¶22 (dissenting) — GR 31(j) provides for individual juror privacy consistent with a defendant’s right to a fair public jury trial. Nicholas Duckett contends, for the first time on appeal, that his second degree rape conviction should be reversed because the trial court violated his public trial rights by following the procedure he agreed to for his benefit. Under RAP 2.5(a)(3) he does not show a manifest constitutional error. Moreover, as explained below, I do not believe Mr. Duckett fairly characterizes the process used as a “closure” within public trial boundaries. In my *810view, no public trial “closure” has occurred since the information was initially confidential under GR 31(j).
¶23 In open court, in Mr. Duckett’s presence, the judge explained to the jury without any objection: “The purpose of having a juror questionnaire ... is to ask that you answer some questions that are somewhat of a personal nature in confidence.” Report of Proceedings (RP) (Aug. 14, 2006) at 14. The judge elaborated: “The original questionnaires will be filed in our court file under seal. That means they are not accessible by anybody without a court order.” Id. The materials resulting from “privately” talking to the jurors about their responses “will be collected from the lawyers and destroyed.” Id. The judge then read the questions in open court. Sixteen jurors responded positively to the questionnaire. The judge assured the jurors the confidential questionnaire answers would be used in questioning those responding positively, but the interview process would be conducted “privately” and the materials generated would be collected and destroyed. Id.
¶24 Later, the judge told the parties that she generally conducted private questioning of questionnaire responses “in [her] jury room ... so as to maintain some privacy.” Id. at 46. Defense counsel then told the judge that he had talked with Mr. Duckett and Mr. Duckett did not want to be present during that questioning. The judge informed Mr. Duckett he had “a right to be present,” and Mr. Duckett responded he agreed with his attorney and he would not be present to obtain “general [juror] knowledge.” Id. at 47. All other jury questioning was conducted in open court in full public view.
¶25 RAP 2.5(a) precludes considering issues for the first time on appeal. RAP 2.5(a)(3) accepts a manifest error affecting a constitutional right. The first test used for deciding the applicability of RAP 2.5(a)(3) (conceded here) is “ ‘whether the alleged error is truly constitutional.’ ” State v. Kronich, 160 Wn.2d 893, 899, 161 P.3d 982 (2007) (quoting State v. Kirkpatrick, 160 Wn.2d 873, 879-80, 161 P.3d 990 (2007)). The second test requires determining whether the *811error is “manifest” and involves deciding whether the error had “ ‘practical and identifiable consequences in the trial of the case.’ ” Id. (internal quotation marks omitted) (quoting Kirkpatrick, 160 Wn.2d at 879-80). Purely formalistic errors are not manifest. Id. In my view, Mr. Duckett fails the second test.
¶26 The claimed error is “formalistic” and without “practical and identifiable consequences in the trial of the case” since the questionnaire answers were confidential from the outset by court rule and were not open to the public. Therefore, exploring confidential answers to the questionnaires in a limited setting open to the parties and their counsel does not present a public trial issue except in a strained and formalistic sense. Nothing in this process undermined the public’s trust and confidence in the case outcome or disturbed Mr. Duckett’s rights. Indeed, the process enhanced Mr. Duckett’s opportunity to receive a fair trial by encouraging maximum juror participation and candor. Mr. Duckett points to no practical and identifiable consequence to him of the court’s chosen procedure.
¶27 Under GR 31(j) individual juror information collected by the court “other than name, is presumed to be private.” Further, “[t]he court may require that juror information not be disclosed to other persons.” GR 31(j). In balance, GR 31( j) provides a procedure for disclosing “individual juror information under the control of the court” to listed persons including a member of the public on showing “good cause” after trial conclusion. Public trial principles and fair trial principles are maintained in balance with public expectations and juror confidentiality interests. The flaw in Mr. Duckett’s closure argument is that it is incorrectly premised on the proposition that the confidential materials were open to the public from the outset. But, considering GR 31( j), one cannot close what is not open.
¶28 Yes, a criminal defendant has a constitutional right to a public trial, including jury selection. In re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004). There the trial court excluded Mr. Orange’s family *812(and the public, including spectators) from general voir dire over his objection because of space limits. Notably, the Orange court did not discuss or decide whether private juror questioning about confidential questionnaire responses violated Mr. Orange’s public trial rights. Our case is far different. First, unlike Mr. Orange, Mr. Duckett did not object to the procedure but believed it advantageous to him. Second, the judge explained the process and the purpose was to maintain juror privacy, not to address a space limitation like in Orange. Third, Mr. Duckett’s attorney counseled him about the situation and Mr. Duckett waived his presence; Mr. Orange objected. Fourth, the time involved here was very limited compared to the two day closure in Orange.
¶29 While I believe our case differs somewhat from State v. Frawley, 140 Wn. App. 713, 724, 167 P.3d 593 (2007) (Brown, J., dissenting), because I do not believe any closure occurred, it probably does not matter. On the other hand, some of the similarities concern me. The judge never actually ordered the public excluded or the courtroom closed. We do not know if any members of the public were actually present when the procedures were discussed and adopted or may have been excluded. No public objections are recorded. Recently, these similarities helped influence Division One of this court to reject public trial defect contentions in State v. Momah, 141 Wn. App. 705, 716, 171 P.3d 1064 (2007) (declining to follow Frawley to the extent it “holds that all in-chambers proceedings are per se closed to the public”).
¶30 In sum, the judge’s chosen procedure is consonant with the reasoning in Orange. The judge identified a compelling interest, used the least restrictive means to achieve that purpose, informed Mr. Duckett of his right to be present, and explained the process in open court without objection from Mr. Duckett or any member of the public who might have been present. Granted, the process was not perfect, it never is, but the process comported well with accepted fair trial principles. GR 31(j) partly encourages *813public participation in our jury system by assuring reasonable juror privacy in confidential juror information, but it also observes public trial principles by providing a process to review public requests for juror information. In my view, no “closure” occurred by following the privacy requirements of GR 31( j) because the questioned process was not open to the public from the outset. If any balancing of principles were called for, this judge struck the balance well within reasonable fair trial limits.
¶31 I would affirm. Accordingly, I respectfully dissent.