial are unconstitutional. Such a holding would be unprecedented and

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State v. Smith, No. 85809-8

in sidebars, the experience prong cannot be met. Instead, Smith relies on

several examples that are easily distinguishable.

In Bone-Club, 128 Wn.2d at 256, this court held that a pretrial

suppression proceeding implicated the public trial right. In Bone-Club, the

court closed the courtroom during the testimony of an undercover police

officer to protect the confidentiality of his undercover activities. I d. at 257.

Sidebars are different. Pretrial suppression hearings rule on issues with a

significant impact in the community. 9 Proper sidebars, on the other hand, deal

with the mundane issues implicating little public interest. Wise, 176 Wn.2d

at 5. 10

In State v. Easterling, 157 Wn.2d 167, 137 P.3d 825 (2006), the court

closed the courtroom during a codefendant's combined motion to sever and

dismiss. Id. at 172. The hearing involved discussion about whether the state

extreme. This is not merely "bow[ing] to convenience;" it is a proper application of the
experience and logic test to a prolific and historic practice. !d.

9
One example is whether a police search violated a defendant's privacy rights under
article I, section 7 of the Washington State Constitution.

10
We caution that merely characterizing something as a "sidebar" does not make it so.
To avoid implicating the public trial right, sidebars must be limited in content to their
traditional subject areas, should be done only to avoid disrupting the flow of trial, and
must either be on the record or be promptly memorialized in the record. Whether the
event in question is actually a sidebar is part of the experience prong inquiry and is not
subject to the old legal-factual test.

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State v. Smith, No. 85809-8

had acted in bad faith. I d. & n. 7. The proceeding at issue in Easterling was

simply not akin to a sidebar. The closure in that case clearly implicated

Easterling's rights because of the appearance of impropriety. Courts have a

strong "interest in protecting the transparency and fairness of criminal trials."

ld. at 178. The proceeding in Easterling "undermined the fairness of the

process" because the defendant and his attorney were excluded from the

pretrial hearing along with the rest of the public. ld. In this case, Smith's

counsel was present at and participated in every sidebar.

Smith also cites Rovinsky v. McKaskle, 722 F.2d 197, 198 (5th Cir.

1984). In that case, the Fifth Circuit reversed a conviction where the trial

judge heard arguments in chambers on motions to limit the scope of cross

examination of two witnesses. First, the Fifth Circuit did not employ the

experience and logic test in concluding the motion hearing should have been

conducted in open court. Second, even if the Rovinsky court correctly

concluded that the public trial right attached to that hearing, there is an

important difference between the type of sidebars here-contemporaneously

addressing speaking objections throughout trial-and the motions in

Rovinsky. The motions concerned two specific witnesses and were brought

before trial commenced but not considered until both witnesses had provided

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State v. Smith, No. 85809-8

direct testimony. !d. at 199. Like Easterling, the proceeding in Rovinsky is

not analogous to the sidebars here. 11 Third, the Rovinsky court expressly

stated that "[s]idebar conferences in which the defendant's counsel

participates without objection do not violate the right to a public trial." Id. at

201. The public trial right is, among other things, a prophylactic measure

allowing the public to observe the process and weigh the defendant's guilt or

innocence for itself. 12 !d. at 201-02. The sidebars in this case would not aid

the public in assessing Smith's guilt or innocence. Finally, the sidebars here

are further distinguishable from the motions in Rovinsky because there is a

video and audio record. Any inquiring member of the public can discover

exactly what happened at sidebar. Smith has not satisfied the experience

prong.

11
A helpful analogy is the difference between setting ground rules prior to a baseball
game versus the umpire calling balls and strikes during the game. Pretrial motions set the
rules of a trial while a judge's rulings on evidence determine whether a party has strayed
outside those rules.

12
We in no way question the importance of the public trial right in Washington.
Rovinsky applies to the federal public trial right. Our founders enshrined the public trial
right in article I of our state constitution. The right to a public trial is a core safeguard to
the justice system and fair trials, and it is an important check on the judiciary. Wise, 176
Wn.2d at 5-6.

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State v. Smith, No. 85809-8

b. The Logic Prong

The logic prong asks "'whether public access plays a significant

positive role in the functioning of the particular process in question."' Sublett,

176 Wn.2d at 73 (quoting Press-Enter., 478 U.S. at 8). Smith articulates no

specific interest that is served by ensuring that the public is privy to a sidebar,

and it is difficult to conceive of one. Indeed, forcing the jury in and out of the

courtroom repeatedly whenever an objection is made at trial would be a

problematic practice. 13 But more importantly, evidentiary rulings that are the

subject of traditional sidebars do not invoke any of the concerns the public

trial right is meant to address regarding perjury, transparency, or the

appearance of fairness. See Sublett, 176 Wn.2d at 77. Critically, the sidebars

here were contemporaneously memorialized and recorded, thus negating any

concern about secrecy. The public was not prevented from knowing what

occurred. Nothing positive is added by allowing the public to intrude on the

huddle at the bench in real time. Sublett, 176 Wn.2d at 97-98 (Madsen, C.J.,

concurring) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

598 n.23, 100 S. Ct. 2814,65 L. Ed. 2d 973 (1980) (Brennan, J., concurring)).

13
While we assume that juries follow their instructions, we must also acknowledge that
juries are made of imperfect human beings subject to the annoyance of constantly
marching in and out of the courtroom.

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State v. Smith, No. 85809-8

No logic compels the conclusion that sidebars must be conducted in open

court.

Applying our own logic to the situation does not advance Smith's

argument. Many lawyers fail to fully appreciate the complexities of the

hearsay rule and its many exceptions. For the public, discussions on hearsay

and the prior inconsistent statement exception are practically a foreign

language. Such rulings are exclusively within the province of the trial judge

under ER 104(a). Nothing is added to the functioning of the trial by insisting

that the defendant or public be present during sidebar or in-chambers

conferences. Indeed, the trial court did what ER 104( c) requires in the interest

of justice by preventing the jury from hearing discussions on potentially

inadmissible evidence. The logic prong weighs against Smith.

Sidebars have traditionally been held outside the hearing of both the

jury and the public. Because allowing the public to "intrude upon the huddle"

would add nothing positive to sidebars in our courts, we hold that a sidebar

conference, even if held outside the courtroom, does not implicate

Washington's public trial right. 14 See supra p. 11.

14
This holding is simply common sense. In a sidebar the judge and counsel necessarily
speak in hushed voices to prevent the jury from overhearing potentially prejudicial
information. Spectators in the pews behind counsel tables are often farther away from the

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State v. Smith, No. 85809-8

Finding that the sidebars or evidentiary conferences in this case did not

implicate the public trial right, the court need not reach the remaining three

steps in this case. However, we provide the following guidance to assist

reviewing courts in the future.

2. Was there a closure?

A closure occurs "when the courtroom is completely and purposefully

closed to spectators so that no one may enter and no one may leave." State v.

Lormor, 172 Wn.2d 85, 93,257 P.3d 624 (2011). This court has adopted the

experience and logic test to determine whether a closure occurred in the

absence of an express closure on the record. In re Pers. Restraint of Yates,

177 Wn.2d 1, 28-29, 296 P.3d 872 (2013). When no closure exists, the trial

court judge "possesses broad discretion [including] the power to remove

distracting spectators" and to provide orderly conduct to ensure a fair

proceeding. Lormor, 172 Wn.2d at 93-94 (applying RCW 2.28.010).

The court need not reach this step if the answer to the first question is

negative. Because the sidebar conferences in this case do not implicate the

public trial right, the court need not determine whether they were closed.

bench than the jury. If the jury cannot hear a sidebar, then the public almost certainly
cannot hear it either.

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State v. Smith, No. 85809-8

3. Was the closure justified?

A closure unaccompanied by a Bone-Club analysis on the record will

almost never be considered justified. A trial court that properly conducts a

Bone-Club analysis and enters a finding on the record that the closure is

justified will almost never be overturned because such a determination is

subject to review for abuse of discretion. Wise, 176 Wn.2d at 11. When a

court fails to conduct an express Bone-Club analysis a reviewing court may

examine the record to determine if the trial court effectively weighed the

defendant's public trial right against other compelling interests. Momah, 167

Wn.2d at 156. However, we have said that "it is unlikely that we will ever

again see a case like Momah where there is effective, but not express

compliance with Bone-Club" and thus far, our prediction has been correct.

Wise, 176 Wn.2d at 15.

Again, because the sidebar conferences in this case do not implicate the

public trial right, the court does not consider whether the alleged closure was

justified.

CONCLUSION

This court accepted review on several public trial rights cases this term

to clarify the law in this field. We have partially adopted the framework

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State v. Smith, No. 85809-8

advocated by Chief Justice Madsen in Sublett. The steps of this public trial

right framework are: (1) Does the proceeding at issue implicate the public trial

right? (2) If so, was the proceeding closed? And (3) If so, was the closure

justified?

Applying the experience and logic test in the first step to this case, we

find that sidebars such as the ones presented in this case have not traditionally

been open to the public and injecting the public into sidebars would have no

positive impact. Accordingly, sidebar conferences do not implicate the public

trial right.

Because reasonable and traditional sidebars used to avoid interruption

of a trial do not implicate the public trial right, the court need not reach the

remaining two steps of the public trial right framework here. We affirm the

Court of Appeals with the caveat that the legal-factual test it relied on was

rejected in Sublett.

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State v. Smzth, No . 85809-8
.

Pr
.

WE CONCUR:

s~/2

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State v. Smith (William Glen) (Wiggins, J., concurring in result)

No. 85809-8

WIGGINS, J. (concurring in result)-1 agree with the result reached by the

majority opinion, but I write separately because our open courts jurisprudence has

become increasingly complex and confusing. We adopted the logic and experience

test as the method by which judges can determine whether a particular phase of trial

is subject to the Washington Constitution's command that justice shall be administered

openly. CONST. art. I, §§ 10, 22; State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012).

But this case and other pending cases reveal that it is difficult and confusing, if not

impossible, to draw clear lines between trial procedures that should be open and those

that can be closed.

We embarked on this journey with the best of intentions: to invigorate our open

courts jurisprudence and to protect criminal defendants' constitutional right to an open

and public trial. But this experience teaches that there are many types of closures at

different points in trial, and most defy easy classification under the logic and

experience test. Moreover, it remains near impossible to predict whether the public

trial right attaches to a particular proceeding, even when proceedings are identical or

closely analogous to our prior case law. Most problematically, we have resorted to the

logic and experience test to reduce the right to a public trial, carving out exceptions to

the public trial right for various steps in the trial. We should take this opportunity to
No. 85809-8 (Wiggins, J., concurring in result)

clarify Washington's open courts jurisprudence to lend guidance to judges and

practitioners facing these questions on a daily basis.

Accordingly, I would reject the logic and experience test and instead hold that

all trial proceedings are presumed open. In order to close a phase of trial, a trial judge

must conduct a Bone-Ciub 1 analysis on the record. And on appeal, I would require a

defendant to have objected at trial or to satisfy RAP 2.5(a)(3) in order to assert the

right to a public trial.

ANALYSIS

Numerous decisions from this court attempt to delineate the contours of the

public trial right. In this quest, our cases have applied the following principles and

rules. We employ the logic and experience test to determine whether a proceeding

implicates the public trial right. Sublett, 176 Wn.2d at 72-73. If we find that experience

and logic counsel that a particular process in the trial must be open, the following

draconian rules apply:

• In order to close the courtroom for that process, the trial court must

conduct a Bone-Club analysis before closure;

• the defendant need not object to the closure or the failure to conduct a

Bone-Club analysis, State v. Wise, 176 Wn.2d 1, 6, 288 P.3d 113 (2012);

• closing the courtroom without conducting a Bone-Club analysis is

considered "structural error," and the defendant is automatically entitled

1 State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

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No. 85809-8 (Wiggins, J., concurring in result)

to a new trial without any showing of prejudice, Wise, 176 Wn.2d at 13-

14;

• the issue can be raised for the first time on appeal or even in a

postappeal collateral attack on a conviction through a personal restraint

petition, see In re Pers. Restraint of Morris, 176 Wn.2d 157, 161, 288

P.3d 1140 (2012).

Having adopted these onerous principles, we are constrained by the doctrine

of stare decisis to continue to adhere to them unless our decisions adopting these

principles are incorrect and harmful. In re Pers. Restraint of Yates, 177 Wn.2d 1, 25,

296 P.3d 872 (2013) (quoting City of Federal Way v. Koenig, 167 Wn.2d 341, 346-47,

217 P.3d 1172 (2009)). This case illustrates why the logic and experience test is

incorrect and harmful.

I. Overview of the Logic and Experience Test

In Bone-Club, 128 Wn.2d 254, we articulated a five-step inquiry that a court

must consider before closing proceedings to the public. 2 But soon after Bone-Club, it

2 The five step Bone-Club analysis is:

"1. The proponent of closure or sealing must make some showing [of a
compelling interest], and where that need is based on a right other than an
accused's right to a fair trial, the proponent must show a 'serious and imminent
threat' to that right.
"2. Anyone present when the closure motion is made must be given an
opportunity to object to the closure.
"3. The proposed method for curtailing open access must be the least
restrictive means available for protecting the threatened interests.
"4. The court must weigh the competing interests of the proponent of
closure and the public.

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No. 85809-8 (Wiggins, J., concurring in result)

became apparent that trial judges did not consider routine procedures to be closures

and so did not conduct a Bone-Club analysis before using sealed questionnaires or

closing parts of voir dire.

In an effort to provide guidance to trial and appellate judges, a plurality of this

court adopted the logic and experience test for determining whether the public trial

right attaches to a particular proceeding. Sublett, 176 Wn.2d at 73. The Sublett

plurality borrowed the "experience and logic test" from a 1986 United States Supreme

Court case, Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13-14, 106 S. Ct. 2735,

92 L. Ed. (1986), finding the test to be desirable because it allows the trial court "to

consider the actual proceeding at issue for what it is, without having to force every

situation into predefined factors." Sublett, 176 Wn.2d at 73.

Consistent with its name, the experience and logic test has two parts. The

experience prong determines "whether the place and process have historically been

open to the press and general public." Press, 478 U.S. at 8. The logic prong

determines "whether public access plays a significant positive role in the functioning

of the particular process in question." /d. If the answer to both questions is yes, the

right to public trial attaches and the court must analyze the proposed closure using

the five Bone-Club factors. Sublett, 176 Wn.2d at 73.

"5. The order must be no broader in its application or duration than
necessary to serve its purpose."

Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers of
Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).

4
No. 85809-8 (Wiggins, J., concurring in result)

II. Logic and Experience Test Is Flawed

The logic and experience test is flawed because it fails to account for article I,

section 1O's uniquely strong mandate for openness at every stage of a judicial

proceeding. Moreover, it categorically permits closures in certain types of

proceedings without considering the effect that such closures have on the open

administration of justice in that particular case.

A. Fails to account for our constitution's unique emphasis on open proceedings

Washington is one of a number of states whose constitutions (unlike the United

States Constitution) explicitly guarantee the open administration of justice. 3 Article I,

section 10 of our constitution commands, "Justice in all cases shall be administered

openly, and without unnecessary delay." The special emphasis on open court

proceedings renders the Washington Constitution arguably more stringent than its

federal counterpart, and our court's decisions have consistently emphasized the value

of open administration of justice. See, e.g., Wise, 176 Wn.2d at 5; State v. Lormor,

172 Wn.2d 85, 90-91, 257 P.3d 624 (2011 ).

The logic and experience test fails to account for the text and fu_nctign_ of article

I, section 10. It is a test developed by federal courts with the United States

Constitution in mind. It has little applicability to our constitution, which mandates that

justice in all cases be administered openly. Moreover, we have recognized that the

purpose of article I, section 10 is to "'ensure a fair trial, to remind the officers of the

court of the importance of their functions, to encourage witnesses to come forward,

3 The United States Constitution never mentions open courts. Instead, the right to a public
trial is implied in the First Amendment and made explicit in the Sixth Amendment. U.S. CONST.
amends. I, VI ("the accused shall enjoy the right to a speedy and public trial").

5
No. 85809-8 (Wiggins, J., concurring in result)

and to discourage perjury."' State v. Strode, 167 Wn.2d 222, 226, 217 P.3d 310 (2009)

(quoting State v. Brightman, 155 Wn.2d 506,514, 122 P.3d 150 (2005)). But, applying

the logic and experience test, we have drawn increasingly arbitrary lines delineating

the universe of proceedings to which the public trial right attaches without considering

whether our decisions further these goals. Indeed, public trial values are implicated

when counsel and the court meet privately to discuss jury instructions, to answer a

question from the jury, and to argue and rule on evidentiary issues. And yet, a majority

of this court holds that the right to public trial did not extend to an in-chambers

conference to discuss a question from a deliberating jury regarding jury instructions

(Sublett, 176 Wn.2d at 147), nor to an in-chambers discussion of jury instructions prior

to deliberations (State v. Koss, No. 85306-1 (Wash. Sept. 25, 2014)), nor to the 12

sidebar conferences here that involved the exclusion of testimony and evidence

(majority at 2). As Justice Owens explains in her dissent, discussion over the

admissibility of key evidence is of public interest and, ultimately, could determine the

outcome of the case. Dissent at 8. Without openness, the public is left to wonder why

certain evidence was excluded; "[l]ogically, it follows that the public's trust in our justice

system will weaken." /d. at 9. We should not continue to adhere to a test that does

not further our constitution.

B. Permits categorical closures of certain proceedings

The guiding principle for determining whether the public trial right should attach

is "whether openness will 'enhance[] both the basic fairness of the criminal trial and

the appearance of fairness so essential to public confidence in the system.'" Majority

at 7 (alteration in original) (internal quotation marks omitted) (quoting Sublett, 176

6
No. 85809-8 (Wiggins, J., concurring in result)

Wn.2d at 75). Unfortunately, this principle has been honored more in its breach than

in its observance. We have held that the right to public trial always attaches to

suppression hearings (Bone-Club, 128 Wn.2d 254 ), hearings on pretrial motions to

sever (State v. Easterling, 157 Wn.2d 167, 137 P.3d 825 (2006)), and voir dire (In re

Pers. Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004)). But it never

attaches to in-chambers conferences to discuss jury instructions (Koss, slip op. at 7-

8), in-chambers conferences to discuss questions from juries (Sublett, 176 Wn.2d 58),

or the Smith trial sidebars. But never have we explained why openness in

proceedings that we have deemed subject to the constitutional open trial right protects

the values of an open trial to a greater extent than would openness in proceedings

that we have held are not subject to the constitutional open trial right.

Not all cases proceed identically. Here, there were 12 sidebars involving

important and substantive evidentiary rulings that almost certainly affected the

outcome of the case. For instance, as a result of sidebar discussions, the court

admitted Smith's statement to police that the sex was consensual as self-serving

hearsay; admitted Smith's written statement, which was prepared by police and then

adopted by Smith; ruled that the treating physician could testify as to the alleged

victim's identification of the perpetrator; admitted nude photos of the alleged victim

and sexual items found by the detective in Smith's residence; and ruled that the

prosecutor could ask Smith if he told his wife he did not sleep with the alleged victim

to show that Smith lied. See dissent at 2-3. Holding private discussions over evidence

and testimony does not foster trust in the judicial system and does not remind

participants of their role in the judicial system; "[t]he proper forum for argument on

7
No. 85809-8 (Wiggins, J., concurring in result)

these issues is in open court." /d. at 8. Indeed, what if in a future case there are 20,

or 50, sidebars? What if the sidebars involve suppression of a key piece of evidence?

The logic and experience test is incorrect because it places categorical limits on

openness that might bar future requests for access to administration of justice simply

because the closure involved a type of proceeding. If we continue to close the

courtroom one proceeding after another, we will diminish open access to courts and

court records.

Ill. Logic and Experience Test Is Harmful

The logic and experience test is harmful because it fails to provide much-

needed guidance to judges, attorneys, and defendants. The conflicting majority and

dissenting opinions show that reasonable minds can differ on what constitutes "logic"

and "experience." Indeed, the test is difficult to apply on any principled basis and so

vague that the result of applying it can easily appear contrived. In addition, future

applications of the test will almost certainly lead to further restrictions on our

commitment to the open administration of justice because history often leans in favor

of permitting the closure.

A. Fails to provide guidance

In the 15 years since Bone-Club, our courts have vacated dozens of convictions

in cases where no Bone-Club analysis was performed. 4 In the wake of these

4 See, e.g., In re Pers. Restraint of D'AIIesandro, 178 Wn. App. 457, 314 P.3d 744 (2013);
State v. Jones, 175 Wn. App. 87, 303 P.3d 1084 (2013); Morris, 176 Wn.2d 157; Wise, 176
Wn.2d 1; State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (2012); Strode, 167 Wn.2d 222;
Easterling, 157 Wn.2d 167; Brightman, 155 Wn.2d at 506; Orange, 152 Wn.2d 795; State v.
Hummel, 165 Wn. App. 749, 266 P.3d 269 (2012); State v. Njonge, 161 Wn. App. 568, 255
P.3d 753 (2011 ), review granted in part, 176 Wn.2d 1031 (2013); State v. Tinh Trinh Lam, 161

8
No. 85809-8 (Wiggins, J., concurring in result)

reversals, Washington judges and practitioners seek guidance. Unfortunately, we

have offered them a test that provides little clarity, as evidenced by the persistent

uncertainty around whether the public trial right attaches to a particular proceeding.

In 2012, this court reviewed a number of public trial cases in which jurors had

been questioned individually in chambers. Wise, 176 Wn.2d 1; State v. Paumier, 176

Wn.2d 29, 288 P.3d 1126 (2012). We concluded that a defendant's right to a public

trial applies to the jury selection process. Wise, 176 Wn.2d at 11-13; Paumier, 176

Wn.2d at 34-35. But, when confronted with an arguably analogous case, we came to

a different conclusion. The lead opinion in Slert finds that the public trial right does

not attach to pre-voir-dire in-chamber discussions about jurors' answers to

questionnaires designed to evaluate the jurors' fitness to serve. State v. Slert, No.

87844-7, slip op. at 8 (Wash. Sept. 25, 2014). The Slert dissent, however, points out

that several jurors were dismissed for cause after filling out the questionnaire,

indicating that this was voir dire and not "a precursor to voir dire." S/ert, slip op. at 1

(dissent) (emphasis added). Arguably, the logic and experience test should have been

easily applied to S/ert under our past precedent. Like Wise and Paumier, S/ert

involved erroneous closure of a portion of the jury selection process-specifically, in-

chambers discussions that resulted in jurors being excused for cause based on their

answers to questions. Cf. Wise, 176 Wn.2d 1; Paumier, 176 Wn.2d 29.

Wn. App. 299, 254 P.3d 891 (2011 ), review granted, 176 Wn.2d 1031 (2013); State v. Leyerle,
158 Wn. App. 474, 242 P.3d 921 (2010); State v. Bowen, 157 Wn. App. 821, 239 P.3d 1114
(2010); State v. Waldon, 148 Wn. App. 952, 202 P.3d 325 (2009); State v. Sadler, 147 Wn.
App. 97, 193 P.3d 1108 (2008); State v. Erickson, 146 Wn. App. 200, 189 P.3d 245 (2008);
State v. Duckett, 141 Wn. App. 797, 173 P.3d 948 (2007); State v. Frawley, 140 Wn. App.
713, 167 P.3d 593 (2007), review granted, 176 Wn.2d 1030 (2013).

9
No. 85809-8 (Wiggins, J., concurring in result)

If "experience" teaches us anything, it is that there is no clear, meaningful way

to define trial procedures, such as the jury selection process, thus rendering even

"easy" cases difficult. See, e.g., State v. Wilson, 174 Wn. App. 328, 298 P.3d 148

(2013) (right does not attach to excusal of jurors for illness related reasons because

this is pretrial juror excusal, not voir dire). But see State v. Jones, 175 Wn. App. 87,

303 P.3d 1084 (2013) (public trial right attached to court recess during which the court

clerk randomly selected four alternate jurors); State v. Tinh Trinh Lam, 161 Wn. App.

299, 254 P.3d 891 (2011) (public trial right attached to questioning of sworn-in juror

because process was procedurally similar to and conducted for the same purpose as

voir dire), review granted, 176 Wn.2d 1031 (2013). Indeed, in another recent case

involving jury selection, the court held that the public trial right did not attach to parties'

use of peremptory and for-cause challenges at a sidebar conference. State v. Love,

176 Wn. App 911, 918, 309 P.3d 1209 (2013). The court distinguished voir dire-the

questioning of juries-from the exercise of peremptory and for-cause challenges and

reasoned that, historically, challenges are not made in public. 5 /d. The court also

held under the logic prong that exercising challenges to excuse jurors in open court

did not further the goals of the public trial right. /d. These cases demonstrate that it

remains near impossible to predict whether the public trial right attaches, even when

proceedings are closely analogous to our prior case law.

5 Instead of characterizing the closure as a sidebar closure, the court focused on the
substantive actions taken at the sidebar-i.e., the exercise of challenges to excuse jurors.
Love, 176 Wn. App. at 918.

10
No. 85809-8 (Wiggins, J., concurring in result)

Applying the logic and experience test to new situations has proved equally

difficult. The majority and dissenting opinions in the current case demonstrate the

difficulties associated with identifying what constitutes "experience and logic" under

the test. Both opinions apply the test to arrive at different conclusions. The majority

reasons that under the experience prong, sidebars have historically and necessarily

included counsel but excluded the public and the defendant. Majority at 7. Moreover,

sidebars deal with mundane issues implicating little public interest. /d. at 9. Under

the logic prong, neither the defendant nor the public has a right to be present during

in-chambers or bench conferences because they add nothing to the discussion. /d.

at 11-12. Thus, the majority holds that sidebars do not implicate the public trial right.

The dissent reaches the opposite conclusion, reasoning that under the

experience prong, the sidebars here involved discussion of important evidentiary

issues, and many judges discuss evidentiary matters in open court. Dissent at 5. The

dissent argues that logic dictates that whether a key piece of evidence is admitted or

not can determine the outcome of a case. !d. at 8. Accordingly, the dissent concludes

that it is important to make this process open to the public. !d. If the same judges who

adopted the logic and experience test cannot apply it consistently in a simple case,

the test is unworkable and harmful; we should overrule our prior case law.

Our decisions in these cases provide few answers and raise more questions.

In this case, neither a party nor a member of the public objected to the sidebar

process. But what will we do when, in a high profile criminal prosecution, a news media

reporter asks to be included in the sidebar? We are deciding here that sidebars are

not subject to the public trial right; presumably the reporter's request will be denied.

11
No. 85809-8 (Wiggins, J., concurring in result)

Or what if, as unlikely as it seems, the trial judge makes biased or improper statements

during the sidebar, knowing that the sidebar is not public? Or what if sidebars result

in consistently one-sided rulings, and a courtroom observer asks that all further

sidebars be made public? What if there is absolutely no record of what was discussed

at sidebar?

The logic and experience test is harmful because it adds to the confusion rather

than providing clear guidance to trial and appellate judges. A recent law review article

remarks that trial judges have become increasingly reluctant to conduct any type of

in-chambers or sidebar conference in light of the unsettled state of the law. Anne L.

Ellington & Jeanine Blackett Lutzenhiser, In Washington State, Open Courts

Jurisprudence Consists Mainly of Open Questions, 88 WASH. L. REV. 491, 519 n.194

(2013) (citing Interview with the Hon. Susan Craighead, King County Superior Court,

in Seattle, Wash. (Dec. 1, 2011 ); Interview with the Hon. Anne Ellington, Washington

State Court of Appeals, in Seattle, Wash. (Dec. 29, 2011 )). We should not so

disempower our trial judges. Because these issues may arise in every criminal case,

we should provide further guidance to avoid the wasted resources inherent in retrials.

B. History will often lean in favor of closure

Finally, the logic and experience test is harmful because it has justified and will

likely continue to justify closures. A survey of what Washington judges have done "at

chambers" since statehood reveals that in-chambers conferences to discuss legal

matters have long been seen as constitutional and within the discretion of the trial

judge. Ellington & Lutzenhiser, supra, at 517-18 & n.193 (citing In re Oet. of Ticeson,

159 Wn. App. 374,384-85,246 P.3d 550 (2011), abrogated on other grounds by

12
No. 85809-8 (Wiggins, J., concurring in result)

Sublett, 176 Wn.2d at 71-72). Because the experience and logic test calls for review

of historical practices, it is possible that most such proceedings will eventually be

excluded from the public. 6 Indeed, our court and the Court of Appeals have applied

the test to limit the public trial right. See majority at 2 (sidebars); Koss, No. 85306-1

(preliminary in-chambers conferences to discuss jury instructions); Sublett, 176

Wn.2d at 76, 77 (public trial right does not attach to conference to discuss question

from jury about its instructions); see also State v. Miller, 179 Wn. App. 91, 316 P.3d
1143 (2014) (public trial right does not attach to pretrial in-chambers discussion of

statute or in-chambers discussion of proposed jury instruction); State v. Burdette, 178
Wn. App. 183, 313 P.3d 1235 (2013) (in-chambers discussion about responses to

jury's question about an instruction or to initial jury question requesting clarification

about how to proceed if it felt it was deadlocked); State v. McCarthy, 178 Wn. App. 90,
312 P.3d 1027 (2013) (trial court's response to jury's request for a tape measure and

masking tape); Love, 176 Wn. App. 911 (parties' use of peremptory and for-cause

challenges at a sidebar); State v. Halverson, 176 Wn. App. 972, 309 P.3d 795 (2013)

(in-camera questioning of impaneled juror for alleged misconduct during

deliberations), review denied, 179 Wn.2d 1016 (2014); Wilson, 174 Wn. App. 328

6
Strangely, history informs the inquiry at times and is ignored other times. For example, in-
chambers voir dire appeared to be a common practice before Strode, 167 Wn.2d 222. See
Lauren A. Rousseau, Privacy and Jury Selection: Does the Constitution Protect Prospective
Jurors from Personally Intrusive Voir Dire Questions?, 3 RUTGERS J.L. & URB. PoL'Y 287, 311
(2006) (author surveyed 18 federal judges; "[v]irtually all" of them allowed potential jurors to
answer intrusive or embarrassing questions "privately at the bench or in chambers, with only
the judge, the court reporter, and the opposing counsel present"). Yet, the majority held in
Paumier and Wise that voir dire must be conducted in an open court. See Paumier, 176
Wn.2d at 35; Wise, 176 Wn.2d at 11-12.

13
No. 85809-8 (Wiggins, J., concurring in result)

(excusal of jurors for illness-related reasons). In light of these cases, we should

reevaluate and abandon the logic and experience test.

IV. We Should Presume All Stages of Trial Are Open

I would reject the logic and experience test as a well-intentioned but ultimately

unworkable test. Instead, I would hold that all phases of trial are presumed open. I

would reiterate that a judge should not close any step in the proceeding without

engaging in a Bone-Club analysis. If there is a timely objection, a trial judge must

conduct a Bone-Club analysis on the record before closing a proceeding.

If part of the trial has been closed to the public without objection and without a

Bone-Club analysis, an appellate court will usually not review the issue unless a party

can establish "manifest error affecting a constitutional right." RAP 2.5(a)(3). In

evaluating whether a trial closure is "manifest error," I would require an adequate

record as well as a showing of actual prejudice. In an extreme case, such as closure

of the entire voir dire process, the court could evaluate whether the closure has so

undermined our confidence in the outcome of the trial that the closure should be

considered "structural error."

A. Benefits of requiring an objection at trial: clear rule for trial judges and fairness

Unlike the logic and experience test, requiring an objection at trial provides

clear guidance to trial court judges that they should not close any part of trial without

conducting a Bone-Club analysis. Instead of drawing arbitrary lines between different

types of proceedings, this rule properly places responsibility on trial attorneys to

prepare their cases and make objections on the record. It also reduces strategic

failures to object solely for purposes of appeal. Our current practice of automatically

14
No. 85809-8 (Wiggins, J., concurring in result)

reviewing every claimed violation of the public trial right could create an incentive for

trial counsel to sit mute, deliberately not raising a constitutional error that might have

little or no effect on trial but that may be the basis for a successful appeal. In sum, a

requirement that defense counsel object preserves the integrity of the trial and

reduces unnecessary appeals.

Relatedly, requiring an objection in most cases is fair because this rule

acknowledges that there are sometimes tactical reasons not to object. In many

situations, both parties might willingly consent to closing part of a trial or, indeed, might

prefer it. In State v. Shearer, a case involving a domestic dispute, juror 7 indicated

that she had experience with domestic violence but did not want to talk about it. The

trial judge asked if anyone objected to questioning juror 7 in chambers, and neither

the defense nor the state objected. In chambers, juror 7 revealed that her grandson

was killed by his father in their home. Defense moved to dismiss juror 7 for cause,

the State did not object, and juror 7 was excused. State v. Shearer, No. 86216-8, slip

op. at 3-4 (Wash. Sept. 25, 2014). In S/ert, the lead opinion notes that "[q]uestioning

the jurors about their disqualifying knowledge in open court in front of the other jurors

could have been potentially devastating to Slert's right to a fair trial." Slert, slip op. at

10. I would hold that neither party should be permitted to benefit by silently allowing

the trial judge to close a portion of the trial without a Bone-Club analysis. See State

v. Rinkes, 70 Wn.2d 854, 859, 425 P.2d 658 (1967) ("The general rule is that one

cannot voluntarily elect to submit his case to the jury and then, after an adverse

verdict, claim error which, if it did exist, could have been cured or otherwise

15
No. 85809-8 (Wiggins, J., concurring in result)

ameliorated by some action on the part of the trial court."); State v. Perry, 24 Wn.2d

764, 167 P.2d 173 (1946); State v. Case, 49 Wn.2d 66, 72, 298 P.2d 500 (1956).

B. On appeal, benefits of requiring an objection: establishes a record, abides by
our rules of appellate procedure, and protects the public trial right

Requiring an objection in most cases has the benefit of developing an adequate

record for appeal. We have before us two other cases in which the record fails to

make clear whether there has been a violation of the public trial right: State v. Koss,

No. 85306-1 (Wash. Sept. 25, 2014), and State v. Njonge, No. 86072-6 (Wash. Sept.

25, 2014 ). In each case, the record is inadequate because neither the parties nor the

trial court raised the public trial right. 7 An objection by a party provides a forceful

reminder that a Bone-Club analysis and an adequate record are both required. In

addition, requiring an objection properly acknowledges that it is the duty of the parties

to raise any objection and to establish a record of closure, thereby enabling adequate

and full review on appeal.

When a party appeals a closure to which there was no objection, we should

apply RAP 2.5(a)(3), which applies to constitutional errors to which there was no

objection at trial:

The appellate court may refuse to review any claim of error which was
not raised in the trial court. However, a party may raise the following

7
ln Koss,. the defendant claimed that the court held an in-chambers conference to discuss a
question from the deliberating jury. But the record only showed that the jury exited, submitted
a question and received an answer, and then returned with its verdict. The record does not
reveal whether the judge discussed the question with counsel. See Koss, slip op. at 9-1 0. In
Njonge, the defendant claimed the judge closed the courtroom to the public and media during
voir dire. The record indicates that the judge explained that there was not enough room in
the courtroom to accommodate all of the prospective jurors and the public, and stated that he
would not permit the press to film the jury selection process. But no observer was actually
asked to leave, there were no objections to the voir dire procedure, and there were no orders
relating to a closure. Njonge, slip op. at 4-5.

16
No. 85809-8 (Wiggins, J., concurring in result)

claimed errors for the first time in the appellate court: ... (3) manifest
error affecting a constitutional right.

When a party alleges constitutional error for the first time on appeal, we have

traditionally required a RAP 2.5(a)(3) analysis. See, e.g., State v. Kirkman, 159 Wn.2d

918, 926-27, 155 P.3d 125 (2007) (RAP 2.5(a)(3) analysis required where error

affecting right to trial by impartial jury was raised for first time on appeal); State v.

Clark, 139 Wn.2d 152, 155-56, 985 P.2d 377 (1999) (RAP 2.5(a)(3) analysis required

where error affecting confrontation clause right was raised for first time on appeal).

The party claiming error must identify the constitutional error and show that the error

is manifest. State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). "Manifest"

requires a showing of actual prejudice; that is, the defendant must show the error '"had

practical and identifiable consequences in the trial of the case."' !d. at 99 (internal

quotation marks omitted) (quoting State v. Kirkman, 159 Wn.2d 918, 925, 155 P.3d

125 (2007)).

Our Rules of Appellate Procedure properly limit the types of constitutional

claims that may be raised for the first time on appeal. Constitutional errors require

special appellate attention because they risk serious injustice to the accused as well

as adverse effects on the public's perception of fairness and the integrity of judicial

proceedings. State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988) (citing State v.

McHenry, 88 Wn.2d 211, 558 P.2d 188 (1977)). On the other hand, "permitting every

possible constitutional error to be raised for the first time on appeal undermines the

trial process, generates unnecessary appeals, creates undesirable retrials and is

wasteful of the limited resources of prosecutors, public defenders and courts." State

17
No. 85809-8 (Wiggins, J., concurring in result)

v. Lynn, 67 Wn. App. 339, 343-44, 835 P.2d 251 (1992). A judicious application of the

"manifest" standard balances these competing values. /d. Thus, as the plurality

opinion in Sublett properly noted, under RAP 2.5(a)(3), we will review an alleged

manifest error affecting a constitutional right even if not raised in the trial court. 176

Wn.2d at 78. "But for relief to be granted, [a defendant] must show actual prejudice

resulting from the error, and the error is nonetheless subject to harmless error review."

/d. (citing O'Hara, 167 Wn.2d at 98-99).

Finally, requiring an objection protects the public trial right by reminding the trial

court and all parties of the importance of this right. In our earlier decisions, we

assumed we could best protect the public trial right by allowing parties to raise the

issue for the first time on appeal. Paumier, 176 Wn.2d at 36-37. But requiring an

objection has proved to be equally or even more protective of the public trial right. A

contemporaneous objection permits the trial judge to resolve the issue when it should

be resolved-at trial. An objection reminds the judge not to close any step in the trial

process without engaging in a Bone-Club analysis. In other words, the objection

protects the public trial right by forcing the trial judge to evaluate the issue and

reassess whether to close a part of the trial or not. It puts the decision and the ability

to establish a record in the hands of the defendant. In addition, our prior latitude in

not requiring an objection is no longer needed because the many recent published

decisions discussing the open trial right should have alerted most, if not all, defense

counsel to the importance of the issue. It would be a rare defense attorney in

Washington who remained unaware of the public trial right after our 14 opinions

concerning the issue published since 2012. See Ellington & Lutzenhiser, supra, at

18
No. 85809-8 (Wiggins, J., concurring in result)

497 (public trial issue so familiar that "Bone-Club" is now a verb in Washington

courtrooms).

CONCLUSION

We face a plethora of public trial rights ~ases that test our court's two-prong

logic and experience analysis. And unfortunately, the logic and experience analysis

fails the test. As the body of public trial case law expands, the larger database

provides an increasingly clear demonstration of the logic and experience test's

shortcomings. Even "easy" applications of the test are no longer so easy, and the

more troublesome applications are only beginning to arise. These cases demonstrate

the defects in the logic and experience test: the uncertainty of what constitutes "logic"

and "experience" and the inability of the test to consistently protect against errors of

constitutional import. We will continue to deal with confusion spawned by this test

should we adhere to our precedent. For the sake of courts, victims, defendants, and

public confidence, we should provide much needed guidance and reiterate that all

phases of trial are presumed open and should not be closed without a Bone-Club

analysis on the record. I concur in affirming the Court of Appeals, but I would so hold

because Smith did not object at trial, and he has not satisfied the requirements of RAP

2.5(a)(3).

19
No. 85809-8 (Wiggins, J., concurring in result)

I concur in result.

20
State v. Smith

No. 85809-8

OWENS, J. (dissenting) -- During William Glen Smith's trial, the judge and

attorneys left the courtroom and gathered in a nearby hallway to hold private meetings

on 12 occasions. 1 The attorneys made motions to exclude testimony and argued over

the extent of questioning allowed with certain witnesses, and the judge made rulings

regarding the admissibility of evidence and testimony. Those rulings helped shape the

course of the trial, yet neither the public nor the defendant witnessed them.

The majority condones this secretive process, failing to consider the purposes

behind our constitutional protection of the right to a public trial. Our constitution

protects the right to a public trial and demands the open administration of justice

because they are core safeguards in our system of justice. A public trial helps to

ensure a fair trial by deterring misconduct and partiality. Also, as this court has said

before, a public trial "provides for accountability and transparency, assuring that

1
The judge closed the courtroom on one other occasion to discuss when to take a recess.
Smith does not argue that this closure implicated his right to a public trial.
State v. Smith
No. 85809-8
Owens, J., Dissenting

whatever transpires in court will not be secret or unscrutinized. And openness allows

the public to see, firsthand, justice done in its communities." State v. Wise, 176

Wn.2d 1, 6, 288 P.3d 1113 (2012). The secret and unscrutinized conferences in this

case violated Smith's right to a public trial. I dissent.

FACTS

During Smith's trial, the judge and the attorneys held 12 private meetings in a

back ha'ilway. The majority dismisses these closures as "sidebars," but that

generalization mischaracterizes the nature of these meetings. 2 The following

summary shows that these discussions were challenges to evidence and testimony

during trial, and-as explained below-experience and logic dictate that these

discussions implicate the public trial right:

1. The court clarified a previous ruling regarding the admissibility of ER
404(b) evidence of a common scheme and overruled defense counsel's
objection to testimony of a prior bad act.

2. Parties argued over whether one alleged victim could testify that she spoke
with another alleged victim on the phone. The court overruled the prosecutor's
relevancy objection and allowed the testimony.

3. Parties argued over whether a lay witness may offer opinion testimony and
whether circumstantial evidence of the alleged victim's mental capabilities was
admissible. The court excluded the opinion testimony but ruled that the
circumstantial evidence was admissible.

2 True sidebars are generally permissible-especially when held in open court. See State
v. Sublett, 176 Wn.2d 58, 140,292 P.3d 715 (2012) (Stephens, J., concurring) (condoning
"brief sidebars to allow counsel to raise concerns that may need to be taken up outside the
jury's presence").

2
State v. Smith
No. 85809-8
Owens, J., Dissenting

4. Parties argued over whether the alleged victim could be impeached with a
prior inconsistent statement. The court overruled the prosecutor's objection
and allowed the question.

5. Parties argued over whether a detective was qualified to offer an opinion of
handwriting found in the defendant's car. The court sustained defense
counsel's objection and did not allow the opinion testimony.

6. In the hallway, the prosecutor preemptively moved to exclude Smith's
statement to police that the sex was consensual as self-serving hearsay, but
prior to the conclusion of the argument the court recessed. Then in open court,
but before the jury returned, the court ruled that the statement was admissible to
show that it was made, but not for the truth of the matter asserted.

7. Parties argued whether a police photograph of the alleged victim was
inadmissible for lack of relevance. The court sustained the prosecutor's
objection and ruled that the photograph was inadmissible.

8. Parties argued over the admissibility of Smith's written statement because it
was prepared by police and then adopted by the defendant. The court overruled
defense counsel's objection and ruled that the statement was admissible.

9. Parties argued over whether the treating physician could testify about the
alleged victim's identification of the perpetrator. The court ruled that the
testimony was inadmissible but defense counsel could impeach the alleged
victim using it as a prior inconsistent statement.

10. Parties argued over whether the prosecutor had laid proper foundation to
admit nude photographs of the alleged victim. The court overruled defense
counsel's objection and ruled that the photographs were admissible.

11. The prosecutor moved to admit receipts for lingerie and other sexual items
found in Smith's residence. The court overruled defense counsel's objection
and ruled that receipts of sexual items found by the detective were admissible.

12. Parties argued over whether the prosecutor could ask Smith if he told his
wife he did not sleep with the alleged victim. The court overruled defense
counsel's objection and allowed the question to show that Smith may have lied.

3
State v. Smith
No. 85809-8
Owens, J., Dissenting

These closures occurred over the course of a three-day trial. The jury convicted Smith

of four counts of third degree rape and one count of second degree perjury.

ANALYSIS

The majority concludes that the public trial right does not attach to the closures

in this case. I disagree. The public trial right attaches to proceedings that implicate

the core values of the public trial right. State v. Sublett, 176 Wn.2d 58, 72-73, 292

P.3d 715 (2012). We apply the experience and logic test to determine whether those

core values are implicated. Id. at 73. If the public trial right attaches, the failure to

conduct a Bone-Club 3 analysis on the record before closing the courtroom is structural

error. Wise, 176 Wn.2d at 13-14. In this case, experience and logic indicate that

closing the courtroom to discuss evidence and testimony during trial implicates the

public trial right. 4 The trial court did not conduct a Bone-Club analysis, and therefore

structural error occurred.

Experience Prong

The experience prong asks "'whether the place and process have historically

been open to the press and general public.'" Sublett, 176 Wn.2d at 73 (quoting Press-

3
State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995) (describing the
analysis that a trial judge must make before closing the courtroom).
4 Smith does not argue that the first private meeting to discuss a time for recess implicates

the public trial right, and I agree that it does not.

4
State v. Smith
No. 85809-8
Owens, J., Dissenting

Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735,92 L. Ed. 2d 1 (1986)).

The majority erroneously concludes that "[s]idebar conferences have historically

occurred outside the view of the public." Majority at 7. That conclusion

oversimplifies the matter because the history on this issue is, at best, unclear.

In my experience, many judges do not close or leave the courtroom to discuss

evidentiary challenges. Rather, many judges exclude the jury and discuss the matter

in open court. This practice dates back to the early days of our judiciary. See State v.

Coella, 3 Wash. 99, 118,28 P. 28 (1891) (holding that defendant did not have aright

to have the jury present during argument over proposed jury instructions; rather, "the

safer course and better practice would be to exclude the jury"); Gilcher v. Seattle Elec.

Co., 82 Wash. 414,415, 144 P. 530 (1914) ("[I]t is within the discretion of the trial

judge to exclude the jury during the argument of counsel upon legal questions arising

during the trial."); see also State v. Cooper, 26 Wn.2d 405, 416, 174 P.2d 545 (1946)

(trial judge sent the jury out so the court could hear argument after co-defendant made

a sudden request to "'verify"' a confession as it was being read); State v. Barker, 56

Wash. 510, 511-12, 106 P. 133 (1910) (trial judge sent the jury out so the court could

discuss an objection to witness testimony); State v. Carlson, 80 Wn. App. 116, 120,

906 P.2d 999 (1995) (same).

The judges who choose to discuss evidentiary challenges outside of the

courtroom do so out of mere convenience. See, e.g., State v. Smith, noted at 159 Wn.

5
State v. Smith
No. 85809-8
Owens, J., Dissenting

App. 1011, 2011 WL 55972, at *2 n.2, 5 review granted in part, 176 Wn.2d 1031, 299

P.3d 20 (2013); In re Det. ofTiceson, 159 Wn. App. 374, 386 n.38, 246 P.3d 550

(2011) (relied on by the majority at 7-8; justifying an in-chambers sidebar because

interrupting trial to send the jury out could cause "long delays"). The majority

condones this practice, preferring not to annoy jurors with "constant[] marching in

and out of the courtroom" at the expense of our constitutional duty to ensure a public

trial. Majority at 12 n.l3.

Our constitution cannot bow to convenience. See State v. Frawley, No. 80727-

2, slip op. at 8 (Wash. Sept. 25, 2014) (lead opinion) (stating that a Bone-Club

analysis "ensures that court proceedings are not closed merely for the sake of

convenience as a matter of course"). A trial judge has the constitutional duty to

ensure that trials are open to the public, even if that means that the jury must enter and

exit the courtroom several times during evidentiary discussions. I also note that in

this case the court held 12 private meetings over the course of three days. I see no

great burden in removing and reseating a jury approximately four times a day to carry

out the commands of our constitution. And, if a judge does face a serious obstacle to

5
The Court of Appeals noted, "The practical configuration of the courtroom prompted
the judge and attorneys to go outside because they could not record a conversation at the
bench without the jury overhearing. It was a matter of convenience. Rather than having
the jury exit the courtroom, the judge and attorneys would step outside to discuss the
evidentiary and legal matters that arose during trial." Smith, 2011 WL 55972, at *2 n.2.

6
State v. Smith
No. 85809-8
Owens, J., Dissenting

removing the jury, a contemporaneous Bone-Club analysis, on the record, could

justify the closure.

The majority does little to refute the fact that many Washington courts have

historically kept the courtroom open during evidentiary challenges. It cites two trial

advocacy treatises that do not consider the special requirements of our state's

constitution and one case from this court that has nothing to do with private

evidentiary discussions. Majority at 7 (citing State v. Swenson, 62 Wn.2d 259, 272,

382 P.2d 614 (1963) (permitting a sidebar discussion to discuss witness comfort, not

to discuss challenges to evidence or testimony)). While I know that some courts have

developed a local practice of closing or leaving the courtroom during evidentiary

challenges, I caution that when applying the logic and experience test, we must not

forget that the presumption is in favor of openness. State v. Paumier, 176 Wn.2d 29,

34-35, 288 P.3d 1126 (2012). Therefore, to the extent that history or local practice

conflicts, we must err on the side of openness. While this court has recognized that

the experience and logic test is not perfect, Sublett, 176 Wn.2d at 75, we have never

questioned the presumption of openness. Experience indicates that the evidentiary

challenges involved in this case have been historically open to the press and public.

Logic Prong

"The logic prong asks 'whether public access plays a significant positive role in

the functioning of the particular process in question."' !d. at 73 (quoting Press-Enter.,

7
State v. Smith
No. 85809-8
Owens, J., Dissenting

478 U.S. at 8). The majority concludes that "[n]othing is added to the functioning of

the trial by insisting that the defendant or public be present" during the discussions at

issue. Majority at 13. The majority reasons that defendants do not have a right to be

present at all stages, and for the public, some legal discussions are "practically a

foreign language." Id. I disagree. The majority overlooks the very purposes of the

right to an open and public trial.

A public trial helps ensure that judges and lawyers are accountable for what

occurs during trial. It helps remind them to act with decorum and to consider the

consequences of their actions. Logically, this is perhaps most important during

arguments over what evidence and testimony the jury will hear. Whether a key piece

of evidence is admitted or not could decide the outcome of the entire trial. We should

not allow attorneys and judges to make these important decisions in a back hallway,

away from public scrutiny. The proper forum for argument on these issues is in open

court.

Public trials also help foster trust in our judicial system, and they allow

members of the public to see justice done in their communities. Logic indicates that

hiding discussions over evidence and testimony in private will not further these goals.

One can easily imagine a scenario where a party attempts to admit a key piece of

evidence-the "smoking gun"-only to be met with an objection and a private

conference where the judge determines that the evidence is inadmissible. The public

8
State v. Smith
No. 85809-8
Owens, J., Dissenting

is left wondering what happened to the smoking gun mentioned just moments ago and

why the jury is being told to forget that it ever existed. Logically, it follows that the

public's trust in our justice system will weaken.

I also disagree with the assumption that the public will not comprehend the

"foreign language" of legal argument. !d. Trial observers often include close family

members of the defendant or the victims who have followed the case from the very

start. These observers may have met with the attorneys or have researched the law

independently and are eager to hear the legal arguments that could decide the case.

Additionally, many practitioners and students attend trials to learn and to see justice in

action. We should not allow the trial court to obscure legal discussions from these

observers.

Without the publicity that comes with hearing evidentiary arguments in open

court, a defendant is stripped of the protections offered by our public trial right and

the public's confidence in our judicial system is weakened. Logic indicates that

public access plays a significant positive role in the functioning of these evidentiary

discussions.

CONCLUSION

Experience and logic show that the public trial right attaches to the evidentiary

discussions in this case. Therefore, the trial court committed structural error when it

closed the courtroom on 12 occasions without first conducting a Bone-Club analysis.

9
State v. Smith
No. 85809-8
Owens, J., Dissenting

In concluding otherwise, the majority fails to consider the core values that our public

trial right protects and favors convenience over our constitution. I respectfully

dissent.

10
State v. Smith
No. 85809-8
Owens, J., Dissenting

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11