experience and logic test in Washington

2015Applying the experience and logic test, we determined in Love that the practice of conducting peremptory challenges at sidebar did not constitute a closure ofthe courtroom: Id. at 920 .

2014There, the court held that neither “prong of the experience and logic test suggests that the exercise of cause or peremptory challenges must take place in public.” Love, 176 Wn.

2019The experience and logic test determines whether the proceeding at issue implicates the public trial right.41 "The guiding principle 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.'"42 In State v. Smith,43 our Supreme Court held that "sidebars do not implicate the public trial right." The court reasoned that sidebars "have not historically been open to the public 87 State v. Wise, 176 Wn.2d 1, 16 , 288 P.3d 1113 (2012). 88 State v. Armstrong, 188 Wn.2d 333 , 339, 394 P.3d 373 (201

2019The experience and logic test determines whether the proceeding at issue implicates the public trial right.41 "The guiding principle 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.'"42 In State v. Smith,43 our Supreme Court held that "sidebars do not implicate the public trial right." The court reasoned that sidebars "have not historically been open to the public 87 State v. Wise, 176 Wn.2d 1, 16 , 288 P.3d 1113 (2012). 88 State v. Armstrong, 188 Wn.2d 333 , 339, 394 P.3d 373 (201

2018The experience prong examines " 'whether the place and process have historically been open to the press and general public.' " Id. at 417 , 352 P.3d 749 (internal quotation marks omitted) (quoting In re Det. of Morgan, 180 Wash.2d 312 , 325, 330 P.3d 774 (2014) ).

2018The experience prong examines " 'whether the place and process have historically been open to the press and general public.' " Id. at 417 , 352 P.3d 749 (internal quotation marks omitted) (quoting In re Det. of Morgan, 180 Wash.2d 312 , 325, 330 P.3d 774 (2014) ).

2014No. 68846-4-1/5 criminal defendant has a right to a public trial under the federal and state constitutions.9 The public has a complementary right to open proceedings under the federal and state constitutions.10 But these rights are not absolute, and a trial court may close part of a trial to which the public trial right applies after applying the Bone-Club guidelines and making specific findings on the record justifying a closure.11 To determine whether the public trial right applies, the Supreme Court in State v. Sublett adopted an experience and logic test.12 This test applies to the defenda

2014No. 68846-4-1/5 criminal defendant has a right to a public trial under the federal and state constitutions.9 The public has a complementary right to open proceedings under the federal and state constitutions.10 But these rights are not absolute, and a trial court may close part of a trial to which the public trial right applies after applying the Bone-Club guidelines and making specific findings on the record justifying a closure.11 To determine whether the public trial right applies, the Supreme Court in State v. Sublett adopted an experience and logic test.12 This test applies to the defenda

2020To determine whether a closure was justified, we apply a three-part test.24 First, we apply the experience and logic test 20 State v. Smith, 181 Wn.2d 508, 513 , 334 P.3d 1049 (2014). 21See Hundtofte v. Encarnacion, 181 Wn.2d 1, 6 , 330 P.3d 168 (2014) (analyzing a court’s decision to permit alteration of a case caption to use initials instead of names as a redaction). 22 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 , 640 P.2d 716 (1982). 23 Doe G. v. Dep’t of Corr., 190 Wn.2d 185, 201 , 410 P.3d 1156 (2018) (citing State v. Bone-Club, 128 Wn.2d 254, 261-62 , 906 P.2d 325 (1995)). 24 Smith, 181

2020To determine whether a closure was justified, we apply a three-part test.24 First, we apply the experience and logic test 20 State v. Smith, 181 Wn.2d 508, 513 , 334 P.3d 1049 (2014). 21See Hundtofte v. Encarnacion, 181 Wn.2d 1, 6 , 330 P.3d 168 (2014) (analyzing a court’s decision to permit alteration of a case caption to use initials instead of names as a redaction). 22 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 , 640 P.2d 716 (1982). 23 Doe G. v. Dep’t of Corr., 190 Wn.2d 185, 201 , 410 P.3d 1156 (2018) (citing State v. Bone-Club, 128 Wn.2d 254, 261-62 , 906 P.2d 325 (1995)). 24 Smith, 181

2020To determine whether a closure was justified, we apply a three-part test.24 First, we apply the experience and logic test 20 State v. Smith, 181 Wn.2d 508, 513 , 334 P.3d 1049 (2014). 21See Hundtofte v. Encarnacion, 181 Wn.2d 1, 6 , 330 P.3d 168 (2014) (analyzing a court’s decision to permit alteration of a case caption to use initials instead of names as a redaction). 22 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 , 640 P.2d 716 (1982). 23 Doe G. v. Dep’t of Corr., 190 Wn.2d 185, 201 , 410 P.3d 1156 (2018) (citing State v. Bone-Club, 128 Wn.2d 254, 261-62 , 906 P.2d 325 (1995)). 24 Smith, 181

2020“The experience and logic test can be helpful in that it allows the determining court to consider the actual proceeding at issue for what it is, without having to force every situation into predefined factors.” Id.

2020To determine whether a closure was justified, we apply a three-part test.24 First, we apply the experience and logic test 20 State v. Smith, 181 Wn.2d 508, 513 , 334 P.3d 1049 (2014). 21See Hundtofte v. Encarnacion, 181 Wn.2d 1, 6 , 330 P.3d 168 (2014) (analyzing a court’s decision to permit alteration of a case caption to use initials instead of names as a redaction). 22 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 , 640 P.2d 716 (1982). 23 Doe G. v. Dep’t of Corr., 190 Wn.2d 185, 201 , 410 P.3d 1156 (2018) (citing State v. Bone-Club, 128 Wn.2d 254, 261-62 , 906 P.2d 325 (1995)). 24 Smith, 181

2020To determine whether a closure was justified, we apply a three-part test.24 First, we apply the experience and logic test 20 State v. Smith, 181 Wn.2d 508, 513 , 334 P.3d 1049 (2014). 21See Hundtofte v. Encarnacion, 181 Wn.2d 1, 6 , 330 P.3d 168 (2014) (analyzing a court’s decision to permit alteration of a case caption to use initials instead of names as a redaction). 22 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 , 640 P.2d 716 (1982). 23 Doe G. v. Dep’t of Corr., 190 Wn.2d 185, 201 , 410 P.3d 1156 (2018) (citing State v. Bone-Club, 128 Wn.2d 254, 261-62 , 906 P.2d 325 (1995)). 24 Smith, 181

2023If a proceeding was not one that the Washington Supreme Court has already recognized the public trial right attaches to, we “must apply the experience and logic test to determine whether the public trial right is implicated.” State v. Miller, 184 Wn.

2023The experience and logic test asks whether a proceeding’s “process and place . . . historically have been open to the press and general public,” and “whether access to the public plays a significant positive role in the functioning of the proceeding.” Id.

2020To determine whether a closure was justified, we apply a three-part test.24 First, we apply the experience and logic test 20 State v. Smith, 181 Wn.2d 508, 513 , 334 P.3d 1049 (2014). 21See Hundtofte v. Encarnacion, 181 Wn.2d 1, 6 , 330 P.3d 168 (2014) (analyzing a court’s decision to permit alteration of a case caption to use initials instead of names as a redaction). 22 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 , 640 P.2d 716 (1982). 23 Doe G. v. Dep’t of Corr., 190 Wn.2d 185, 201 , 410 P.3d 1156 (2018) (citing State v. Bone-Club, 128 Wn.2d 254, 261-62 , 906 P.2d 325 (1995)). 24 Smith, 181

2020To determine whether a closure was justified, we apply a three-part test.24 First, we apply the experience and logic test 20 State v. Smith, 181 Wn.2d 508, 513 , 334 P.3d 1049 (2014). 21See Hundtofte v. Encarnacion, 181 Wn.2d 1, 6 , 330 P.3d 168 (2014) (analyzing a court’s decision to permit alteration of a case caption to use initials instead of names as a redaction). 22 Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 , 640 P.2d 716 (1982). 23 Doe G. v. Dep’t of Corr., 190 Wn.2d 185, 201 , 410 P.3d 1156 (2018) (citing State v. Bone-Club, 128 Wn.2d 254, 261-62 , 906 P.2d 325 (1995)). 24 Smith, 181

2019In Easterling, the Supreme Court held the trial court erred in closing the courtroom to Easterling and the public during a hearing on a motion to sever filed by Easterling's codefendant. 157 Wn.2d at 170 - 71.

2012State v. Easterling, 157 Wn.2d 167, 183-84 , 137 P.3d 825 (2006) (Madsen, J., concurring) (“[W]hether a particular closure implicates the constitutional right to a public trial is determined by inquiring whether closure has infringed the ‘values that the Supreme Court has said are advanced by the public trial guarantee (internal quotation marks omitted) (quoting Carson v. Fischer, 421 F.3d 83, 92 (2d Cir. 2005))).

2018Peterson, 85 F.3d at 42 -44 . ¶437 To a limited extent, this test for de minimis closure resembles the logic prong of the experience and logic test, as both consider the purposes underlying the public trial right.

2015Peterson, 85 F.3d at 42 -44 . ¶462 To a limited extent, this test for de minimis closure resembles the logic prong of the experience and logic test, as both consider the purposes underlying the public trial right.

2018Waller shows that sometimes even structural errors do not warrant the remedy of a new trial. 467 U.S. 39 , 104 S.Ct. 2210 .

2018Waller shows that sometimes even structural errors do not warrant the remedy of a new trial. 467 U.S. 39 , 104 S.Ct. 2210 .

2016Moreover, the fact remains that the arraignment proceeding itself was not conducted in open court. ¶38 In short, both experience and logic compel the conclusion that an arraignment on a substantive amendment to the information implicates the right to a public trial. ¶39 The next step in the analysis is to consider whether a closure occurred. “[T]he appellant must supply a record that reveals that the court took actions amounting to a closure, such as explicitly issuing an order completely closing the proceedings or moving the proceedings to chambers.” State v. Gomez, 183 Wn.2d 29, 35 , 347 P.3

2016Moreover, the fact remains that the arraignment proceeding itself was not conducted in open court. ¶38 In short, both experience and logic compel the conclusion that an arraignment on a substantive amendment to the information implicates the right to a public trial. ¶39 The next step in the analysis is to consider whether a closure occurred. “[T]he appellant must supply a record that reveals that the court took actions amounting to a closure, such as explicitly issuing an order completely closing the proceedings or moving the proceedings to chambers.” State v. Gomez, 183 Wn.2d 29, 35 , 347 P.3

2016This question “necessarily requires proving that counsel should have known to raise the public trial right issue on appeal.” Morris, 176 Wn.2d at 167 . ¶52 Eagle’s direct appeal came before this court in 2011, prior to the Supreme Court’s adoption of the experience and logic test.

2014The court analogized to 4 Contrary to the lead opinion's assertion, what occurred here was in fact "substantially similar" to the closed jury selection that took place in Wise and In re Personal Restraint of Morris, 176 Wn.2d 157 , 288 PJd 1140 (2912), which we held to be a violation of the public trial right.

2014Therefore, under the experience and logic test, the public trial right attaches to a witness's assertion of her Fifth Amendment privilege against self-incrimination in an evidentiary hearing. invoke taxpayers' privilege against self-incrimination and to suppress as against government's subpoena, cancelled checks and bank statements which taxpayers had turned over to him at his request); In re Marcario, 2 Cal. 3d 329 , 466 P.2d 679 , 85 Cal. Rptr. 135 (1970) (defendant's attorney had standing to assert the privilege against self- incrimination on the defendant's behalf to restrain the enforceme

2014Therefore, under the experience and logic test, the public trial right attaches to a witness's assertion of her Fifth Amendment privilege against self-incrimination in an evidentiary hearing. invoke taxpayers' privilege against self-incrimination and to suppress as against government's subpoena, cancelled checks and bank statements which taxpayers had turned over to him at his request); In re Marcario, 2 Cal. 3d 329 , 466 P.2d 679 , 85 Cal. Rptr. 135 (1970) (defendant's attorney had standing to assert the privilege against self- incrimination on the defendant's behalf to restrain the enforceme

2014The court concluded that 2 See, e. g., Paumier, 176 Wn.2d at 34 -35 ( stating " [ t] his presumption of openness extends to voir dire, ' " and that " individually questioning potential jurors is a courtroom closure requiring a Club Bone — analysis" ( emphasis added) ( quoting State v. Momah, 167 Wn.2d 140, 147 , 217 P. 3d 321 ( 2009)); Wise, 176 Wn.2d at 12 n. 4, 288 P. 3d 1113 ( stating " ` it is well settled that the right to a public trial also extends to jury selection ' " ( emphasis added) ( quoting Brightman, 155 Wn.2d at 515 )). 5 44837 -8 -II cases involving voir dire did not resolve w

2013See, e.g., Paumier, 176 Wn.2d at 34-35 (stating “‘[t]his presumption of openness extends to voir dire’ ” and that “individually questioning potential jurors is a courtroom closure requiring a Bone-Club analysis” (emphasis added) (quoting Momah, 167 Wn.2d at 148 )); Wise, 176 Wn.2d at 12 n.4 (stating “[i]t is not necessary to engage in a complete ‘experience and logic test,’ because ‘it is well settled that the right to a public trial also extends to jury selection’ ” (emphasis added) (citing Sublett, 176 Wn.2d at 73 -75 and quoting State v. Brightman, 155 Wn.2d 506, 515 , 122 P.3d 150 (2005)))

2014Id. (citing Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 162-63 , 795 P.2d 1143 (1990)). 4 ¶16 Slert has not shown there was a closure under the experience and logic test.

2014Id. (citing Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 162-63 , 795 P.2d 1143 (1990)). 4 ¶16 Slert has not shown there was a closure under the experience and logic test.

2014In re Det. of D.F.F., 172 Wn.2d at 40 . 2 CONCLUSION We find the challenged in-chambers conference did not implicate public trial rights under article I, section 10, and due process did not require Morgan to be competent for his SVP trial.

2014In re D.F.F., 172 Wn.2d at 40 . 2 Conclusion ¶30 We find the challenged in-chambers conference did not implicate public trial rights under article I, section 10 and due process did not require Morgan to be competent for his SVP trial.