## FILE IN CLERK'S OFFICE SUPREME COURT, STATEOF WASHINGTON
DATE 

## SEP 2 5 2014

......,,. •'


### INTHE SUPREME COURTOFTHESTATE OFWASHINGTON 

### STATE OF WASHINGTON, Respondent, No. 85809-8


## v. En Bane WILLIAM GLEN SMITH, Filed 

## SEP 2 5 2014 Petitioner.
J.M. JOHNSON, J.*-This case presents the issue ofwhether sidebar conferences implicate a criminal defendant's right to a public trial under article I, section 22 ofthe Washington Constitution and require a conviction to be overturned. William Glen Smith claims that the trial court violated his public trial right when courtroom limitations led to holding "sidebar" conferences in a hallway outside the courtroom on the record with counsel present. Smith argues that these sidebars were courtroom closures subject to State v. Bone-Club, 

### 128 Wn.2d 254, 906 P.2d 325 (1995). Because the trial

*JusticeJames M. Johnsonis serving as ajusticepro tempore ofthe Supreme Court pursuant to Washington Constitution article IV, section2(a).State v. Smith, No. 85809-8



### courtdid notperform aBone-Club 

### analysis, he requests thatthis courtreverse his conviction and granthim anewtrial. We holdthat sidebars do not implicate the public trial right. This court
uses the experience and logic test to evaluate whether aparticularproceeding implicates the public trial right. State v. Sublett, 

### 176 Wn.2d 58, 73, 292 P.3d 715 (2012). Sidebars are not subject to the public trial right under the experience and logic test because they have not historically been opento the public and because allowing public access would play no positive role in the proceeding. Although the practice ofholding sidebars in a hallway outside the courtroom is unusual, the form of these hallway conferences was consistent with the role traditionally filled by sidebars and so they do not implicate the public trial right. We affirm the Court ofAppeals. FACTS AND PROCEDURAL HISTORY 

### Smith was charged by information with 10 counts ofthird degree rape and fourth degree assault with a sexual motivation. Clerk'sPapers (CP) at 4- 8. The information was later amended to add one count of second degree perjury. Jd. 

### at 56-60. The State brought charges after Smith compelled his niece to enter into a contract purportedly waiving her right to refuse sex or

-2-State v. Smith, No. 85809-8


### complain civilly or criminally about any sex acts he wanted to perform with her for 10 years. 1 

### The CowlitzCountycourthousehas apeculiarlayoutmakingitdifficult to hold sidebar discussions between counsel and the trial judge outside the jury'shearing. Suppl. Br. ofPet'r, App. A. To avoid contaminating thejury with potentially prejudicial rulings on evidentiary objections, these sidebar discussions occur in a hallway outside the courtroom. 

### Id. Thejudgethrows
aswitchbeforeeachhallway sidebarthat deactivates therecording equipment in the courtroom and activates a camera and microphone in the hallway to keep these sidebars on the record. 

### Id. During Smith's trial, 132 

### hallway "sidebar" 3 

### conferences occurred. !d. App. A at 2. After the trial, thejury

1The contract also contained a liquidated damages clause providedthat ifthe victim ever denied consent, shewouldhaveto pay"thePro-RatedBalanceof$10,000.00tenthousand dollars minus $1,000.00 onethousand dollars peryear." Ex. 5. 2 The dissent agrees thatthe sidebarto discuss a timefor recess does notimplicatethe public trial right. Dissent at 4 & n.3. Thispositionis inconsistent and comes dangerouslycloseto one ofthe "ministerial"proceedingsthat are allowedunderthe legal-factual testrejected inSublett. The dissent cites Justice Stephens' Sublett concurrence for thepropositionthatthepublictrial right does not attachto "briefsidebars to allow counsel to raise concerns thatmayneedtobetakenup outsidethejury's presence." Id. at 2 n.2. All sidebars haveto takeplaceoutside thepresence ofthejury becausehearingthe content would exposethejuryto potentiallyprejudicial evidence. 3 Although the parties disagreed about whether to characterize these hallway conferences as "sidebars" or something else, we analyze them as sidebars herebecause that is therole these conferences played in the trial. The analysis would not change for on the record evidentiary conferences in chambers.
-3-State v. Smith, No. 85809-8



### convicted Smith on four counts ofthird degree rape and one count ofsecond degree perjury. On direct appeal Smith alleged, among other things, that 12 of the hallway sidebars violated his public trial rightbecause the trial court failed to conduct a Bone-Club 

### analysis. Pet. for Review at 4. Division Two ofthe Court ofAppeals held that the hallway sidebars did not implicate Smith's public trial right because they "involved purely ministerial and procedural matters." State v. Smith, 

### noted at 159 Wn. App. 1011,2011 WL 55972, at *4. The Court of Appeals affirmed Smith's conviction but remanded only for resentencing. 2011 WL 55972, at 

# *12. We accepted review solely on the public trial rights issue and affirm the conviction with a differing analysis. State v. Smith, 

### 176 Wn.2d 1031,299P.3d 20 (2013). ISSUE 

### The issue is whether sidebar conferences on evidentiary matters in a hallway outside the courtroom implicatethe public trial right.4

4 The parties also disputed whether Smith invited this alleged error. Itis not necessary to addressthatissueherebecausewe find the constitutionalrightdoes notattachto traditional sidebars, like those here. -4-State v. Smith, No. 85809-8

ANALYSIS 

### Whether a defendant's right to a public trial has been violated is a question of law, subject to de novo review on direct appeal. State v. Brightman, 155 Wn.2d 506, 514, 122P.3d 150 (2005) (citingBone-Club, 128 Wn.2d at 256). Lower courts in this state continue to struggle with the open courts doctrine derived from article I, section 22. In Sublett, ChiefJustice Madsen laid out ahelpful analytical framework that guides our analysis ofpublic trial right cases. We begin by exammmg . . . whether the public trial right is implicated at all
. . . then turn to the question whether, ifthe public trial right is implicated, there is in fact a closure ofthe courtroom; and ifthere is a closure, whether
...the closure was justified. 176 Wn.2d at 92 (Madsen, C.J., concurring). Application ofthese rules and framework inthis case shouldprovide guidanceto trial courts infuture cases. We adopt this three-step framework here.5

5Sublett couldberead as requiring atwo part analysis, first askingwhetherthe public trial right attaches and then turning to whetherthere was a violation oftheright. See State v. Wilson, 174 Wn. App. 328, 298 P.3d 148 (2013). However, the question of whether a closure occurred is a distinct question from whetherthat closure wasjustified because a closure afterthetrial court conducts aBone-Club analysis does notviolatethe right. State v. Frawley, No. 80727-2, slip op. at 7 (Wash. Sept. 25, 2014) (lead opinion). InbothState v. Njonge, No. 86072-6 (Wash. Sept. 25, 2014) and State v. Koss, No. 85306-1 (Wash. Sept. 25, 2014), the defendants failed to prove that a closure occurred at
-5-State v. Smith, No. 85809-8



### 1. 

### Does theproceedingat issue implicate thepublic trial right? The proceeding at issue in this case is a sidebar conference held in a hallway outside the courtroom. For some time our Court ofAppeals drew a distinction between legal and ministerial proceedings on one hand and adversarial and factual proceedings on the other.6 

### Sublett, 176 Wn.2d at 72. In this case, the Court ofAppeals used the legal-factual test. 

### Smith, 2011 WL 55972, at *4. While Smith's petition was pending in this court, we decided

### Sublett, whichrejectedthe oldlegal-factual distinctionin favor ofthe experience and logic test to determine whether the proceeding at issue implicates the public trialright. 176 Wn.2d at 73 (citing

### Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8-10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)). "Thefirst part ofthetest, the experienceprong, asks 'whethertheplace andprocess havehistoricallybeenopento thepress and generalpublic.' The logicprong asks 'whetherpublic access plays a significantpositiveroleinthe functioning ofthe particular process in question."' 

### !d. (citations omitted) (quoting 

### Press-Enter., '478 U.S. at 8). The guiding principle is "whether

all, endingtheinquirybeforewereached the question ofwhether aBone-Club analysis occurred tojustifythe alleged closures. 6As shorthand, welabel itherethe "legal-factualtest."

-6-State v. Smith, No. 85809-8



### openness will 'enhance[] both the basic fairness ofthe criminal trial and the appearance offairness so essential to public confidence in the system.'" I

### d. 

### at 75 (alteration in original) (quotingPress-Enter. Co. v. Superior Court, 

### 464 U.S. 501, 508, 104 S. Ct. 819,78 L. 

### Ed. 2d 629 (1984)).
a. The ExperienceProng Sidebar conferences have historically occurred outside the view ofthe public. See, e.g., State v. Swenson, 

### 62 Wn.2d 259, 279, 382 P.2d 614 (1963) (sidebar to address witness concerns about witness's comfort while testifying); 2 BYRON K. 

### ELLIOTT & 

### WILLIAM F. 

### ELLIOTT, A TREATISE ON GENERALPRACTICECONTAININGRULESAND SUGGESTIONSFORTHEWORKOF THEADVOCATEINTHEPREPARATIONFORTRIAL, CONDUCTOFTHETRIAL AND 

### PREPARATIONFORAPPEAL 714 (1894) (advocating offers ofproofinresponse to evidentiary objections in writing or otherwise outside thejury's hearing); JAMES W. JEANS, TRIALADVOCACY§ 14.7, at 355 (1975) (advocating use of sidebar conferences as the preferred practice to address issues discreetly outside the hearing ofthejury); see also In reDet. of Ticeson, 

### 159 Wn. App. 374, 384-86, 246 P.3d 550 (2011) (abrogated foruse ofthe legal-factualtest). The defendant in Ticeson 

### invoked his public trial right to challenge an inchambers conference on the admissibility of"certain deposition testimony."

-7-State v. Smith, No. 85809-8



### Ticeson, 159 Wn. App. at 378. Inrejectingthe defendant's claim, the Ticeson court notedthat In the case ofsidebar discussions, issues arising with the jurypresent would always require interrupting trial to send the jury to the jury room, often located some distance from the courtroom, therebyoccasioning long delays everytime the court wishes to caution counsel orhearmorethan a simple "objection, YourHonor." This would do nothing to makethetrial morefair, to foster public trust, orto serve as a check onjudges byway of public scrutiny. Id. at 386 n.38. The courtreasonedthatthe "publictrial right is not servedby such areading, andthe ability of judges [to run orderlycourtrooms] wouldbe greatlyhindered without a correspondingpublicbenefit." Id. at 386.7 

### Smith offers no effective response to this history or the practical difficulties in extending ourpublic trialjurisprudence to sidebar conferences
on evidence.8 

### Without any evidence the public has traditionallyparticipated

7 While Smith alleges a violation ofhis article I, section 22 public trial right rather than section 10, the two are closely linked. Bone-Club, 128 Wn.2d at 259 ("The section 10 guaranty ofpublic access to proceedings and the section 22 public trial right serve complementary and interdependent functions in assuring the fairness of our judicial system." (citing CONST. art. I, § 10)). Sidebars occur in both criminal and civil trials. While some civil trial proceedings implicating section 10 might be different from the section22 criminal casebeforeus now, sidebars arenottraditionallyopenineither civil or criminal trials.
8The dissent downplays the inconvenience ofsendingthejuryout ofthe courtroom "approximatelyfour times a day." Dissent at 6. Butneither Smithnorthe dissent can pointto any caseholdingthat sidebar conferences to address speaking objections to evidence during trial are unconstitutional. Such aholdingwouldbeunprecedented and -8-State v. Smith, No. 85809-8



### in sidebars, the experience prong cannot be met. Instead, Smith relies on several examples that are easily distinguishable. In Bone-Club, 

### 128 Wn.2d at 256, this court held that a pretrial suppression proceeding implicated the public trial right. In Bone-Club, 

### the court closed the courtroom during the testimony of an undercover police officer to protect the confidentiality ofhis undercover activities. 

### I d. at 257. Sidebars are different. Pretrial suppression hearings rule on issues with a significantimpactinthe community.9 

### Proper sidebars, onthe otherhand, deal with the mundane issues implicating little public interest. Wise, 

### 176 Wn.2d at 5. 10 

### In State 

### v. Easterling, 

### 157 Wn.2d 167, 137 P.3d 825 (2006), the court closed the courtroom during a codefendant's combined motion to sever and dismiss. Id. 

### at 172. The hearing involved discussion about whether the state

extreme. This is notmerely "bow[ing] to convenience;" it is aproper application ofthe experience and logictestto aprolific and historic practice. !d. 9 One example is whether a police searchviolated a defendant's privacy rights under article I, section 7 ofthe Washington State Constitution. 10 We cautionthat merely characterizing something as a "sidebar" does not make it so. To avoid implicating the public trial right, sidebars mustbe limited in contentto their traditional subject areas, shouldbe done onlyto avoid disrupting the flow oftrial, and must eitherbe onthe record or be promptly memorialized in the record. Whetherthe event in question is actually a sidebar is partofthe experience prong inquiry and is not subjectto the old legal-factual test. -9-State v. Smith, No. 85809-8



### had acted in bad faith. I

### d. & 

### n.7. The proceeding at issue in Easterling 

### was simply not akin to a sidebar. The closure in that case clearly implicated Easterling's rights because ofthe appearance ofimpropriety. Courts have a strong "interestin protecting the transparency and fairness ofcriminal trials." ld. 

### at 178. The proceeding in Easterling 

### "undermined the fairness ofthe process" because the defendant and his attorney were excluded from the pretrial hearing along with the rest ofthe public. ld. 

### In this case, Smith's counsel was present at and participated in every sidebar. Smith also cites Rovinsky v. McKaskle, 

### 722 F.2d 197, 198 (5th Cir. 1984). In that case, the Fifth Circuit reversed a conviction where the trial judge heard arguments in chambers on motions to limit the scope ofcross examination oftwo witnesses. First, the Fifth Circuit did not employ the experience and logic test in concluding the motion hearing should have been conducted in open court. Second, even if the Rovinsky 

### court correctly concluded that the public trial right attached to that hearing, there is an important difference between the type ofsidebars here-contemporaneously addressing speaking objections throughout trial-and the motions in Rovinsky. 

### The motions concerned two specific witnesses and were brought before trial commencedbutnot considered until both witnesses hadprovided

-10-State v. Smith, No. 85809-8



### direct testimony. 

### !d. at 199. Like Easterling, 

### the proceeding in Rovinsky 

### is not analogous to the sidebars here. 11 

### Third, the Rovinsky 

### court expressly stated that "[s]idebar conferences in which the defendant's counsel participates without objection do not violate the right to apublic trial." Id. 

### at 201. The public trial right is, among other things, a prophylactic measure allowing the public to observe the process and weighthe defendant's guilt or innocence for itself. 12 

### !d. at 201-02. The sidebars in this case would not aid the public in assessing Smith's guilt or innocence. Finally, the sidebars here
are further distinguishable from the motions in Rovinsky 

### because there is a video and audio record. Any inquiring member ofthe public can discover exactly what happened at sidebar. Smith has not satisfied the experience prong.

11 A helpful analogy is the difference between setting ground rules priorto a baseball game versus the umpire calling balls and strikes during the game. Pretrial motions setthe rules ofatrial while ajudge'srulings on evidence determine whether a party has strayed outside those rules. 12 We inno way questionthe importance ofthe public trial right inWashington. Rovinsky applies to the federal public trial right. Ourfounders enshrinedthe public trial right in article I ofour state constitution. The rightto a public trial is a core safeguardto thejustice system and fair trials, and it is an important check onthejudiciary. Wise, 176 Wn.2d at 5-6. -11-State v. Smith, No. 85809-8



### b. TheLogic Prong The logic prong asks "'whether public access plays a significant positiverole inthe functioning oftheparticularprocessin question."' 

### Sublett, 176 Wn.2d at 73 (quoting 

### Press-Enter., 478 U.S. at 8). Smith articulates no specific interestthat is servedbyensuringthatthepublic is privyto a sidebar, and 

### itis difficultto conceive ofone. Indeed, forcing thejuryin and out ofthe courtroom repeatedly whenever an objection is made at trial would be a problematicpractice. 13 

### Butmore importantly, evidentiaryrulings that are the subject oftraditional sidebars do not invoke any ofthe concerns the public trial right is meant to address regarding perjury, transparency, or the appearance offairness. 

### SeeSublett, 176 Wn.2d at 77. Critically,the sidebars here were contemporaneously memorialized and recorded, thus negating any
concern about secrecy. The public was not prevented from knowing what occurred. Nothingpositive is added by allowing the public to intrude on the huddle at the bench in real time. 

### Sublett, 176 Wn.2d at 97-98 (Madsen, C.J., concurring) (quoting 

### RichmondNewspapers, Inc. v. 

### Virginia, 448 U.S. 555, 598 n.23, 100 S. Ct. 2814,65 L. Ed. 2d 973 (1980) (Brennan, J., concurring)).

13 While we assume thatjuries follow their instructions, we must also acknowledge that juries are made ofimperfecthumanbeings subjectto the annoyance ofconstantly marching in and out ofthe courtroom. -12-State v. Smith, No. 85809-8



### No logic compels the conclusion that sidebars must be conducted in open court. Applying our own logic to the situation does not advance Smith's argument. Many lawyers fail to fully appreciate the complexities of the hearsay rule and its many exceptions. Forthe public, discussions on hearsay and the prior inconsistent statement exception are practically a foreign language. Such rulings are exclusively within the province ofthe trialjudge underER 104(a). Nothing is added to the functioning ofthe trial by insisting that the defendant or public be present during sidebar or in-chambers conferences. Indeed,thetrial courtdidwhatER 1 04(c) requires inthe interest ofjustice by preventing the jury from hearing discussions on potentially inadmissible evidence. The logic prong weighs against Smith. Sidebars have traditionally been held outside the hearing ofboth the juryandthepublic. Because allowingthe publicto "intrudeuponthe huddle" would add nothing positive to sidebars in our courts, we hold that a sidebar conference, even if held outside the courtroom, does not implicate Washington's public trial right. 14 

### See supra 

### p. 11.

14 This holding is simply common sense. In a sidebar thejudge and counsel necessarily speak in hushed voices to prevent the jury from overhearing potentially prejudicial information. Spectators inthe pewsbehind counsel tables are oftenfarther away from the -13-State v. Smith, No. 85809-8



### Findingthatthe sidebars or evidentiary conferences inthis case didnot implicate the public trial right, the court need not reach the remaining three steps in this case. However, we provide the following guidance to assist reviewing courts inthe future. 2. 

### Was there a closure? A closure occurs "whenthe courtroom is completely andpurposefully closedto spectators so thatno one may enter andno one may leave." 

### State v. Lormor, 172 Wn.2d 85, 93,257 P.3d 624 (2011). This courthas adopted the experience and logic test to determine whether a closure occurred in the absence ofan express closure on the record. 

### In re Pers. Restraint ofYates, 177 Wn.2d 1, 28-29, 296 P.3d 872 (2013). When no closure exists, the trial court judge "possesses broad discretion [including] the power to remove distracting spectators" and to provide orderly conduct to ensure a fair proceeding. 

### Lormor, 172 Wn.2d at 93-94 (applying RCW 2.28.010). The courtneed not reach this step ifthe answerto the first question is negative. Because the sidebar conferences in this case do not implicate the public trial right, the courtneed not determine whetherthey were closed.

bench than thejury. Ifthejury cannot hear a sidebar, then the public almost certainly cannothear it either. -14-State v. Smith, No. 85809-8



### 3. 

### Was the closurejustified?

A closure unaccompanied by a 

### Bone-Club analysis on the record will almost never be consideredjustified. A trial court that properly conducts a 

### Bone-Club analysis and enters a finding on the record that the closure is justified will almost never be overturned because such a determination is subject to review for abuse ofdiscretion. 

### Wise, 176 Wn.2d at 11. When a court fails to conduct an express 

### Bone-Club analysis a reviewing court may examine the record to determine if the trial court effectively weighed the defendant'spublic trial right against other compelling interests. 

### Momah, 167 Wn.2d at 156. However, we have said that 

### "it is unlikely that we will ever again see a case like 

### Momah where there is effective, but not express compliance with 

### Bone-Club" and thus far, our prediction has been correct. 

### Wise, 176 Wn.2d at 15. Again, becausethe sidebarconferencesinthis case do notimplicatethe public trial right, the court does not consider whetherthe alleged closure was justified. CONCLUSION 

### This court acceptedreview on several public trial rights casesthisterm to clarify the law in this field. We have partially adopted the framework

-15-State v. Smith, No. 85809-8



### advocated by ChiefJustice Madsen in Sublett. The steps ofthis public trial rightframework are: (1)Doestheproceedingatissue implicatethepublictrial right? (2) If

### so, was the proceeding closed? And (3) If so, was the closure justified? Applying the experience and logic test in the first step to this case, we find that sidebars such as the onespresented inthis case have nottraditionally been open to the public and injecting the public into sidebars would have no positive impact. Accordingly, sidebarconferences do notimplicate the public trial right. Because reasonable and traditional sidebars used to avoid interruption ofa trial do not implicate the public trial right, the court need not reach the remaining two steps ofthe public trial right framework here. We affirm the Court ofAppeals with the caveat that the legal-factual test it relied on was rejected in Sublett.

-16-. No 85809-8 State v. Smzth,
. 

# Pr

.

WE CONCUR:

# s~/2

-17-State v. Smith (William Glen) (Wiggins, J., concurring in result)

No. 85809-8
WIGGINS, 

### J. (concurring in result)-1 agree with the result reached by the majority opinion, but I write separately because our open courts jurisprudence has become increasingly complex and confusing. We adopted the logic and experience test as the method by which judges can determine whether a particular phase of trial is subjectto theWashington Constitution's command thatjustice shall be administered openly. CONST. art. I, 

### §§ 10, 22; State 

## v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012). But this case and other pending cases reveal that it is difficult and confusing, if not impossible, to drawclear lines between trial proceduresthat should be open and those that can be closed. We embarked on this journey with the best of intentions: to invigorate our open courtsjurisprudence and to protect criminal defendants' constitutional right to an open and public trial. But this experience teaches that there are many types of closures at different points in trial, and most defy easy classification under the logic and experience test. Moreover, it remains near impossible to predict whether the public trial right attaches to a particular proceeding, even when proceedings are identical or closely analogous to our prior case law. Most problematically, we have resorted to the logic and experience test to reduce the right to a public trial, carving out exceptions to the public trial right for various steps in the trial. We should take this opportunity toNo. 85809-8 (Wiggins, J., concurring in result) clarify Washington's open courts jurisprudence to lend guidance to judges and practitioners facing these questions on a daily basis. Accordingly, I would reject the logic and experience test and instead hold that all trial proceedings are presumed open. In orderto close a phase oftrial, atrialjudge must conduct a Bone-Ciub1 analysis on the record. And on appeal, Iwould require a defendant to have objected at trial or to satisfy RAP 2.5(a)(3) in order to assert the right to a public trial. ANALYSIS Numerous decisions from this court attempt to delineate the contours of the public trial right. In this quest, our cases have applied the following principles and rules. We employ the logic and experience test to determine whether a proceeding implicatesthe publictrial right. Sublett, 176 Wn.2d at 72-73. Ifwefind that experience and logic counsel that a particular process in the trial must be open, the following draconian rules apply:
• In order to close the courtroom for that process, the trial court must conduct a Bone-Club analysis before closure;
• the defendant need not object to the closure or the failure to conduct a Bone-Club analysis, State v. Wise, 176 Wn.2d 1, 6, 288 P.3d 113 (2012);
• closing the courtroom without conducting a Bone-Club analysis is considered "structural error," and the defendant is automatically entitled

1 State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). 2No. 85809-8 (Wiggins, J., concurring in result) to a new trial without any showing of prejudice, Wise, 176 Wn.2d at 13- 14;
• the issue can be raised for the first time on appeal or even in a postappeal collateral attack on a conviction through a personal restraint petition, see In re Pers. Restraint ofMorris, 176 Wn.2d 157, 161, 288 P.3d 1140 (2012). Having adopted these onerous principles, we are constrained by the doctrine of stare decisis to continue to adhere to them unless our decisions adopting these principles are incorrect and harmful. In re Pers. Restraint of Yates, 177 Wn.2d 1, 25, 296 P.3d 872 (2013) (quoting CityofFederal Way

## v. Koenig, 167 Wn.2d 341, 346-47, 217 P.3d 1172 (2009)). This case illustrates why the logic and experience test is incorrect and harmful. 

### I. Overview ofthe Logic and Experience Test In Bone-Club, 128 Wn.2d 254, we articulated a five-step inquiry that a court must consider before closing proceedings to the public. 2 But soon after Bone-Club, it

2 The five step Bone-Club analysis is: "1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused's right to a fairtrial, the proponent must show a 'serious and imminent threat' to that right. "2. Anyone present when the closure motion is made must be given an opportunity to object to the closure. "3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests. "4. The court must weigh the competing interests of the proponent of closure and the public.

3No. 85809-8 (Wiggins, J., concurring in result) became apparent that trial judges did not consider routine procedures to be closures and so did not conduct a Bone-Club analysis before using sealed questionnaires or closing parts ofvoir dire. In an effort to provide guidance to trial and appellate judges, a plurality of this court adopted the logic and experience test for determining whether the public trial right attaches to a particular proceeding. Sublett, 176 Wn.2d at 73. The Sublett plurality borrowed the "experience and logic test" from a 1986 United States Supreme Court case, Press-Enter. Co. 

## v. Superior Court, 478 U.S. 1, 13-14, 106 S. Ct. 2735, 92 

### L. Ed. (1986), finding the test to be desirable because it allows the trial court "to consider the actual proceeding at issue for what it is, without having to force every situation into predefined factors." Sublett, 176 Wn.2d at 73. Consistent with its name, the experience and logic test has two parts. The experience prong determines "whether the place and process have historically been open to the press and general public." Press, 478 U.S. at 8. The logic prong determines "whether public access plays a significant positive role in the functioning of the particular process in question." 

### /d. Ifthe answer to both questions is yes, the right to public trial attaches and the court must analyze the proposed closure using the five Bone-Club factors. Sublett, 176 Wn.2d at 73.

"5. The order must be no broader in its application or duration than necessary to serve its purpose." Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers of Wash. 

### v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)). 4No. 85809-8 (Wiggins, J., concurring in result) II. Logic and Experience Test Is Flawed The logic and experience test is flawed because it fails to account for article I, section 1O's uniquely strong mandate for openness at every stage of a judicial proceeding. Moreover, it categorically permits closures in certain types of proceedings without considering the effect that such closures have on the open administration ofjustice in that particular case. A. Fails to accountfor ourconstitution's unique emphasis on open proceedings Washington is one ofa number ofstates whose constitutions (unlike the United States Constitution) explicitly guarantee the open administration ofjustice. 3 Article I, section 10 of our constitution commands, "Justice in all cases shall be administered openly, and without unnecessary delay." The special emphasis on open court proceedings renders the Washington Constitution arguably more stringent than its federal counterpart, and our court's decisions have consistently emphasized the value of open administration ofjustice. See, e.g., Wise, 176 Wn.2d at 5; State 

## v. Lormor, 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011 ). The logic and experience test fails to account for the textand fu_nctign_ofarticle I, section 10. It is a test developed by federal courts with the United States Constitution in mind. It has little applicability to our constitution, which mandates that justice in all cases be administered openly. Moreover, we have recognized that the purpose of article I, section 10 is to "'ensure a fair trial, to remind the officers of the court of the importance of their functions, to encourage witnesses to come forward,

3 The United States Constitution never mentions open courts. Instead, the right to a public trial is implied in the FirstAmendment and made explicit in the SixthAmendment. U.S. CONST. amends. I, VI ("the accused shall enjoy the right to a speedy and public trial"). 5No. 85809-8 (Wiggins, J., concurring in result) and to discourage perjury."' State 

### v. Strode, 167Wn.2d 222, 226, 217 P.3d 310 (2009) (quoting State v. Brightman, 155Wn.2d 506,514, 122 P.3d 150 (2005)). But, applying the logic and experience test, we have drawn increasingly arbitrary lines delineating the universe of proceedings to which the public trial right attaches without considering whether our decisions further these goals. Indeed, public trial values are implicated when counsel and the court meet privately to discuss jury instructions, to answer a question from thejury, and to argue and rule on evidentiary issues. And yet, a majority of this court holds that the right to public trial did not extend to an in-chambers conference to discuss a question from a deliberating jury regarding jury instructions (Sublett, 176Wn.2d at 147), norto an in-chambers discussion ofjury instructions prior to deliberations (State v. Koss, No. 85306-1 (Wash. Sept. 25, 2014)), nor to the 12 sidebar conferences here that involved the exclusion of testimony and evidence (majority at 2). As Justice Owens explains in her dissent, discussion over the admissibility of key evidence is of public interest and, ultimately, could determine the outcome ofthe case. Dissent at 8. Without openness, the public is left to wonderwhy certain evidence was excluded; "[l]ogically, itfollows thatthe public's trust in ourjustice system will weaken." 

### /d. at 9. We should not continue to adhere to a test that does not further our constitution. B. Permits categorical closures ofcertain proceedings The guiding principle for determining whether the public trial right should attach is "whether openness will 'enhance[] both the basic fairness of the criminal trial and the appearance offairness so essential to public confidence in the system.'" Majority at 7 (alteration in original) (internal quotation marks omitted) (quoting Sublett, 176
6No. 85809-8 (Wiggins, J., concurring in result) Wn.2d at 75). Unfortunately, this principle has been honored more in its breach than in its observance. We have held that the right to public trial always attaches to suppression hearings (Bone-Club, 128 Wn.2d 254), hearings on pretrial motions to sever (State 

### v. Easterling, 157 Wn.2d 167, 137 P.3d 825 (2006)), and voir dire (In re Pers. Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004)). But it never attaches to in-chambers conferences to discuss jury instructions (Koss, slip op. at 7- 8), in-chambers conferences to discuss questionsfrom juries (Sublett, 176Wn.2d 58), or the Smith trial sidebars. But never have we explained why openness in proceedings thatwe have deemed subject to the constitutional open trial right protects the values of an open trial to a greater extent than would openness in proceedings that we have held are not subject to the constitutional open trial right. Not all cases proceed identically. Here, there were 12 sidebars involving important and substantive evidentiary rulings that almost certainly affected the outcome of the case. For instance, as a result of sidebar discussions, the court admitted Smith's statement to police that the sex was consensual as self-serving hearsay; admitted Smith's written statement, which was prepared by police and then adopted by Smith; ruled that the treating physician could testify as to the alleged victim's identification of the perpetrator; admitted nude photos of the alleged victim and sexual items found by the detective in Smith's residence; and ruled that the prosecutor could ask Smith if he told his wife he did not sleep with the alleged victim to showthat Smith lied. See dissent at 2-3. Holding private discussions over evidence and testimony does not foster trust in the judicial system and does not remind participants of their role in the judicial system; "[t]he proper forum for argument on
7No. 85809-8 (Wiggins, J., concurring in result) these issues is in open court." 

### /d. at 8. Indeed, what if in a future case there are 20, or 50, sidebars? What ifthe sidebars involve suppression ofa key piece ofevidence? The logic and experience test is incorrect because it places categorical limits on openness that might bar future requests for access to administration ofjustice simply because the closure involved a type of proceeding. If we continue to close the courtroom one proceeding after another, we will diminish open access to courts and court records.

Ill. Logic and Experience Test Is Harmful The logic and experience test is harmful because it fails to provide muchneeded guidance to judges, attorneys, and defendants. The conflicting majority and dissenting opinions show that reasonable minds can differ on what constitutes "logic" and "experience." Indeed, the test is difficult to apply on any principled basis and so vague that the result of applying it can easily appear contrived. In addition, future applications of the test will almost certainly lead to further restrictions on our commitment to the open administration ofjustice because history often leans in favor of permitting the closure. A. Fails to provide guidance In the 15years since Bone-Club, our courts have vacated dozens ofconvictions in cases where no Bone-Club analysis was performed. 4 In the wake of these

4 See, e.g., In re Pers. Restraint ofD'AIIesandro, 178 Wn. App. 457, 314 P.3d 744 (2013); State 

### v. Jones, 175 Wn. App. 87, 303 P.3d 1084 (2013); Morris, 176 Wn.2d 157; Wise, 176 Wn.2d 1; State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (2012); Strode, 167 Wn.2d 222; Easterling, 157 Wn.2d 167; Brightman, 155 Wn.2d at 506; Orange, 152 Wn.2d 795; State 

### v. Hummel, 165 Wn. App. 749, 266 P.3d 269 (2012); State 

### v. Njonge, 161 Wn. App. 568, 255 P.3d 753 (2011 ), reviewgrantedin part, 176Wn.2d 1031 (2013); State 

### v. Tinh Trinh Lam, 161
8No. 85809-8 (Wiggins, J., concurring in result) reversals, Washington judges and practitioners seek guidance. Unfortunately, we have offered them a test that provides little clarity, as evidenced by the persistent uncertainty around whether the public trial right attaches to a particular proceeding. In 2012, this court reviewed a number of public trial cases in which jurors had been questioned individually in chambers. Wise, 176 Wn.2d 1; State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (2012). We concluded that a defendant's right to a public trial applies to the jury selection process. Wise, 176 Wn.2d at 11-13; Paumier, 176 Wn.2d at 34-35. But, when confronted with an arguably analogous case, we came to a different conclusion. The lead opinion in Slertfinds that the public trial right does not attach to pre-voir-dire in-chamber discussions about jurors' answers to questionnaires designed to evaluate the jurors' fitness to serve. State 

### v. Slert, No. 87844-7, slip op. at 8 (Wash. Sept. 25, 2014). The Slertdissent, however, points out that several jurors were dismissed for cause after filling out the questionnaire, indicating that this was voir dire and not "a precursorto voir dire." S/ert, slip op. at 1 (dissent) (emphasis added). Arguably, the logicand experiencetest should have been easily applied to S/ert under our past precedent. Like Wise and Paumier, S/ert involved erroneous closure of a portion ofthe jury selection process-specifically, inchambers discussions that resulted in jurors being excused for cause based on their answers to questions. Cf. Wise, 176 Wn.2d 1; Paumier, 176 Wn.2d 29.

Wn. App. 299, 254 P.3d 891 (2011 ), reviewgranted, 176Wn.2d 1031 (2013); State 

### v. Leyerle, 158 Wn. App. 474, 242 P.3d 921 (2010); State 

### v. Bowen, 157 Wn. App. 821, 239 P.3d 1114 (2010); State 

### v. Waldon, 148 Wn. App. 952, 202 P.3d 325 (2009); State v. Sadler, 147 Wn. App. 97, 193 P.3d 1108 (2008); State 

### v. Erickson, 146 Wn. App. 200, 189 P.3d 245 (2008); State v. Duckett, 141 Wn. App. 797, 173 P.3d 948 (2007); State v. Frawley, 140 Wn. App. 713, 167 P.3d 593 (2007), reviewgranted, 176 Wn.2d 1030 (2013). 9No. 85809-8 (Wiggins, J., concurring in result) If "experience" teaches us anything, it is that there is no clear, meaningful way to define trial procedures, such as the jury selection process, thus rendering even "easy" cases difficult. See, e.g., State 

### v. Wilson, 174 Wn. App. 328, 298 P.3d 148 (2013) (right does not attach to excusal ofjurors for illness related reasons because this is pretrial juror excusal, not voir dire). Butsee State 

### v. Jones, 175 Wn. App. 87, 303 P.3d 1084 (2013) (public trial right attached to court recess during which the court clerk randomly selected four alternate jurors); State v. Tinh Trinh Lam, 161 Wn. App. 299, 254 P.3d 891 (2011) (public trial right attached to questioning of sworn-in juror because process was procedurally similar to and conducted for the same purpose as voir dire), review granted, 176 Wn.2d 1031 (2013). Indeed, in another recent case involvingjuryselection, the court held thatthe publictrial right did not attach to parties' use of peremptory and for-cause challenges at a sidebar conference. State 

### v. Love, 176 Wn. App 911, 918, 309 P.3d 1209 (2013). The court distinguished voir dire-the questioning ofjuries-from the exercise of peremptory and for-cause challenges and reasoned that, historically, challenges are not made in public.5 

### /d. The court also held under the logic prong that exercising challenges to excuse jurors in open court did not further the goals ofthe public trial right. 

### /d. These cases demonstrate that it remains near impossible to predict whether the public trial right attaches, even when proceedings are closely analogous to our prior case law.

5 Instead of characterizing the closure as a sidebar closure, the court focused on the substantive actions taken at the sidebar-i.e., the exercise of challenges to excuse jurors. Love, 176Wn. App. at 918. 10No. 85809-8 (Wiggins, J., concurring in result) Applying the logic and experience test to new situations has proved equally difficult. The majority and dissenting opinions in the current case demonstrate the difficulties associated with identifying what constitutes "experience and logic" under the test. Both opinions apply the test to arrive at different conclusions. The majority reasons that under the experience prong, sidebars have historically and necessarily included counsel but excluded the public and the defendant. Majority at 7. Moreover, sidebars deal with mundane issues implicating little public interest. 

### /d. at 9. Under the logic prong, neither the defendant nor the public has a right to be present during in-chambers or bench conferences because they add nothing to the discussion. 

### /d. at 11-12. Thus, the majority holds that sidebars do not implicate the public trial right. The dissent reaches the opposite conclusion, reasoning that under the experience prong, the sidebars here involved discussion of important evidentiary issues, and manyjudges discuss evidentiary matters in open court. Dissent at 5. The dissent argues that logic dictates that whether a key piece of evidence is admitted or not can determine the outcome ofa case. 

### !d. at 8. Accordingly, the dissent concludes that it is importantto make this process open to the public. 

### !d. Ifthe samejudges who adopted the logic and experience test cannot apply it consistently in a simple case, the test is unworkable and harmful; we should overrule our prior case law. Our decisions in these cases provide few answers and raise more questions. In this case, neither a party nor a member of the public objected to the sidebar process. Butwhatwill we do when, in a high profile criminal prosecution, a news media reporter asks to be included in the sidebar? We are deciding here that sidebars are not subject to the public trial right; presumably the reporter's request will be denied. 11No. 85809-8 (Wiggins, J., concurring in result) Orwhat if, as unlikely as it seems, the trialjudge makes biased or improperstatements during the sidebar, knowing that the sidebar is not public? Or what if sidebars result in consistently one-sided rulings, and a courtroom observer asks that all further sidebars be made public? What ifthere is absolutely no record ofwhatwas discussed at sidebar? The logic and experience test is harmful because it adds to the confusion rather than providing clear guidance to trial and appellatejudges. A recent law review article remarks that trial judges have become increasingly reluctant to conduct any type of in-chambers or sidebar conference in light of the unsettled state of the law. Anne L. Ellington & Jeanine Blackett Lutzenhiser, In Washington State, Open Courts Jurisprudence Consists Mainly ofOpen Questions, 88 WASH. L. REV. 491, 519 n.194 (2013) (citing Interview with the Hon. Susan Craighead, King County Superior Court, in Seattle, Wash. (Dec. 1, 2011 ); Interview with the Hon. Anne Ellington, Washington State Court of Appeals, in Seattle, Wash. (Dec. 29, 2011 )). We should not so disempower ourtrial judges. Because these issues may arise in every criminal case, we should provide further guidance to avoid the wasted resources inherent in retrials. B. History will often lean in favorofclosure Finally, the logic and experience test is harmful because it hasjustified and will likely continue to justify closures. A survey ofwhat Washington judges have done "at chambers" since statehood reveals that in-chambers conferences to discuss legal matters have long been seen as constitutional and within the discretion of the trial judge. Ellington & Lutzenhiser, supra, at 517-18 & n.193 (citing In re Oet. ofTiceson, 159 Wn. App. 374,384-85,246 P.3d 550 (2011), abrogated on other grounds by
12No. 85809-8 (Wiggins, J., concurring in result) Sublett, 176 Wn.2d at 71-72). Because the experience and logic test calls for review of historical practices, it is possible that most such proceedings will eventually be excluded from the public. 6 Indeed, our court and the Court ofAppeals have applied the test to limit the public trial right. See majority at 2 (sidebars); Koss, No. 85306-1 (preliminary in-chambers conferences to discuss jury instructions); Sublett, 176 Wn.2d at 76, 77 (public trial right does not attach to conference to discuss question from jury about its instructions); see also State 

### v. Miller, 179 Wn. App. 91, 316 P.3d 1143 (2014) (public trial right does not attach to pretrial in-chambers discussion of statute or in-chambers discussion of proposed jury instruction); State 

### v. Burdette, 178 Wn. App. 183, 313 P.3d 1235 (2013) (in-chambers discussion about responses to jury's question about an instruction or to initial jury question requesting clarification about howto proceed if it felt it was deadlocked); State 

### v. McCarthy, 178Wn. App. 90, 312 P.3d 1027 (2013) (trial court's response to jury's request for a tape measure and masking tape); Love, 176 Wn. App. 911 (parties' use of peremptory and for-cause challenges at a sidebar); State v. Halverson, 176 Wn. App. 972, 309 P.3d 795 (2013) (in-camera questioning of impaneled juror for alleged misconduct during deliberations), review denied, 179 Wn.2d 1016 (2014); Wilson, 174 Wn. App. 328

6 Strangely, history informs the inquiry at times and is ignored other times. For example, inchambers voir dire appeared to be a common practice before Strode, 167 Wn.2d 222. See Lauren A. Rousseau, Privacy andJury Selection: Does the Constitution Protect Prospective Jurors from Personally Intrusive Voir Dire Questions?, 3 RUTGERS J.L. & URB. PoL'Y 287, 311 (2006) (author surveyed 18 federal judges; "[v]irtually all" of them allowed potential jurors to answer intrusive or embarrassing questions "privately at the bench or in chambers, with only the judge, the court reporter, and the opposing counsel present"). Yet, the majority held in Paumier and Wise that voir dire must be conducted in an open court. See Paumier, 176 Wn.2d at 35; Wise, 176 Wn.2d at 11-12. 13No. 85809-8 (Wiggins, J., concurring in result) (excusal of jurors for illness-related reasons). In light of these cases, we should reevaluate and abandon the logic and experience test. IV. We Should PresumeAll Stages ofTrial Are Open I would reject the logic and experience test as a well-intentioned but ultimately unworkable test. Instead, I would hold that all phases of trial are presumed open. I would reiterate that a judge should not close any step in the proceeding without engaging in a Bone-Club analysis. If there is a timely objection, a trial judge must conduct a Bone-Club analysis on the record before closing a proceeding. If part ofthe trial has been closed to the public without objection and without a Bone-Club analysis, an appellate court will usually not reviewthe issue unless a party can establish "manifest error affecting a constitutional right." RAP 2.5(a)(3). In evaluating whether a trial closure is "manifest error," I would require an adequate record as well as a showing ofactual prejudice. In an extreme case, such as closure of the entire voir dire process, the court could evaluate whether the closure has so undermined our confidence in the outcome of the trial that the closure should be considered "structural error." 

### A. Benefits ofrequiring an objection at trial: clearrule for trialjudges and fairness Unlike the logic and experience test, requiring an objection at trial provides clear guidance to trial court judges that they should not close any part oftrial without conducting a Bone-Club analysis. Instead ofdrawing arbitrary lines between different types of proceedings, this rule properly places responsibility on trial attorneys to prepare their cases and make objections on the record. It also reduces strategic failures to object solely for purposes of appeal. Our current practice of automatically
14No. 85809-8 (Wiggins, J., concurring in result) reviewing every claimed violation ofthe public trial right could create an incentive for trial counsel to sit mute, deliberately not raising a constitutional error that might have little or no effect on trial but that may be the basis for a successful appeal. In sum, a requirement that defense counsel object preserves the integrity of the trial and reduces unnecessary appeals. Relatedly, requiring an objection in most cases is fair because this rule acknowledges that there are sometimes tactical reasons not to object. In many situations, both parties mightwillingly consentto closing part ofatrial or, indeed, might prefer it. In State 

### v. Shearer, a case involving a domestic dispute, juror 7 indicated that she had experience with domestic violence but did not want to talk about it. The trial judge asked if anyone objected to questioning juror 7 in chambers, and neither the defense nor the state objected. In chambers, juror 7 revealed that her grandson was killed by his father in their home. Defense moved to dismiss juror 7 for cause, the State did not object, and juror 7was excused. State v. Shearer, No. 86216-8, slip op. at 3-4 (Wash. Sept. 25, 2014). In S/ert, the lead opinion notes that "[q]uestioning the jurors about their disqualifying knowledge in open court in front ofthe otherjurors could have been potentially devastating to Slert's right to a fair trial." Slert, slip op. at 10. Iwould hold that neither party should be permitted to benefit by silently allowing the trial judge to close a portion ofthe trial without a Bone-Club analysis. See State 

### v. Rinkes, 70 Wn.2d 854, 859, 425 P.2d 658 (1967) ("The general rule is that one cannot voluntarily elect to submit his case to the jury and then, after an adverse verdict, claim error which, if it did exist, could have been cured or otherwise

15No. 85809-8 (Wiggins, J., concurring in result) ameliorated by some action on the part of the trial court."); State 

### v. Perry, 24 Wn.2d 764, 167 P.2d 173 (1946); State v. Case, 49 Wn.2d 66, 72, 298 P.2d 500 (1956). B. On appeal, benefits ofrequiring an objection: establishes 

### a record, abides by ourrules ofappellate procedure, andprotects the public trialright Requiring an objection in mostcases has the benefitofdeveloping an adequate record for appeal. We have before us two other cases in which the record fails to make clear whether there has been a violation ofthe public trial right: State 

### v. Koss, No. 85306-1 (Wash. Sept. 25, 2014), and State 

### v. Njonge, No. 86072-6 (Wash. Sept. 25, 2014). In each case, the record is inadequate because neitherthe parties nor the trial court raised the public trial right. 7 An objection by a party provides a forceful reminder that a Bone-Club analysis and an adequate record are both required. In addition, requiring an objection properly acknowledges that it is the duty ofthe parties to raise any objection and to establish a record ofclosure, thereby enabling adequate and full review on appeal. When a party appeals a closure to which there was no objection, we should apply RAP 2.5(a)(3), which applies to constitutional errors to which there was no objection at trial: The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following

7 ln Koss,. the defendant claimed that the court held an in-chambers conference to discuss a question from the deliberatingjury. Butthe record only showed thatthejury exited, submitted a question and received an answer, and then returned with its verdict. The record does not reveal whether the judge discussed the question with counsel. See Koss, slip op. at 9-1 0. In Njonge, the defendant claimed thejudge closed the courtroom to the public and media during voir dire. The record indicates that the judge explained that there was not enough room in the courtroom to accommodate all ofthe prospectivejurors and the public, and stated that he would not permit the press to film the jury selection process. But no observer was actually asked to leave, there were no objections to the voir dire procedure, and there were no orders relating to a closure. Njonge, slip op. at 4-5. 16No. 85809-8 (Wiggins, J., concurring in result) claimed errors for the first time in the appellate court:
... (3) manifest error affecting a constitutional right. When a party alleges constitutional error for the first time on appeal, we have traditionally required a RAP 2.5(a)(3) analysis. See, e.g., State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007) (RAP 2.5(a)(3) analysis required where error affecting right to trial by impartial jury was raised for first time on appeal); State 

### v. Clark, 139 Wn.2d 152, 155-56, 985 P.2d 377 (1999) (RAP 2.5(a)(3) analysis required where error affecting confrontation clause right was raised for first time on appeal). The party claiming error must identify the constitutional error and show that the error is manifest. State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). "Manifest" requires a showing ofactual prejudice; that is, the defendant must showthe error '"had practical and identifiable consequences in the trial of the case."' !d. at 99 (internal quotation marks omitted) (quoting State v. Kirkman, 159 Wn.2d 918, 925, 155 P.3d 125 (2007)). Our Rules of Appellate Procedure properly limit the types of constitutional claims that may be raised for the first time on appeal. Constitutional errors require special appellate attention because they risk serious injustice to the accused as well as adverse effects on the public's perception of fairness and the integrity of judicial proceedings. State 

### v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988) (citing State 

### v. McHenry, 88 Wn.2d 211, 558 P.2d 188 (1977)). On the other hand, "permitting every possible constitutional error to be raised for the first time on appeal undermines the trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful ofthe limited resources of prosecutors, public defenders and courts." State

17No. 85809-8 (Wiggins, J., concurring in result)

v. Lynn, 67 Wn. App. 339, 343-44, 835 P.2d 251 (1992). Ajudicious application ofthe "manifest" standard balances these competing values. 

### /d. Thus, as the plurality opinion in Sublett properly noted, under RAP 2.5(a)(3), we will review an alleged manifest error affecting a constitutional right even if not raised in the trial court. 176 Wn.2d at 78. "But for relief to be granted, [a defendant] must show actual prejudice resulting from the error, and the error is nonetheless subjectto harmless error review." /d. (citing O'Hara, 167 Wn.2d at 98-99). Finally, requiring an objection protects the publictrial right by reminding the trial court and all parties of the importance of this right. In our earlier decisions, we assumed we could best protect the public trial right by allowing parties to raise the issue for the first time on appeal. Paumier, 176 Wn.2d at 36-37. But requiring an objection has proved to be equally or even more protective ofthe public trial right. A contemporaneous objection permits the trial judge to resolve the issue when it should be resolved-at trial. An objection reminds the judge not to close any step in the trial process without engaging in a Bone-Club analysis. In other words, the objection protects the public trial right by forcing the trial judge to evaluate the issue and reassess whether to close a part ofthe trial or not. It puts the decision and the ability to establish a record in the hands of the defendant. In addition, our prior latitude in not requiring an objection is no longer needed because the many recent published decisions discussing the open trial right should have alerted most, if not all, defense counsel to the importance of the issue. It would be a rare defense attorney in Washington who remained unaware of the public trial right after our 14 opinions concerning the issue published since 2012. See Ellington 

### & Lutzenhiser, supra, at
18No. 85809-8 (Wiggins, J., concurring in result) 497 (public trial issue so familiar that "Bone-Club" is now a verb in Washington courtrooms). CONCLUSION We face a plethora of public trial rights**~ases** that test our court's two-prong logic and experience analysis. And unfortunately, the logic and experience analysis fails the test. As the body of public trial case law expands, the larger database provides an increasingly clear demonstration of the logic and experience test's shortcomings. Even "easy" applications of the test are no longer so easy, and the more troublesome applications are only beginning to arise. These cases demonstrate the defects in the logic and experience test: the uncertainty ofwhat constitutes "logic" and "experience" and the inability of the test to consistently protect against errors of constitutional import. We will continue to deal with confusion spawned by this test should we adhere to our precedent. For the sake of courts, victims, defendants, and public confidence, we should provide much needed guidance and reiterate that all phases of trial are presumed open and should not be closed without a Bone-Club analysis on the record. I concur in affirming the Court ofAppeals, but Iwould so hold because Smith did notobject at trial, and he has not satisfied the requirements of RAP 2.5(a)(3).

19No. 85809-8 (Wiggins, J., concurring in result) I concur in result.

20

### State v. Smith

No. 85809-8 OWENS, J. (dissenting)

-- During William Glen Smith'strial, thejudgeand attorneys leftthe courtroom and gathered in a nearbyhallwayto holdprivatemeetings
on 12 occasions. 1 

### The attorneys made motions to excludetestimony and argued over the extent ofquestioning allowed with certain witnesses, and thejudgemaderulings regarding the admissibility ofevidence and testimony. Those rulings helped shape the
course ofthetrial, yet neitherthe public nor the defendant witnessedthem. Themajority condones this secretiveprocess, failing to considerthepurposes behind our constitutional protection oftherightto a publictrial. Ourconstitution protects therightto a publictrial and demands the open administration of justice becausethey are core safeguards in our system of justice. A public trial helps to
ensure a fair trialby deterring misconduct andpartiality. Also, as this courthas said before, a publictrial "provides for accountability andtransparency, assuring that

1

### Thejudge closedthe courtroom on one other occasionto discuss when to take arecess. Smith does not argue thatthis closure implicated his rightto apublic trial.State v. Smith No. 85809-8 Owens, J., Dissenting 

### whatevertranspires in courtwill notbe secret orunscrutinized. And openness allows the public to see, firsthand,justice done in its communities." State v. Wise, 

### 176 Wn.2d 1, 6, 288 P.3d 1113 (2012). The secret and unscrutinized conferences inthis
case violated Smith'sright to a public trial. I dissent. FACTS During Smith'strial, thejudge and the attorneys held 12 private meetings in a backha'ilway. The majority dismisses these closures as "sidebars," butthat generalization mischaracterizes thenature ofthese meetings.2 

### The following summary shows thatthese discussions were challenges to evidence andtestimony during trial, and-as explained below-experience and logic dictate thatthese discussions implicatethe publictrialright: 1. The court clarified aprevious ruling regarding the admissibility ofER 404(b) evidence ofa common scheme and overruled defense counsel's objectionto testimony ofa priorbad act. 2. Parties argued over whether one alleged victim couldtestify that she spoke with another alleged victim onthe phone. The court overruledthe prosecutor's relevancy objection and allowed the testimony. 3. Parties argued over whether a lay witness may offer opiniontestimony and whether circumstantial evidence ofthe alleged victim's mental capabilities was admissible. The court excludedthe opiniontestimonybutruled that the circumstantial evidence was admissible.

2

### True sidebars are generally permissible-especiallywhen held in open court. See State v. Sublett, 

### 176 Wn.2d 58, 140,292P.3d 715 (2012) (Stephens, J., 

### concurring) (condoning "briefsidebars to allow counsel to raise concerns that may need to be taken up outside the jury'spresence"). 2State v. Smith No. 85809-8 Owens, J., Dissenting



### 4. Parties argued overwhetherthe alleged victim couldbe impeached with a prior inconsistent statement. The court overruledthe prosecutor's objection and allowed the question. 5. Parties argued overwhether a detective was qualified to offer an opinion of handwriting found inthe defendant's car. The court sustained defense counsel's objection and did not allow the opiniontestimony. 6. Inthe hallway, the prosecutorpreemptivelymovedto exclude Smith's statementto police that the sex was consensual as self-serving hearsay, but priorto the conclusion ofthe argumentthe courtrecessed. Thenin opencourt, butbeforethejuryreturned, the courtruledthatthe statement was admissible to showthat it was made, butnot for the truth ofthe matter asserted. 7. Parties argued whether apolicephotograph ofthe alleged victim was inadmissible for lack ofrelevance. The court sustainedthe prosecutor's objection and ruled that the photograph was inadmissible. 8. Parties argued overthe admissibility ofSmith's written statement because it was preparedbypolice andthen adopted by the defendant. The court overruled defense counsel's objection and ruled thatthe statement was admissible. 9. Parties argued overwhether the treating physician couldtestify about the alleged victim's identification ofthe perpetrator. The courtruled thatthe testimony was inadmissible but defense counsel could impeachthe alleged victim using it as aprior inconsistent statement. 10. Parties argued over whether the prosecutorhad laidproper foundation to admit nudephotographs ofthe alleged victim. The court overruled defense counsel's objection and ruled thatthe photographs were admissible. 11. Theprosecutormoved to admitreceipts for lingerie and other sexual items found in Smith's residence. The court overruled defense counsel's objection and ruled thatreceipts ofsexual items found bythe detective were admissible. 12. Parties argued over whetherthe prosecutor could ask Smith ifhe told his wife he did not sleep withthe alleged victim. The court overruled defense counsel's objection and allowed the questionto showthat Smithmayhave lied.
3State v. Smith No. 85809-8 Owens, J., Dissenting



### These closures occurred overthe course ofa three-daytrial. Thejuryconvicted Smith offour counts ofthird degree rape and one count ofsecond degree perjury.
ANALYSIS The majority concludes thatthe public trialright does not attach to the closures inthis case. I disagree. The publictrial right attaches to proceedings thatimplicate the core values ofthe publictrial right. 

### State v. Sublett, 176 Wn.2d 58, 72-73, 292 P.3d 715 (2012). We applythe experience and logic testto determine whetherthose
core values are implicated. 

### Id. at 73. Ifthe publictrial right attaches, the failure to conduct a

### Bone-Club3 

### analysis on therecord before closing the courtroom is structural
error. 

### Wise, 176 Wn.2d at 13-14. Inthis case, experience and logic indicatethat closingthe courtroomto discuss evidence andtestimony during trial implicates the public trial right.4 

### Thetrial court did not conduct a

### Bone-Club analysis, and therefore structural error occurred. 

### ExperienceProng The experience prong asks "'whethertheplace andprocess havehistorically been opento thepress and generalpublic.'" 

### Sublett, 176 Wn.2d at 73 (quoting

### Press3

### State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995) (describingthe analysis that atrialjudge must make before closingthe courtroom). 4 

### Smith does not argue that the first private meeting to discuss atime for recess implicates the public trial right, and I agree that it does not. 4State v. Smith No. 85809-8 Owens, J., Dissenting


### Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735,92 L. 

### Ed. 2d 1 (1986)). The majority erroneously concludes that "[s]idebar conferences have historically occurred outsidethe view ofthe public." Majority at 7. That conclusion oversimplifies the matter because the history onthis issue is, at best, unclear. In my experience, manyjudges do not close or leave the courtroomto discuss evidentiary challenges. Rather, manyjudges exclude thejury and discuss the matter in open court. This practice dates backto the early days ofourjudiciary. See State v. 

### Coella, 3 Wash. 99, 118,28P. 28 (1891) (holding that defendant did nothave aright to have thejurypresent during argument over proposedjuryinstructions; rather, "the safer course and betterpractice wouldbeto excludethejury"); Gilcher v. 

### Seattle Elec. Co., 82 Wash. 414,415, 144 P. 530 (1914) ("[I]t is withinthe discretion ofthe trial judgeto excludethejury during the argument ofcounsel upon legal questions arising during the trial."); see also State v. Cooper, 26 Wn.2d 405, 416, 174 P.2d 545 (1946) (trialjudge sentthejury out so the court could hear argument after co-defendantmade
a suddenrequestto "'verify"' a confession as it was beingread); State v. Barker, 56 Wash. 510, 511-12, 106 P. 133 (1910) (trialjudge sent thejury out so the court could discuss an objectionto witness testimony); State v. Carlson, 80 Wn. App. 116, 120, 906 P.2d 999 (1995) (same). Thejudges who choose to discuss evidentiary challenges outside ofthe courtroom do so out ofmere convenience. See, e.g., State v. Smith, noted at 159 Wn.

5State v. Smith No. 85809-8 Owens, J., Dissenting 

### App. 1011, 2011 WL 55972, at *2 n.2,5 

### reviewgranted inpart, 176 Wn.2d 1031, 299 P.3d 20 (2013); 

### In re Det. ofTiceson, 159 Wn. App. 374, 386 n.38, 246 P.3d 550 (2011) (relied onbythe majority at 7-8;justifying an in-chambers sidebarbecause interrupting trial to sendthejuryout could cause "long delays"). Themajority condones this practice, preferringnotto annoyjurorswith "constant[] marching in and out ofthe courtroom" at the expense ofour constitutional dutyto ensure apublic trial. Majority at 12 n.l3. Our constitution cannotbowto convenience. 

### See State v. Frawley, No. 80727- 2, slip op. at 8 (Wash. Sept. 25, 2014) (lead opinion) (stating that a

### Bone-Club analysis "ensures that courtproceedings are not closed merely for the sake of convenience as a matter ofcourse"). A trialjudgehas the constitutional duty to
ensurethat trials are opento thepublic, even ifthat means that thejurymust enter and exitthe courtroom severaltimes during evidentiary discussions. I also note thatin this case the courtheld 12 privatemeetings overthe course ofthree days. I seeno greatburden inremoving andreseating ajury approximatelyfour times a dayto carry outthe commands ofour constitution. And, ifajudge does face a serious obstacle to

5

### The Court ofAppeals noted, "Thepractical configuration ofthe courtroomprompted thejudge and attorneys to go outside becausethey couldnotrecord a conversation at the benchwithoutthejuryoverhearing. It

### was amatter ofconvenience. Ratherthanhaving thejuryexitthe courtroom, thejudge and attorneys would step outside to discuss the evidentiary and legal matters that arose during trial." Smith, 2011 WL 55972, at *2 n.2. 6State v. Smith No. 85809-8 Owens, J., Dissenting 

### removing thejury, a contemporaneous

### Bone-Club analysis, ontherecord, could justifythe closure. The majority does little to refute the fact thatmanyWashington courts have historicallykept the courtroom open during evidentiary challenges. It

### cites two trial advocacytreatises that do not considerthe specialrequirements ofour state's constitution and one case from this court thathas nothing to do withprivate 

### evidentiarydiscussions. Majority at 7 (citing 

### State v. Swenson, 62 Wn.2d 259, 272, 382 P.2d 614 (1963) (permitting a sidebar discussion to discuss witness comfort, not to discuss challenges to evidence or testimony)). While Iknowthat some courts have developed a localpractice ofclosing or leaving the courtroom during evidentiary challenges, I cautionthatwhen applying the logic and experience test, wemustnot forget that the presumption is in favor ofopenness. 

### State v. Paumier, 176 Wn.2d 29, 34-35, 288 P.3d 1126 (2012). Therefore, to the extentthathistory or localpractice conflicts, we must err onthe side ofopenness. Whilethis courthas recognizedthat the experience and logic test is not perfect, 

### Sublett, 176 Wn.2d at 75, wehavenever questioned thepresumption ofopenness. Experience indicates thatthe evidentiary challenges involvedin this casehavebeenhistorically opento thepress andpublic. 

### LogicProng "Thelogic prong asks 'whetherpublic access plays a significantpositiverole in the functioning oftheparticularprocess in question."' 

### !d. at 73 (quoting

### Press-Enter.,

7State v. Smith No. 85809-8 Owens, J., Dissenting 

### 478 U.S. at 8). The majority concludes that "[n]othing is added to the functioning of the trial by insisting thatthe defendant or public be present" during the discussions at issue. Majority at 13. Themajority reasons that defendants do nothave arightto be present at all stages, and for the public, some legal discussions are "practically a foreign language." 

### Id. I disagree. The majority overlooks the verypurposes ofthe rightto an open andpublic trial. A publictrial helps ensure thatjudges and lawyers are accountable for what
occurs during trial. It

### helps remind them to act with decorum andto considerthe consequences oftheir actions. Logically, this is perhaps most important during arguments over what evidence and testimony thejurywill hear. Whether a keypiece ofevidence is admitted ornot could decide the outcome ofthe entire trial. We should not allow attorneys andjudges to makethese important decisions in abackhallway, away from public scrutiny. Theproper forum for argument onthese issues is in open court. Publictrials also help foster trust in ourjudicial system, and they allow members ofthe publicto seejustice done in their communities. Logic indicates that hiding discussions over evidence and testimony in private will not further these goals. One can easily imagine a scenario where aparty attempts to admit a keypiece of evidence-the "smoking gun"-onlyto be met with an objection and aprivate conference where thejudgedetermines that the evidence is inadmissible. Thepublic

8State v. Smith No. 85809-8 Owens, J., Dissenting 

### is leftwondering whathappenedto the smoking gun mentionedjustmoments ago and why thejury is being told to forget that it ever existed. Logically, it follows thatthe public's trust in ourjustice system will weaken. I also disagree withthe assumptionthat the public will not comprehendthe "foreignlanguage" oflegal argument. 

### !d. Trial observers often include close family members ofthe defendant orthe victims who have followed the case from the very start. These observers mayhave metwiththe attorneys orhaveresearched the law independently and are eagerto hear the legal arguments that coulddecide the case. Additionally, manypractitioners and students attend trials to learn and to seejustice in action. We shouldnot allow the trial courtto obscure legal discussions from these observers. Withoutthe publicitythat comes withhearing evidentiary arguments in open court, a defendant is stripped oftheprotections offeredby ourpublic trial right and the public's confidence in ourjudicial system is weakened. Logic indicates that public access plays a significantpositiverole in the functioning ofthese evidentiary discussions. CONCLUSION Experience and logic showthatthe publictrialright attaches to the evidentiary discussions in this case. Therefore, the trial court committed structural errorwhen it closedthe courtroom on 12 occasions without first conducting aBone-Club analysis.

9State v. Smith No. 85809-8 Owens, J., Dissenting


### In concluding otherwise, the majority fails to considerthe core values that ourpublic trial right protects and favors convenience over our constitution. I respectfully dissent.

10State v. Smith No. 85809-8 Owens, J., Dissenting

11

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