¶11 (concurring) — Like in the companion case, In re Personal Restraint of Coggin, 182 Wn.2d 115, 340 P.3d 810 (2014) (plurality opinion), I agree with the lead opinion’s decision to deny Roland Speight’s personal restraint petition, but for different reasons. First, I believe that this court must decide whether motions in limine implicate the public trial right, and I would decide this question in the negative. Second, I would hold that Mr. Speight invited the judge to conduct portions of voir dire in chambers. Thus, in contrast to the lead opinion and in line with my concurrence in Coggin, I believe we need not determine the prejudice showing required of personal restraint petitioners.
¶12 Nevertheless, because guidance is needed I would agree with the majority that the error here, failure to engage in the analysis outlined in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), requires a petitioner in a personal restraint petition to prove prejudice unless he can demonstrate that the error in his case “ ‘infect [ed] the entire trial process’ ” and deprived the defendant of “ ‘basic protections,’ ” without which “ ‘no criminal punishment may be regarded as fundamentally fair.’ ” Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Rose v. Clark, 478 U.S. 570, 577, 578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)).
Discussion
¶13 In contrast to the companion case, here the petitioner alleges two different public trial right violations. *109First, he challenges the trial court’s decision to hear argument on motions in limine in chambers rather than in the courtroom, alleging that this behavior implicated his right to a public trial. While venire members were filling out questionnaires in the courtroom, the parties and the judge discussed motions in limine on the record in chambers. The State moved to bar the defendant from inquiring about the alleged victim’s drug convictions. The defense brought several motions, including motions for the State to disclose certain information, to exclude mention of prior contact between the defendant and complainant, and to exclude mention of the defendant’s mental disorder. In addition to challenging the judge’s consideration of these motions in limine in chambers, Mr. Speight also makes an identical argument as Mr. Coggin, namely that the in-chambers voir dire questioning of some venire members violated his public trial rights. In particular, the trial court conducted voir dire in chambers for 14 prospective jurors who had indicated a preference for private questioning on their written questionnaire.
¶14 In State v. Smith, this court outlined a three-step inquiry to assess alleged public trial right violations. 181 Wn.2d 508, 513, 334 P.3d 1049 (2014) (citing State v. Sublett, 176 Wn.2d 58, 92, 292 P.3d 715 (2012) (plurality opinion) (Madsen, C.J., concurring)). We first consider whether the public trial right is even implicated and only then determine whether there was in fact a closure and, if so, whether that closure was justified. Id. The lead opinion acknowledges this framework but does not use it to evaluate the petitioner’s motion in limine challenge. Lead opinion at 106. Instead, the lead opinion reasons that “[s]ince jurors were privately questioned, a closure occurred, and we need not decide whether a second closure exists in this case.” Id. I disagree with this analysis. The petitioner raises two separate public trial right violations, each of which must be separately analyzed. Before reaching the question of whether petitioners must prove prejudice for collateral *110challenges to public trial rights, this court should consider, first, whether the petitioner may be precluded from bringing the challenge due to invited error or affirmative waiver and, second, following the three-step analysis, whether his public trial rights were violated.
¶15 Turning first to the motion in limine issue, I would hold that under the first prong of the Smith analysis, motions in limine do not implicate public trial rights. As the lead opinion recognizes, under Smith’s first step we use “the experience and logic test to evaluate whether a particular proceeding implicates the public trial right.” Id. (citing Sublett, 176 Wn.2d at 73).
¶16 “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.’ ” Sublett, 176 Wn.2d at 73 (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press II)). Motions in limine concern interlocutory pretrial decisions made by the trial court, typically involving legal questions about the admissibility of certain evidence. Often these pretrial decisions will be revisited during the course of proceedings as the evidence develops. As with rulings on contemporaneous objections to evidence, motions in limine are decided outside the hearing of the jury. See ER 103.
¶17 In Smith, this court applied the experience and logic test to hold that sidebar conferences involving evidentiary rulings on contemporaneous objections do not implicate the public trial right. Smith, 181 Wn.2d at 514-19. There, we noted the history of conducting sidebars out of view of the public and the practical difficulties with removing jurors from a courtroom. Id. at 515-16. The reasoning in Smith applies here. During voir dire in Speight’s case, the venire members were using the courtroom to fill out juror questionnaires before counsel began voir dire questioning in court. The trial judge used this downtime to discuss motions in limine in chambers rather than moving jurors in and out of the courtroom multiple times.
*111¶18 The second part of the test, 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 II, 478 U.S. at 8). “The guiding principle [for the logic prong] 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.’ ” Smith, 181 Wn.2d at 514-15 (second alteration in original) (internal quotation marks omitted) (quoting Sublett, 176 Wn.2d at 75). For motions in limine, I believe the answer to these questions is no. In Smith, this court reasoned that sidebars do not “invoke any of the concerns the public trial right is meant to address regarding perjury, transparency, or the appearance of fairness.” Id. at 518. Specifically, we noted that the sidebars at issue were immediately recorded and made available to the public and emphasized the dense legal nature of the questions considered during such discussions. Id. at 518-19. The same reasoning applies in the motion in limine context. Here, the motions in limine considered in chambers were contemporaneously recorded verbatim. Thus, the public was not denied access to the proceedings. As with sidebars, the presence of the public would not have added anything to the discussion between the judge and counsel regarding questions of admissibility under the rules of evidence.
¶19 Applying the experience and logic test, I would hold that as long as these discussions occur on the record and concern primarily evidentiary matters, the public trial right does not attach.
¶20 Turning to the petitioner’s second public trial right allegation, I would hold that Mr. Speight invited the error of conducting voir dire interviews in chambers. As I outline in my concurrence in the companion case, Coggin, in the voir dire context the key inquiry is whether the defendant “ ‘actively participated’ ” in the conduct that led to the error. Coggin, 182 Wn.2d at 124 (quoting State v. Wise, 176 Wn.2d 1, 15 *112n.8, 288 P.3d 1113 (2002)). In State v. Momah, we reasoned that invited error principles applied where defense counsel agreed beforehand to a juror questionnaire that permitted individual questioning, never objected to the proposal to conduct this questioning in chambers (presumably because the private questioning benefited his client), and actively participated in the questioning. 167 Wn.2d 140, 145-46, 153-56, 217 P.3d 321 (2009); see also Wise, 176 Wn.2d at 15 n.8 (reaffirming that defendants can invite public trial violations, pointing to factors outlined in Momah). Similarly, here defense counsel participated in a pretrial telephone conference between the parties and the judge where they discussed the creation of a juror questionnaire that would allow jurors to note a preference for private questioning. Defense counsel then participated in the questioning of the 14 jurors that occurred in chambers without raising any objection. Though the language of the questionnaire did suggest an “in court” private questioning experience to the potential jurors, the totality of the circumstances demonstrate that the in-chambers questioning was in line with defense counsel’s expectations following the pretrial telephone call. Defense counsel did more than simply acquiesce to the trial court’s decision to conduct questioning in chambers; he spoke with opposing counsel and the judge about the need for a mechanism for private voir dire questioning, agreed to the questionnaire proposed by the prosecutor, did not question the judge’s decision to hold that private questioning in chambers, and in fact engaged in questioning the prospective jurors. By all accounts, defense counsel “actively participated” in the in-chambers questioning of jurors and consequently invited the public trial error that resulted.
¶21 In sum, I would address the petitioner’s motion in limine challenge but would hold that under our experience and logic test, motions in limine do not implicate public trial rights. I would also dismiss the petitioner’s challenge to the voir dire procedure on invited error grounds and thus would *113not reach the question of prejudice considered by the majority. I concur in the majority’s decision to deny Mr. Speight’s petition.