¶ 146. (dissenting). I join the reasoning set forth in Chief Justice Shirley S. Abrahamson's dissent concerning the public trial right guaranteed by the First Amendment. I write separately to focus on a defendant's Sixth Amendment right to a public trial and to address remedy in this context.
¶ 147. Courtroom closures, by their very nature, are extremely troubling. The circumstances under which a courtroom can be closed without violating a bedrock principle of our justice system — the right to a public trial — are rare. Travis Seaton and Nancy Pinno, the defendants in these consolidated cases, each asserts that voir dire proceedings during their criminal trials in Fond du Lac County were closed to the public apparently to make room for large jury venires. While these allegations alone are disconcerting, the record in Seaton's case demonstrates that these types of closures are apparently common practice in Fond du Lac County.1 If there is to be a courtroom closure, there must be consideration and application of the Waller2 factors because a defendant's Sixth Amendment right to *178a public trial is absolutely rooted in the essential underpinning of our judicial system: fairness.
¶ 148. Considering that the public trial right is such a fundamental concept to our criminal justice system, I cannot agree with the majority's conclusion that a criminal defendant's failure to make a contemporaneous objection results in his or her forfeiture of that right. Contrary to the majority opinion, I assert that a defendant's public trial right, guaranteed by both the Sixth Amendment3 and the Wisconsin Constitution,4 can be given up only if the defendant affirmatively voices a willingness to do so. I would therefore *179consider the right subject to waiver analysis. This conclusion results from consideration of the importance of the public trial right, the unique position of a violation of the right as a structural constitutional error, its concern with fairness, and persuasive authority from the United States Supreme Court and from other jurisdictions — all considerations that are minimized by the majority opinion.
¶ 149. In addition, I write separately to express my disagreement with the majority opinion's conclusion that prejudice should not be presumed when a claim of ineffective assistance of counsel is based on an alleged violation of the public trial right.51 recognize that under my use of waiver analysis, there would be no need to reach the ineffective assistance of counsel claims presented by these defendants. However, I am not persuaded by the majority opinion's discussion of the presumption of prejudice. At the outset, I agree with the majority that the presumption of prejudice is warranted under circumstances in which the harm of the error in question is difficult to measure. In contrast to the majority's position, however, I conclude that a public trial violation that occurs during voir dire is exactly the type of harm that may permeate an entire trial in incalculable ways. Therefore, contrary to the majority approach, I would presume prejudice in this context.
*180¶ 150. For these reasons, I respectfully dissent.
I. A CHALLENGE TO A PUBLIC TRIAL RIGHT VIOLATION, A STRUCTURAL CONSTITUTIONAL ERROR, CANNOT BE FORFEITED.
¶ 151. The majority opinion carefully and thoroughly sets forth many of the principles underlying the Sixth Amendment public trial right. For example, there is no dispute that the Sixth Amendment provides a criminal defendant with the right to a public trial and that this public trial right extends to voir dire.6 There is also no dispute that the Sixth Amendment public trial right, which serves four primary purposes, is not absolute.7 Additionally, I agree with the majority that under Waller, the remedy for a violation of the Sixth Amendment public trial right must be appropriate considering the nature of the specific violation at issue.8 Finally, I agree with the majority that some violations of the Sixth Amendment public trial right may be so trivial as *181not to warrant a remedy,9 and I emphasize that the alleged closures at issue in these cases are not trivial.
¶ 152. The majority opinion provides a limited discussion of the importance of the Sixth Amendment public trial right10 but does appear to recognize that the United States Supreme Court has included a violation of the right amongst a short list of structural constitutional errors, which are not subject to harmless error analysis.11 The importance of the Sixth Amendment public trial right and the status of a violation of the right as a structural constitutional error are the reasons I take issue with the majority opinion.
A. THE IMPORTANCE OF THE PUBLIC TRIAL RIGHT TO THE FAIRNESS OF CRIMINAL TRIALS
¶ 153. The Sixth Amendment public trial right results from the long-held belief that secret proceedings will not produce just results.12 Thus the public trial right has long been recognized by our federal government as well as by the overwhelming majority of state governments, including Wisconsin.13 Underlying this long-standing recognition of the public trial right is the concept that publicity ensures that criminal defendants *182receive fair trials.14 "Without publicity, all other checks are insufficient; in comparison of publicity, all other checks are of small account."15
¶ 154. Although the majority opinion sets forth four of the core values of the Sixth Amendment public trial right, it is worthwhile to set them forth again.
The [United States] Supreme Court has described four values furthered by the Sixth Amendment guarantee of a public trial: "(1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury."16
Although stated as four distinct values, each of these principles underlying the public trial right works to guarantee one fundamental concept of our criminal justice system: fairness. The United States Supreme Court's classification of a violation of the public trial right as a structural constitutional error further supports the contention that the public trial right is undoubtedly concerned with the fairness of criminal trials.
¶ 155. The United States Supreme Court divides constitutional errors into two categories.17 Most constitutional errors are categorized as trial errors.18 The *183effect of these types of errors on criminal trials can be determined by considering the error in light of all of the evidence presented to the jury; therefore, this category of constitutional errors is subject to harmless error analysis.19
¶ 156. In a smaller category of constitutional errors are those that are not subject to harmless error analysis, and these are referred to as structural errors or defects.20 In contrast to the effect of trial errors, the effect of structural errors on a trial cannot be determined because structural errors have the potential to taint the entire framework of a trial.21 The United States Supreme Court has repeatedly recognized that a violation of the public trial right is a defect that is structural in nature.22 In other words, while the specific effect of the error on the trial itself cannot be determined, the effects of a violation of the public trial right always have the potential to permeate the entirety of a criminal trial.
¶ 157. My emphasis on a violation of the public trial right as a structural constitutional error does not directly answer the important question of whether a forfeiture or a waiver analysis applies. However, this categorization, as I will explain, does inform my position on both the issue of whether waiver or forfeiture applies and the issue of whether prejudice should be presumed in an ineffective assistance of counsel claim. The designation of a public trial violation as structural *184error absolutely heightens the seriousness of this type of error when compared to constitutional violations categorized as trial errors. This is because, as noted above, the effect of a violation of the public trial right cannot be measured and always poses a threat to the fairness of the entire trial process.
¶ 158. It is these concepts — that the effect of a violation of the public trial right cannot be measured, and the public trial right's concern with fairness — that the majority fails to fully recognize. Instead of adhering to the two categories of constitutional errors established by the United States Supreme Court, namely trial errors and structural errors, the majority attempts to minimize the seriousness of a public trial right violation. It does so in two primary ways.
¶ 159. First, the majority opinion attempts to separate a violation of the public trial right from other structural errors and cast it into a category all its own. However, the majority's attempt to place the public trial right into a lesser category of structural constitutional rights is not supported by United States Supreme Court precedent.
¶ 160. It is of no importance that Waller, decided in 1984, did not use the phrase "structural error"23 because the categories of structural error and trial error were not defined or utilized until the Court's 1991 decision in Arizona v. Fulminante.24 While the Court had previously identified a very limited number of constitutional errors that were not subject to harmless error analysis, the Fulminante decision was the Supreme Court's first specific application of the dual categories (trial errors and structural errors) to its *185prior decisions.25 In Fulminante, the Supreme Court clearly relied on its prior decision in Waller when it included a public trial right violation as falling within the structural error category.26
¶ 161. I am also not persuaded that the United States Supreme Court's failure to use the phrase "structural error" in every case that addresses a violation of a structural constitutional right or the public trial right has any significance. In Presley, the Court applied Press Enterprise I and Waller to hold that the public trial right extends to voir dire.27 The fact that the Court did not engage in a discussion of structural constitutional errors in Presley cannot be read as an indication that the Court has, in any way, backtracked from its prior holdings, which squarely placed a public trial right violation in the category of a structural constitutional error.28
¶ 162. Second, the majority opinion repeatedly relies on its conclusion that a public trial right violation does not automatically result in unfairness or prejudice to the defendant.29 For example, the majority opinion states, "[T]he absence of the public does not automatically lead to misconduct or unfairness or any other circumstance prejudicial to the defendant."30 However, this statement completely disregards the fact that the effect of a public trial right violation cannot be deter*186mined. This is the very reason the United States Supreme Court has labeled this type of error a structural error.
¶ 163. Classification of a violation of the public trial right as a structural constitutional error does not answer the question of whether a waiver or forfeiture analysis applies. However, a discussion of the violation of the public trial right as a structural constitutional error highlights the importance of the public trial right and its concern with the fairness of criminal trials. Therefore, the discussion of a public trial right violation as a structural constitutional error informs my conclusion that waiver analysis is the applicable standard.
B. A DEFENDANT'S SIXTH AMENDMENT PUBLIC TRIAL RIGHT CANNOT BE FORFEITED.
¶ 164. The importance of the public trial right, its categorization when violated as a structural constitutional error, and its concern with fairness inform my position. I also find support in both Wisconsin precedent and in case law from other jurisdictions, that waiver31 rather than forfeiture should apply to a public trial right violation. Specifically, I find this court's recent decision in State v. Soto32 as well as the United States Court of Appeals for the Seventh Circuit's decision in Walton v. Briley33 to be strongly supportive of my position.
*187¶ 165. As the majority opinion sets forth, this court uses a balancing test, stated in State v. Soto,34 to determine whether forfeiture or waiver applies.35 "Therefore, when determining whether a right is subject to forfeiture or waiver, we look to the constitutional or statutory importance of the right, balanced against the procedural efficiency in requiring immediate final determination of the right."36 While the majority opinion sets forth this balancing test, it considers procedural efficiency without sufficiently weighing that interest against the importance of the Sixth Amendment public trial right.
¶ 166. In Soto, this court determined that waiver, rather than forfeiture, applied to a defendant's statutory right to be present in the courtroom during a plea hearing.37 Soto first recognized, in general, that the forfeiture rule has the benefit of procedural efficiency. We stated, "Rights that are subject to forfeiture are typically those whose relinquishment will not necessarily deprive a party of a fair trial, and whose protection is best left to the immediacy of the trial, such as when a party fails to raise an evidentiary objection."38 However, we then explained that "waiver typically applies to those rights so important to the administration of a fair trial that mere inaction on the part of a litigant is not sufficient to demonstrate that the party intended to forgo the right."39 We further explained that a defendant's statutory right to be present, in person, *188during the proceeding at issue was "particularly important to the actual or perceived fairness of the criminal proceedings."40
¶ 167. The court's emphasis in Soto on the connection between rights subject to waiver and those same rights' concern with fairness or perceived fairness of a criminal trial convinces me that requiring waiver, rather than permitting forfeiture, is the correct approach. As discussed previously, the public trial right is an exceedingly important constitutional right that is absolutely tied to the actual or perceived fairness of a criminal trial. It is of no consequence that a public trial right violation may not actually affect fairness because whether the violation permeates the trial is a question an appellate court simply cannot evaluate in the same way that an appellate court can evaluate the effect of an evidentiary error. Like a defendant's statutory right to be present in person, a defendant's constitutional right to a public trial must be subject to waiver, not forfeiture.
¶ 168. Furthermore, the fact that juvenile proceedings are often closed to the public, or that some criminal proceedings may be void of spectators, is of no importance. First, most jurisdictions do not recognize a public trial right in the context of juvenile adjudications because of the overriding confidentiality interest as well as the noncriminal nature of the proceedings.41 Second, it is not the actual presence of spectators that ensures fairness of criminal trials, but instead it is the fact that the public could easily access and observe criminal proceedings at any moment.42
*189¶ 169. Although I conclude that a criminal defendant must voluntarily and knowingly waive his or her right to a public trial to give up that right, I acknowledge that there is no doubt that permitting forfeiture encourages efficiency by both the prosecution and defense by bringing timely objections to the circuit court's attention. The benefit of efficiency, however, does not outweigh the necessity of safeguarding the public trial right. This is especially true considering that the purpose of the public trial right is to ensure fairness of every aspect of a criminal trial.
¶ 170. The decision in Walton v. Briley43 further persuades me that waiver is the correct approach. In Walton, the United States Court of Appeals for the Seventh Circuit held that a criminal defendant cannot forfeit his or her right to a public trial.44 The Walton decision explained that waiver has been required of a variety of fundamental trial rights, such as "plea agreements, the right against self-incrimination, the right to a trial, the right to a trial by jury, the right to an attorney, and the right to confront witnesses."45 The United States Court of Appeals for the Seventh Circuit noted that the abovementioned rights were all concerned with "the fairness of the trial" and then concluded that "[t]he right to a public trial also concerns *190the right to a fair trial."46 I agree, as previously noted, that the Sixth Amendment's concern with fairness requires that a waiver, rather than a forfeiture, analysis applies to an alleged public trial right violation.
¶ 171. In addition, I am persuaded that waiver analysis can coexist with the four Waller factors.47 An application of a waiver analysis does not change the fact that the public trial right is not absolute, and that a court may close a courtroom only after consideration of the four Waller factors.48 However, when a courtroom closure does not satisfy the Waller factors, under a waiver approach, a closure can occur only if a defendant voluntarily and knowingly agrees to the closure.49
¶ 172. Finally, I am not persuaded that language in prior United States Supreme Court decisions supports forfeiture rather than waiver analysis.50 The United States Supreme Court has not definitively addressed whether waiver or forfeiture applies to a public trial violation. The defendant in Waller did object to the closure in his case, and the Court's holding makes note of that fact.51 However, there is no indication that the Court would have reached a different result in that case had the defendant not objected to the closure. Additionally, although the majority finds Peretz v. United *191States52 and Levine v. United States53 persuasive, I find those cases clearly distinguishable and therefore not supportive of a forfeiture analysis. This is because Levine evaluated the public trial right under the Due Process Clause and not the Sixth Amendment.54 Thus the Levine decision answered only the narrow question of whether a defendant's failure to object to the secrecy of a contempt proceeding violated the Due Process Clause.55 In addition, I am not persuaded that Peretz, which cites to Levine broadly and fails to clarify that Levine considered the Due Process Clause and not the public trial right under the Sixth Amendment, supports a forfeiture analysis.56
¶ 173. The Sixth Amendment public trial right is one very important tool by which we guarantee the fairness of criminal trials. The majority opinion has compromised this important guarantee and has minimized the importance of the public trial right by allowing a defendant to forfeit a right so essential to the core of our judicial system. Furthermore, the forfeiture analysis applied by the majority opinion does nothing to prohibit the practice of improper courtroom closure, which at least in Fond du Lac County appears to be common practice. In contrast, requiring waivers upholds the important purpose of the public trial right and encourages courts to keep trials open to the public. Of course, under Waller, overriding interests may necessitate closure under rare circumstances.
*192C. REMEDY UNDER A WAIVER ANALYSIS
¶ 174. Because I would apply waiver and neither Pinno nor Seaton voluntarily or knowingly waived their right to a public trial, I briefly address the remedy each defendant should receive.
¶ 175. In Seaton's case, the circuit court denied his request for an evidentiary hearing and concluded that the courtroom was never closed. However, Seaton's post-conviction motion included sufficient facts to warrant an evidentiary hearing on whether the courtroom was closed. Therefore, in Seaton's case the proper remedy, under a waiver analysis, would be a remand for an evidentiary hearing to determine whether the courtroom was closed during voir dire. That hearing should be before a circuit court judge other than the one who denied the original request for an evidentiary hearing. If an evidentiary hearing revealed that the courtroom was closed during voir dire, then analysis of whether the circuit court had considered the Waller factors would also be necessary. If not, then the Waller factors must be considered and applied, and the ultimate remedy would depend on whether the Waller factors were satisfied.
¶ 176. In Pinno's case, under a waiver analysis, the remedy should be different because she already received an evidentiary hearing on the issue of courtroom closure, which she raised in her postconviction motion. During this evidentiary hearing, the circuit court concluded that the courtroom was never closed. Specifically, the circuit court stated:
So I just want to certainly emphasize that the courtroom was never closed. It was never locked. It was never secured. Rather this Court was doing nothing more than exercising its inherent power to encourage limiting the admission of public to the courtroom only during the voir dire process given the jury panel of 85 potential jurors ....
*193However, before voir dire began in Pinno's case, and just prior to seating the jury venire in the courtroom, the circuit court remarked:
Other than the jury, nobody will be in the courtroom. Okay. So just have the jury panel in here. I want no one else in here during the entire voir dire process until the jury is selected. Any press in here? (No response.) I want no press in here either.
¶ 177. Based on the statements the circuit court made on the record just prior to voir dire, I would hold the circuit court's conclusion, that the courtroom was never closed, to be clearly erroneous.57 Therefore, in Pinno's case, the proper remedy should be consideration and application of the Waller factors to the facts of record, and if a violation of Pinno's public trial right is determined to have occurred, then a new trial is a remedy. A circuit court judge other than the one who found that no closure had occurred would need to be assigned to Pinno's case.
II. A VIOLATION OF THE PUBLIC TRIAL RIGHT SHOULD RESULT IN THE PRESUMPTION OF PREJUDICE IN AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
¶ 178. I recognize that, under the waiver approach that I would apply, it is unnecessary to address the additional issue of whether prejudice should be *194presumed when an ineffective assistance of counsel claim is based on an alleged public trial right violation. However, I write separately to briefly explain why, contrary to the majority opinion, prejudice should be presumed in this context.
¶ 179. As the majority recognizes, this court has presumed prejudice in the context of ineffective assistance of counsel in cases where the harm of the error in question could not easily be measured.58 However, the majority opinion disregards our prior jurisprudence by again concluding that a public trial violation does not always result in a "manifest injustice."59 This conclusion misses the mark because the focus should be the inability of courts to measure the effect of a public trial violation. Therefore, as I have previously noted, it is insignificant that a manifest injustice may not result every time a courtroom is unlawfully closed. Since the effect of a public trial right violation cannot be measured, prejudice must be presumed, consistent with the applicable case law discussed.
III. CONCLUSION
¶ 180. Courtroom closures, by their very nature, are extremely troubling. The circumstances under which a courtroom can be closed without violating a bedrock principle of our justice system — the right to a public trial — are rare. Travis Seaton and Nancy Pinno, the defendants in these consolidated cases, each asserts that voir dire proceedings during their criminal trials in Fond du Lac County were closed to the public apparently to make room for large jury venires. While these *195allegations alone are disconcerting, the record in Seaton's case demonstrates that these types of closures are apparently common practice in Fond du Lac County. If there is to be a courtroom closure, there must be consideration and application of the Waller factors because a defendant's Sixth Amendment right to a public trial is absolutely rooted in the essential underpinning of our judicial system: fairness.
¶ 181. Considering that the public trial right is such a fundamental concept to our criminal justice system, I cannot agree with the majority's conclusion that a criminal defendant's failure to make a contemporaneous objection results in his or her forfeiture of that right. Contrary to the majority opinion, I assert that a defendant's public trial right, guaranteed by both the Sixth Amendment and the Wisconsin Constitution, can be given up only if the defendant affirmatively voices a willingness to do so. I would therefore consider the right subject to waiver analysis. This conclusion results from consideration of the importance of the public trial right, the unique position of a violation of the right as a structural constitutional error, its concern with fairness, and persuasive authority from the United States Supreme Court and from other jurisdictions, all considerations that are minimized by the majority opinion.
¶ 182. In addition, I write separately to express my disagreement with the majority opinion's conclusion that prejudice should not be presumed when a claim of ineffective assistance of counsel is based on an alleged violation of the public trial right. I recognize that under my use of a waiver analysis, there would be no need to reach the ineffective assistance of counsel claims presented by these defendants. However, I am not persuaded by the majority opinion's discussion of the presumption of prejudice. At the outset, I agree with the *196majority that the presumption of prejudice is warranted under circumstances in which the harm of the error in question is difficult to measure. In contrast to the majority's position, however, I conclude that a public trial violation that occurs during voir dire is exactly the type of harm that may infiltrate an entire trial in incalculable ways. Therefore, contrary to the majority approach, I would presume prejudice in this context.
¶ 183. For these reasons, I respectfully dissent.
¶ 184. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
Majority op., ¶ 19, n.7.
Waller v. Georgia, 467 U.S. 39 (1984), adopted a four-part test first articulated in Press-Enterprise Co. v. Superior Court (Press Enter. I), 464 U.S. 501 (1984), under which a trial court may close courtroom proceedings under very limited circumstances despite a defendant's Sixth Amendment right to a public trial. In Waller, the United States Supreme Court stated,
Under Press-Enterprise, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must he no broader than necessary to protect that *178interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
Waller, 467 U.S. at 48. See also majority op., ¶ 45 (discussing Waller).
The Sixth Amendment, in part, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const, amend. VI. The Sixth Amendment public trial right is applicable to the states through the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273 (1948) ("In view of this nation's historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment's guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sentenced to prison.").
Wisconsin Const, art. I, § 7 provides:
In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
*179Although the defendants' arguments are based on the Sixth Amendment rather than the Wisconsin Constitution, I note that the public trial right under art. I, § 7 does not appear to be any different than the right under the Sixth Amendment.
I also note that Wis. Stat. § 757.14 requires that courtrooms remain open. Although this statute has potential applicability to this case, my focus is on a defendant's Sixth Amendment right to a public trial.
Majority op., ¶ 9.
Id., ¶¶ 40, 43. In Presley v. Georgia, 558 U.S. 209, 213 (2010), the United States Supreme Court held that the Sixth Amendment public trial right applies to voir dire. It is of no importance that the Supreme Court decided Presley after the voir dire proceedings took place in both the Pinno and Seaton trials. This is because Presley explicitly asserts that the issue of whether the Sixth Amendment public trial right applies to voir dire was already a well-settled principle under Press-Enterprise I and Waller, which addressed the right under the First Amendment and the Sixth Amendment, respectively. Id. at 213.
Majority op., ¶ 42 (discussing the four core values as outlined by State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612); majority op., ¶¶ 44-45 (discussing Waller, 467 U.S. at 45, 48).
Majority op., ¶ 46.
Id., ¶ 67, n.23.
Id., ¶ 41.
See id., ¶ 50.
Gannett Co. v. DePasquale, 443 U.S. 368, 412 (1979); In re Oliver, 333 U.S. at 268-69 ("The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet.") (internal footnotes omitted).
See In re Oliver, 333 U.S. at 266-68.
Id. at 270 ("[T]he guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.").
Id. at 271 (quoting 1 Jeremy Bentham, Rationale of Judicial Evidence 524 (1827)).
Ndina, 315 Wis. 2d 653, ¶ 49 (quoting Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996) (citing Waller, 467 U.S. at 46-47 (1984)).
United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (citing Arizona v. Fulminante, 499 U.S. 279 (1991)).
See Fulminante, 499 U.S. at 306-08.
Id. at 307-08.
See id. at 309-10.
Id.
Gonzalez-Lopez, 548 U.S. at 148-49; Neder v. United States, 527 U.S. 1, 8 (1999); Fulminante, 499 U.S. at 310. In each of these cases the United States Supreme Court cited Waller, 467 U.S. 39.
See majority op., ¶ 51.
Fulminante, 499 U.S. 279.
See Roger A. Fairfax, Jr., Harmless Constitutional Error and the Institutional Significance of the Jury, 76 Fordham L. Rev. 2037-38 (2008) (discussing Chapman v. California, 386 U.S. 18 (1967), and Fulminante, 499 U.S. 279).
Fulminante, 499 U.S. at 310.
Presley, 558 U.S. at 212-13.
See supra ¶ 10.
Majority op., ¶¶ 59, 84, 86.
Id., ¶ 59.
As the majority sets forth, waiver, opposed to forfeiture, requires a defendant to affirmatively give up a known right. See majority op., ¶ 56; see also Ndina, 315 Wis. 2d 653, ¶ 29. When waiver applies, we usually require that such waiver be given knowingly and voluntarily. See State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), for a discussion of knowing and intelligent waiver in the context of a defendant's right to counsel.
State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848.
Walton v. Briley, 361 F.3d 431 (7th Cir. 2004).
Soto, 343 Wis. 2d 43, ¶ 38.
Majority op., ¶ 57.
Soto, 343 Wis. 2d 43, ¶ 38.
Id., ¶¶ 34-35.
Id., ¶ 36.
Id., ¶ 37.
Id., ¶ 40.
Susan N. Herman, The Right to a Speedy and Public Trial 91 (2006).
See Press-Enter. I, 464 U.S. at 508 ("The value of openness lies in the fact that people not actually attending trials can have *189confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known."); see also In re Oliver, 333 U.S. at 270 ("The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.").
Walton, 361 F.3d 431.
Id at 434.
Id. at 433-34 (citations omitted).
Id. at 434 (citing Waller, 467 U.S. at 46).
See majority op., ¶ 60.
For a discussion of the Waller factors see majority op., ¶ 45.
This statement addresses a defendant's Sixth Amendment right to a public trial and does not take into consideration situations in which members of the public, including the press, object to courtroom closures under the First Amendment.
See majority op., ¶¶ 62-63.
Waller, 467 U.S. at 42, 47.
Peretz v. United States, 501 U.S. 923 (1991).
Levine v. United States, 362 U.S. 610 (1960).
See id. at 616 (stating that "[p]rocedural safeguards for criminal contempts do not derive from the Sixth Amendment").
Id. at 616-17.
See Peretz, 501 U.S. at 936.
The fact that the jury clerk testified during the evidentiary hearing that the courtroom was never locked and that she thought she remembered people coming in and out of the courtroom does not change my conclusion. The jury clerk could not specifically identify or describe any person, other than members of the jury venire, who observed the voir dire proceedings.
Majority op., ¶ 84 (discussing State v. Smith, 207 Wis. 2d 258, 280-81, 558 N.W.2d 379 (1997)).
Id.