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Name: People v. Bui
Case #: A119404
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 04/06/2010

A de minimus or trivial exclusion of the public during trial does not create an automatic violation of a defendant’s constitutional right to a public trial. During voir dire at defendant’s trial for property crimes, three individuals, including two members of appellant’s family, were excluded from the court room for approximately 40 minutes. The appellate court found no violation of appellant’s federal and state constitutional right to an open trial but on review, the Supreme Court remanded with direction to reconsider in light of Presley v. Georgia (2010) __ U.S. __ [130 S.Ct. 721]. The court observed that a public trial ensures basic fairness and the appearance of fairness essential to public confidence in the system. A violation of the right to an open trial is structural and reversible per se. But the constitutional guarantee to a public trial creates a “presumption of openess” that may be rebutted by a showing that exclusion is necessary. And the California Supreme Court has recognized that certain exclusions or closures are so de mimimus that they do not result in a violation of defendant’s constitutional rights. (People v. Woodward (1992) 4 Cal.4th 376.) The closure here was of such a nature – only three individuals, not the general public, were excluded for roughly 40 minutes; the exclusion was during voir dire and not during the evidentiary portion of the trial; once defense counsel brought the issue to the judge’s attention, the individuals were allowed to return when it was assured that they would not speak among themselves in the juror’s presence and possibly taint the jury. With this record, under the de minimus analysis, there was no constitutional violation of appellant’s right to an open trial.