U.S. Supreme Court

In Miller, CAAF held that 

Neither the Sixth Amendment public trial right nor the public trial right conferred by R.C.M. 806 applies to hearings conducted pursuant to M.R.E. 412(c)(2). We therefore answer the granted issue in the negative and hold that the military judge's closure of the courtroom did not violate Appellant's right to a public trial.

United States v. Miller, 86 M.J. 188 (C.A.A.F. 2025). Judge Maggs dissented.

The Court holds that a military judge may close a hearing on the admissibility of evidence under Military Rule of Evidence (M.R.E.) 412 without conducting a case-by-case analysis of whether the closure would violate the accused's Sixth Amendment right to a public trial. This holding, in my view, conflicts with the Supreme Court's decisions in Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), and Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010) (per curiam), and this Court's decision in ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997).

In a petition to the U.S. Supreme Court, the question presented is: Whether the Public Trial Clause of the Sixth Amendment requires case-specific determinations of necessity and narrow tailoring before an M.R.E. 412 hearing can be closed to the public. Which, the petition and 

As all five of the CAAF’s judges acknowledged, whether the Sixth Amendment’s Public Trial Clause applies to rape shield hearings is a question that has already divided multiple state supreme courts--including three that have held, contra the CAAF, that the Clause does apply to such proceedings. The CAAF’s decision in this case deepens that split--which is one that only this Court can resolve.
. . .
At least four state supreme courts have directly confronted the question of whether the Public Trial Clause of the Sixth Amendment applies to rape shield hearings. And three of the four have answered that question in the affirmative.

For practitioners, this means that defense counsel should make this argument at trial. Yes, the military judge will deny the motion based on Miller. But until the Supreme Court decides the issue, it is a non-frivolous motion. The point has been made regarding Anderson and the unanimous verdict-until SCOTUS decides the issue, it is live and should be raised at trial--and the CAAF decision appropriately cited as contrary authority in the motion.

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