FILE 

IN CLERK'S OFFICE 

SUPREME COURT, STATE OF WASHINGTON 

DATE SEP 2 5 2014 

...... ,,. •' 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

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 of whether sidebar 

conferences implicate a criminal defendant's right to a public trial under 

article I, section 22 of the 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 

*Justice James M. Johnson is serving as a justice pro tempore ofthe Supreme Court 

pursuant to Washington Constitution article IV, section 2(a). 
State v. Smith, No. 85809-8 

court did not perform a Bone-Club analysis, he requests that this court reverse 

his conviction and grant him a new trial. 

We hold that sidebars do not implicate the public trial right. This court 

uses the experience and logic test to evaluate whether a particular proceeding 

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 open to the 

public and because allowing public access would play no positive role in the 

proceeding. Although the practice of holding 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 of Appeals. 

FACTS AND PROCEDURAL HISTORY 

Smith was charged by information with 10 counts of third degree rape 

and fourth degree assault with a sexual motivation. Clerk's Papers (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 

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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 Cowlitz County courthouse has a peculiar layout making it difficult 

to hold sidebar discussions between counsel and the trial judge outside the 

jury's hearing. Suppl. Br. ofPet'r, App. A. To avoid contaminating the jury 

with potentially prejudicial rulings on evidentiary objections, these sidebar 

discussions occur in a hallway outside the courtroom. Id. The judge throws 

a switch before each hallway sidebar that deactivates the recording 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, the jury 

1 The contract also contained a liquidated damages clause provided that if the victim ever 

denied consent, she would have to pay "the Pro-Rated Balance of$10,000.00 ten thousand 

dollars minus $1,000.00 one thousand dollars per year." Ex. 5. 

2 The dissent agrees that the sidebar to discuss a time for recess does not implicate the 

public trial right. Dissent at 4 & n.3. This position is inconsistent and comes 

dangerously close to one of the "ministerial" proceedings that are allowed under the 

legal-factual test rejected in Sublett. The dissent cites Justice Stephens' Sublett 

concurrence for the proposition that the public trial right does not attach to "brief sidebars 

to allow counsel to raise concerns that may need to be taken up outside the jury's 

presence." Id. at 2 n.2. All sidebars have to take place outside the presence of the jury 

because hearing the content would expose the jury to potentially prejudicial evidence. 

3 Although the parties disagreed about whether to characterize these hallway conferences 

as "sidebars" or something else, we analyze them as sidebars here because that is the role 

these conferences played in the trial. The analysis would not change for on the record 

evidentiary conferences in chambers. 

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State v. Smith, No. 85809-8 

convicted Smith on four counts of third degree rape and one count of second 

degree perjury. 

On direct appeal Smith alleged, among other things, that 12 of the 

hallway sidebars violated his public trial right because the trial court failed to 

conduct a Bone-Club analysis. Pet. for Review at 4. Division Two of the 

Court of Appeals 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 1031,299 P.3d 20 (2013). 

ISSUE 

The issue is whether sidebar conferences on evidentiary matters in a 

hallway outside the courtroom implicate the public trial right.4 

4 The parties also disputed whether Smith invited this alleged error. It is not necessary to 

address that issue here because we find the constitutional right does not attach to traditional 

sidebars, like those here. 

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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, 122 P.3d 150 (2005) (citing Bone-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, Chief Justice Madsen 

laid out a helpful analytical framework that guides our analysis of public trial 

right cases. We 

begin by exammmg . . . whether the public trial right is 

implicated at all . . . then turn to the question whether, if the 

public trial right is implicated, there is in fact a closure of the 

courtroom; and if there is a closure, whether ... the closure was 

justified. 

176 Wn.2d at 92 (Madsen, C.J., concurring). Application of these rules and 

framework in this case should provide guidance to trial courts in future cases. 

We adopt this three-step framework here. 5 

5 Sublett could be read as requiring a two part analysis, first asking whether the public 

trial right attaches and then turning to whether there was a violation of the right. 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 whether that closure was justified 

because a closure after the trial court conducts a Bone-Club analysis does not violate the 

right. State v. Frawley, No. 80727-2, slip op. at 7 (Wash. Sept. 25, 2014) (lead opinion). 

In both State 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 

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State v. Smith, No. 85809-8 

1. Does the proceeding at issue implicate the public 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 of Appeals 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 of Appeals used the legal-factual test. Smith, 2011 

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

decided Sublett, which rejected the old legal-factual distinction in favor of the 

experience and logic test to determine whether the proceeding at issue 

implicates the public trial right. 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)). 

"The first part of the test, the experience prong, asks 'whether the place 

and process have historically been open to the press and general public.' The 

logic prong asks 'whether public access plays a significant positive role in the 

functioning of the particular process in question."' !d. (citations omitted) 

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

all, ending the inquiry before we reached the question of whether a Bone-Club analysis 

occurred to justify the alleged closures. 

6 As shorthand, we label it here the "legal-factual test." 

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State v. Smith, No. 85809-8 

openness will 'enhance[] both the basic fairness of the criminal trial and the 

appearance of fairness so essential to public confidence in the system.'" I d. 

at 75 (alteration in original) (quoting Press-Enter. Co. v. Superior Court, 464 

U.S. 501, 508, 104 S. Ct. 819,78 L. Ed. 2d 629 (1984)). 

a. The Experience Prong 

Sidebar conferences have historically occurred outside the view of the 

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 

GENERAL PRACTICE CONTAINING RULES AND SUGGESTIONS FOR THE WORK OF 

THE ADVOCATE IN THE PREPARATION FOR TRIAL, CONDUCT OF THE TRIAL AND 

PREPARATION FOR APPEAL 714 (1894) (advocating offers of proof in response 

to evidentiary objections in writing or otherwise outside the jury's hearing); 

JAMES W. JEANS, TRIAL ADVOCACY§ 14.7, at 355 (1975) (advocating use of 

sidebar conferences as the preferred practice to address issues discreetly 

outside the hearing of the jury); see also In re Det. of Ticeson, 159 Wn. App. 

374, 384-86, 246 P.3d 550 (2011) (abrogated for use of the legal-factual test). 

The defendant in Ticeson invoked his public trial right to challenge an inchambers conference on the admissibility of "certain deposition testimony." 

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State v. Smith, No. 85809-8 

Ticeson, 159 Wn. App. at 378. In rejecting the defendant's claim, the Ticeson 

court noted that 

In the case of sidebar discussions, issues arising with the 

jury present would always require interrupting trial to send the 

jury to the jury room, often located some distance from the 

courtroom, thereby occasioning long delays every time the court 

wishes to caution counsel or hear more than a simple "objection, 

Your Honor." This would do nothing to make the trial more fair, 

to foster public trust, or to serve as a check on judges by way of 

public scrutiny. 

Id. at 386 n.38. The court reasoned that the "public trial right is not served by 

such a reading, and the ability of judges [to run orderly courtrooms] would be 

greatly hindered without a corresponding public benefit." Id. at 386.7 

Smith offers no effective response to this history or the practical 

difficulties in extending our public trial jurisprudence to sidebar conferences 

on evidence. 8 Without any evidence the public has traditionally participated 

7 While Smith alleges a violation of his 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 of public 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 1 0 might be different from the 

section 22 criminal case before us now, sidebars are not traditionally open in either civil or 

criminal trials. 

8 The dissent downplays the inconvenience of sending the jury out of the courtroom 

"approximately four times a day." Dissent at 6. But neither Smith nor the dissent can 

point to any case holding that sidebar conferences to address speaking objections to 

evidence during trial are unconstitutional. Such a holding would be unprecedented and 

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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 of his undercover activities. I d. at 257. 

Sidebars are different. Pretrial suppression hearings rule on issues with a 

significant impact in the community.9 Proper sidebars, on the other hand, 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 not merely "bow[ing] to convenience;" it is a proper application of the 

experience and logic test to a prolific and historic practice. !d. 

9 One example is whether a police search violated a defendant's privacy rights under 

article I, section 7 of the Washington State Constitution. 

10 We caution that merely characterizing something as a "sidebar" does not make it so. 

To avoid implicating the public trial right, sidebars must be limited in content to their 

traditional subject areas, should be done only to avoid disrupting the flow of trial, and 

must either be on the record or be promptly memorialized in the record. Whether the 

event in question is actually a sidebar is part of the experience prong inquiry and is not 

subject to 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 of the appearance of impropriety. Courts have a 

strong "interest in protecting the transparency and fairness of criminal trials." 

ld. at 178. The proceeding in Easterling "undermined the fairness of the 

process" because the defendant and his attorney were excluded from the 

pretrial hearing along with the rest of the 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 of cross 

examination of two 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 of sidebars here-contemporaneously 

addressing speaking objections throughout trial-and the motions in 

Rovinsky. The motions concerned two specific witnesses and were brought 

before trial commenced but not considered until both witnesses had provided 

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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 a public trial." Id. at 

201. The public trial right is, among other things, a prophylactic measure 

allowing the public to observe the process and weigh the 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 of the 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 prior to a baseball 

game versus the umpire calling balls and strikes during the game. Pretrial motions set the 

rules of a trial while a judge's rulings on evidence determine whether a party has strayed 

outside those rules. 

12 We in no way question the importance of the public trial right in Washington. 

Rovinsky applies to the federal public trial right. Our founders enshrined the public trial 

right in article I of our state constitution. The right to a public trial is a core safeguard to 

the justice system and fair trials, and it is an important check on the judiciary. Wise, 176 

Wn.2d at 5-6. 

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State v. Smith, No. 85809-8 

b. The Logic Prong 

The logic prong asks "'whether public access plays a significant 

positive role in the functioning of the particular process in question."' Sublett, 

176 Wn.2d at 73 (quoting Press-Enter., 478 U.S. at 8). Smith articulates no 

specific interest that is served by ensuring that the public is privy to a sidebar, 

and it is difficult to conceive of one. Indeed, forcing the jury in and out of the 

courtroom repeatedly whenever an objection is made at trial would be a 

problematic practice. 13 But more importantly, evidentiary rulings that are the 

subject of traditional sidebars do not invoke any of the concerns the public 

trial right is meant to address regarding perjury, transparency, or the 

appearance of fairness. See Sublett, 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. Nothing positive 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 Richmond Newspapers, 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 that juries follow their instructions, we must also acknowledge that 

juries are made of imperfect human beings subject to the annoyance of constantly 

marching in and out of the 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. For the public, discussions on hearsay 

and the prior inconsistent statement exception are practically a foreign 

language. Such rulings are exclusively within the province of the trial judge 

under ER 104(a). Nothing is added to the functioning of the trial by insisting 

that the defendant or public be present during sidebar or in-chambers 

conferences. Indeed, the trial court did what ER 1 04( c) requires in the interest 

of justice 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 of both the 

jury and the public. Because allowing the public to "intrude upon the 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 the judge and counsel necessarily 

speak in hushed voices to prevent the jury from overhearing potentially prejudicial 

information. Spectators in the pews behind counsel tables are often farther away from the 

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State v. Smith, No. 85809-8 

Finding that the sidebars or evidentiary conferences in this case did not 

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 in the future. 

2. Was there a closure? 

A closure occurs "when the courtroom is completely and purposefully 

closed to spectators so that no one may enter and no one may leave." State v. 

Lormor, 172 Wn.2d 85, 93,257 P.3d 624 (2011). This court has adopted the 

experience and logic test to determine whether a closure occurred in the 

absence of an express closure on the record. In re Pers. Restraint of Yates, 

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 court need not reach this step if the answer to the first question is 

negative. Because the sidebar conferences in this case do not implicate the 

public trial right, the court need not determine whether they were closed. 

bench than the jury. If the jury cannot hear a sidebar, then the public almost certainly 

cannot hear it either. 

-14-
State v. Smith, No. 85809-8 

3. Was the closure justified? 

A closure unaccompanied by a Bone-Club analysis on the record will 

almost never be considered justified. 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 of discretion. 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's public 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, because the sidebar conferences in this case do not implicate the 

public trial right, the court does not consider whether the alleged closure was 

justified. 

CONCLUSION 

This court accepted review on several public trial rights cases this term 

to clarify the law in this field. We have partially adopted the framework 

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State v. Smith, No. 85809-8 

advocated by Chief Justice Madsen in Sublett. The steps of this public trial 

right framework are: (1) Does the proceeding at issue implicate the public trial 

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 ones presented in this case have not traditionally 

been open to the public and injecting the public into sidebars would have no 

positive impact. Accordingly, sidebar conferences do not implicate the public 

trial right. 

Because reasonable and traditional sidebars used to avoid interruption 

of a trial do not implicate the public trial right, the court need not reach the 

remaining two steps of the public trial right framework here. We affirm the 

Court of Appeals with the caveat that the legal-factual test it relied on was 

rejected in Sublett. 

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State v. Smzth, . No . 85809-8 

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 subject to the Washington Constitution's command that justice 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 draw clear lines between trial procedures that should be open and those 

that can be closed. 

We embarked on this journey with the best of intentions: to invigorate our open 

courts jurisprudence 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 to 
No. 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 order to close a phase of trial, a trial judge 

must conduct a Bone-Ciub1 analysis on the record. And on appeal, I would 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 

implicates the public trial right. Sublett, 176 Wn.2d at 72-73. If we find 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). 

2 
No. 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 of Morris, 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 City of Federal 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 of the 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 fair trial, 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. 

3 
No. 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 of voir 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. If the 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)). 

4 
No. 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 1 O'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 of justice in that particular case. 

A. Fails to account for our constitution's unique emphasis on open proceedings 

Washington is one of a number of states whose constitutions (unlike the United 

States Constitution) explicitly guarantee the open administration of justice. 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 of justice. 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 text and fu_nctign_ of article 

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 First Amendment and made explicit in the Sixth Amendment. U.S. CONST. 

amends. I, VI ("the accused shall enjoy the right to a speedy and public trial"). 

5 
No. 85809-8 (Wiggins, J., concurring in result) 

and to discourage perjury."' State v. Strode, 167 Wn.2d 222, 226, 217 P.3d 310 (2009) 

(quoting State v. Brightman, 155 Wn.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 the jury, 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, 176 Wn.2d at 147), nor to an in-chambers discussion of jury 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 of the case. Dissent at 8. Without openness, the public is left to wonder why 

certain evidence was excluded; "[l]ogically, it follows that the public's trust in our justice 

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 of certain 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 of fairness so essential to public confidence in the system.'" Majority 

at 7 (alteration in original) (internal quotation marks omitted) (quoting Sublett, 176 

6 
No. 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 questions from juries (Sublett, 176 Wn.2d 58), 

or the Smith trial sidebars. But never have we explained why openness in 

proceedings that we 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 show that 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 

7 
No. 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 if the sidebars involve suppression of a key piece of evidence? 

The logic and experience test is incorrect because it places categorical limits on 

openness that might bar future requests for access to administration of justice 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 of justice because history often leans in favor 

of permitting the closure. 

A. Fails to provide guidance 

In the 15 years since Bone-Club, our courts have vacated dozens of convictions 

in cases where no Bone-Club analysis was performed.4 In the wake of these 

4 See, e.g., In re Pers. Restraint of D'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 ), review granted in part, 176 Wn.2d 1031 (2013); State v. Tinh Trinh Lam, 161 

8 
No. 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 Slert finds 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 Slert dissent, however, points out 

that several jurors were dismissed for cause after filling out the questionnaire, 

indicating that this was voir dire and not "a precursor to voir dire." S/ert, slip op. at 1 

(dissent) (emphasis added). Arguably, the logic and experience test should have been 

easily applied to S/ert under our past precedent. Like Wise and Paumier, S/ert 

involved erroneous closure of a portion of the 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 ), review granted, 176 Wn.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), review granted, 176 Wn.2d 1030 (2013). 

9 
No. 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, 17 4 Wn. App. 328, 298 P.3d 148 

(2013) (right does not attach to excusal of jurors for illness related reasons because 

this is pretrial juror excusal, not voir dire). But see 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 

involving jury selection, the court held that the public trial 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 of juries-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 of the 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, 176 Wn. App. at 918. 

10 
No. 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 many judges 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 of a case. !d. at 8. Accordingly, the dissent concludes 

that it is important to make this process open to the public. !d. If the same judges 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. But what will 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. 

11 
No. 85809-8 (Wiggins, J., concurring in result) 

Or what if, as unlikely as it seems, the trial judge makes biased or improper statements 

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 if there is absolutely no record of what was discussed 

at sidebar? 

The logic and experience test is harmful because it adds to the confusion rather 

than providing clear guidance to trial and appellate judges. 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 of Open 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 our trial 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 favor of closure 

Finally, the logic and experience test is harmful because it has justified and will 

likely continue to justify closures. A survey of what 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. of Ticeson, 

159 Wn. App. 374,384-85,246 P.3d 550 (2011), abrogated on other grounds by 

12 
No. 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 of Appeals 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 how to proceed if it felt it was deadlocked); State v. McCarthy, 178 Wn. 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 and Jury 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. 

13 
No. 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 Presume All Stages of Trial 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 of the trial has been closed to the public without objection and without a 

Bone-Club analysis, an appellate court will usually not review the 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 of actual 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 of requiring an objection at trial: clear rule for trial judges 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 of trial without 

conducting a Bone-Club analysis. Instead of drawing 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 

14 
No. 85809-8 (Wiggins, J., concurring in result) 

reviewing every claimed violation of the 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 might willingly consent to closing part of a trial 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 7 was 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 of the other jurors 

could have been potentially devastating to Slert's right to a fair trial." Slert, slip op. at 

10. I would hold that neither party should be permitted to benefit by silently allowing 

the trial judge to close a portion of the 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 

15 
No. 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 of requiring an objection: establishes a record, abides by 

our rules of appellate procedure, and protects the public trial right 

Requiring an objection in most cases has the benefit of developing 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 of the 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 neither the 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 of the parties 

to raise any objection and to establish a record of closure, 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 deliberating jury. But the record only showed that the jury 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 the judge 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 of the prospective jurors 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. 

16 
No. 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 of actual prejudice; that is, the defendant must show the 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 of the limited resources of prosecutors, public defenders and courts." State 

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

v. Lynn, 67 Wn. App. 339, 343-44, 835 P.2d 251 (1992). A judicious application of the 

"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 subject to harmless error review." 

/d. (citing O'Hara, 167 Wn.2d at 98-99). 

Finally, requiring an objection protects the public trial 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 of the 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 of the 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 

18 
No. 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 of what 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 of Appeals, but I would so hold 

because Smith did not object at trial, and he has not satisfied the requirements of RAP 

2.5(a)(3). 

19 
No. 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's trial, the judge and 

attorneys left the courtroom and gathered in a nearby hallway to hold private meetings 

on 12 occasions. 1 The attorneys made motions to exclude testimony and argued over 

the extent of questioning allowed with certain witnesses, and the judge made rulings 

regarding the admissibility of evidence and testimony. Those rulings helped shape the 

course of the trial, yet neither the public nor the defendant witnessed them. 

The majority condones this secretive process, failing to consider the purposes 

behind our constitutional protection of the right to a public trial. Our constitution 

protects the right to a public trial and demands the open administration of justice 

because they are core safeguards in our system of justice. A public trial helps to 

ensure a fair trial by deterring misconduct and partiality. Also, as this court has said 

before, a public trial "provides for accountability and transparency, assuring that 

1 The judge closed the courtroom on one other occasion to discuss when to take a recess. 

Smith does not argue that this closure implicated his right to a public trial. 
State v. Smith 

No. 85809-8 

Owens, J., Dissenting 

whatever transpires in court will not be secret or unscrutinized. 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 in this 

case violated Smith's right to a public trial. I dissent. 

FACTS 

During Smith's trial, the judge and the attorneys held 12 private meetings in a 

back ha'ilway. The majority dismisses these closures as "sidebars," but that 

generalization mischaracterizes the nature of these meetings.2 The following 

summary shows that these discussions were challenges to evidence and testimony 

during trial, and-as explained below-experience and logic dictate that these 

discussions implicate the public trial right: 

1. The court clarified a previous ruling regarding the admissibility of ER 

404(b) evidence of a common scheme and overruled defense counsel's 

objection to testimony of a prior bad act. 

2. Parties argued over whether one alleged victim could testify that she spoke 

with another alleged victim on the phone. The court overruled the prosecutor's 

relevancy objection and allowed the testimony. 

3. Parties argued over whether a lay witness may offer opinion testimony and 

whether circumstantial evidence of the alleged victim's mental capabilities was 

admissible. The court excluded the opinion testimony but ruled that the 

circumstantial evidence was admissible. 

2 True sidebars are generally permissible-especially when held in open court. See State 

v. Sublett, 176 Wn.2d 58, 140,292 P.3d 715 (2012) (Stephens, J., concurring) (condoning 

"brief sidebars to allow counsel to raise concerns that may need to be taken up outside the 

jury's presence"). 

2 
State v. Smith 

No. 85809-8 

Owens, J., Dissenting 

4. Parties argued over whether the alleged victim could be impeached with a 

prior inconsistent statement. The court overruled the prosecutor's objection 

and allowed the question. 

5. Parties argued over whether a detective was qualified to offer an opinion of 

handwriting found in the defendant's car. The court sustained defense 

counsel's objection and did not allow the opinion testimony. 

6. In the hallway, the prosecutor preemptively moved to exclude Smith's 

statement to police that the sex was consensual as self-serving hearsay, but 

prior to the conclusion of the argument the court recessed. Then in open court, 

but before the jury returned, the court ruled that the statement was admissible to 

show that it was made, but not for the truth of the matter asserted. 

7. Parties argued whether a police photograph of the alleged victim was 

inadmissible for lack of relevance. The court sustained the prosecutor's 

objection and ruled that the photograph was inadmissible. 

8. Parties argued over the admissibility of Smith's written statement because it 

was prepared by police and then adopted by the defendant. The court overruled 

defense counsel's objection and ruled that the statement was admissible. 

9. Parties argued over whether the treating physician could testify about the 

alleged victim's identification of the perpetrator. The court ruled that the 

testimony was inadmissible but defense counsel could impeach the alleged 

victim using it as a prior inconsistent statement. 

10. Parties argued over whether the prosecutor had laid proper foundation to 

admit nude photographs of the alleged victim. The court overruled defense 

counsel's objection and ruled that the photographs were admissible. 

11. The prosecutor moved to admit receipts for lingerie and other sexual items 

found in Smith's residence. The court overruled defense counsel's objection 

and ruled that receipts of sexual items found by the detective were admissible. 

12. Parties argued over whether the prosecutor could ask Smith if he told his 

wife he did not sleep with the alleged victim. The court overruled defense 

counsel's objection and allowed the question to show that Smith may have lied. 

3 
State v. Smith 

No. 85809-8 

Owens, J., Dissenting 

These closures occurred over the course of a three-day trial. The jury convicted Smith 

of four counts of third degree rape and one count of second degree perjury. 

ANALYSIS 

The majority concludes that the public trial right does not attach to the closures 

in this case. I disagree. The public trial right attaches to proceedings that implicate 

the core values of the public trial right. State v. Sublett, 176 Wn.2d 58, 72-73, 292 

P.3d 715 (2012). We apply the experience and logic test to determine whether those 

core values are implicated. Id. at 73. If the public trial right attaches, the failure to 

conduct a Bone-Club3 analysis on the record before closing the courtroom is structural 

error. Wise, 176 Wn.2d at 13-14. In this case, experience and logic indicate that 

closing the courtroom to discuss evidence and testimony during trial implicates the 

public trial right.4 The trial court did not conduct a Bone-Club analysis, and therefore 

structural error occurred. 

Experience Prong 

The experience prong asks "'whether the place and process have historically 

been open to the press and general public.'" Sublett, 176 Wn.2d at 73 (quoting Press3 State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995) (describing the 

analysis that a trial judge must make before closing the courtroom). 

4 Smith does not argue that the first private meeting to discuss a time for recess implicates 

the public trial right, and I agree that it does not. 

4 
State 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 outside the view of the public." Majority at 7. That conclusion 

oversimplifies the matter because the history on this issue is, at best, unclear. 

In my experience, many judges do not close or leave the courtroom to discuss 

evidentiary challenges. Rather, many judges exclude the jury and discuss the matter 

in open court. This practice dates back to the early days of our judiciary. See State v. 

Coella, 3 Wash. 99, 118,28 P. 28 (1891) (holding that defendant did not have aright 

to have the jury present during argument over proposed jury instructions; rather, "the 

safer course and better practice would be to exclude the jury"); Gilcher v. Seattle Elec. 

Co., 82 Wash. 414,415, 144 P. 530 (1914) ("[I]t is within the discretion of the trial 

judge to exclude the jury during the argument of counsel upon legal questions arising 

during the trial."); see also State v. Cooper, 26 Wn.2d 405, 416, 174 P.2d 545 (1946) 

(trial judge sent the jury out so the court could hear argument after co-defendant made 

a sudden request to "'verify"' a confession as it was being read); State v. Barker, 56 

Wash. 510, 511-12, 106 P. 133 (1910) (trial judge sent the jury out so the court could 

discuss an objection to witness testimony); State v. Carlson, 80 Wn. App. 116, 120, 

906 P.2d 999 (1995) (same). 

The judges who choose to discuss evidentiary challenges outside of the 

courtroom do so out of mere convenience. See, e.g., State v. Smith, noted at 159 Wn. 

5 
State v. Smith 

No. 85809-8 

Owens, J., Dissenting 

App. 1011, 2011 WL 55972, at *2 n.2,5 review granted in part, 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 on by the majority at 7-8; justifying an in-chambers sidebar because 

interrupting trial to send the jury out could cause "long delays"). The majority 

condones this practice, preferring not to annoy jurors with "constant[] marching in 

and out of the courtroom" at the expense of our constitutional duty to ensure a public 

trial. Majority at 12 n.l3. 

Our constitution cannot bow to 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 court proceedings are not closed merely for the sake of 

convenience as a matter of course"). A trial judge has the constitutional duty to 

ensure that trials are open to the public, even if that means that the jury must enter and 

exit the courtroom several times during evidentiary discussions. I also note that in 

this case the court held 12 private meetings over the course of three days. I see no 

great burden in removing and reseating a jury approximately four times a day to carry 

out the commands of our constitution. And, if a judge does face a serious obstacle to 

5 The Court of Appeals noted, "The practical configuration of the courtroom prompted 

the judge and attorneys to go outside because they could not record a conversation at the 

bench without the jury overhearing. It was a matter of convenience. Rather than having 

the jury exit the courtroom, the judge and attorneys would step outside to discuss the 

evidentiary and legal matters that arose during trial." Smith, 2011 WL 55972, at *2 n.2. 

6 
State v. Smith 

No. 85809-8 

Owens, J., Dissenting 

removing the jury, a contemporaneous Bone-Club analysis, on the record, could 

justify the closure. 

The majority does little to refute the fact that many Washington courts have 

historically kept the courtroom open during evidentiary challenges. It cites two trial 

advocacy treatises that do not consider the special requirements of our state's 

constitution and one case from this court that has nothing to do with private 

evidentiary discussions. 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 I know that some courts have 

developed a local practice of closing or leaving the courtroom during evidentiary 

challenges, I caution that when applying the logic and experience test, we must not 

forget that the presumption is in favor of openness. State v. Paumier, 176 Wn.2d 29, 

34-35, 288 P.3d 1126 (2012). Therefore, to the extent that history or local practice 

conflicts, we must err on the side of openness. While this court has recognized that 

the experience and logic test is not perfect, Sublett, 176 Wn.2d at 75, we have never 

questioned the presumption of openness. Experience indicates that the evidentiary 

challenges involved in this case have been historically open to the press and public. 

Logic Prong 

"The logic prong asks 'whether public access plays a significant positive role in 

the functioning of the particular process in question."' !d. at 73 (quoting Press-Enter., 

7 
State 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 that the defendant or public be present" during the discussions at 

issue. Majority at 13. The majority reasons that defendants do not have a right to be 

present at all stages, and for the public, some legal discussions are "practically a 

foreign language." Id. I disagree. The majority overlooks the very purposes of the 

right to an open and public trial. 

A public trial helps ensure that judges and lawyers are accountable for what 

occurs during trial. It helps remind them to act with decorum and to consider the 

consequences of their actions. Logically, this is perhaps most important during 

arguments over what evidence and testimony the jury will hear. Whether a key piece 

of evidence is admitted or not could decide the outcome of the entire trial. We should 

not allow attorneys and judges to make these important decisions in a back hallway, 

away from public scrutiny. The proper forum for argument on these issues is in open 

court. 

Public trials also help foster trust in our judicial system, and they allow 

members of the public to see justice 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 a party attempts to admit a key piece of 

evidence-the "smoking gun"-only to be met with an objection and a private 

conference where the judge determines that the evidence is inadmissible. The public 

8 
State v. Smith 

No. 85809-8 

Owens, J., Dissenting 

is left wondering what happened to the smoking gun mentioned just moments ago and 

why the jury is being told to forget that it ever existed. Logically, it follows that the 

public's trust in our justice system will weaken. 

I also disagree with the assumption that the public will not comprehend the 

"foreign language" of legal argument. !d. Trial observers often include close family 

members of the defendant or the victims who have followed the case from the very 

start. These observers may have met with the attorneys or have researched the law 

independently and are eager to hear the legal arguments that could decide the case. 

Additionally, many practitioners and students attend trials to learn and to see justice in 

action. We should not allow the trial court to obscure legal discussions from these 

observers. 

Without the publicity that comes with hearing evidentiary arguments in open 

court, a defendant is stripped of the protections offered by our public trial right and 

the public's confidence in our judicial system is weakened. Logic indicates that 

public access plays a significant positive role in the functioning of these evidentiary 

discussions. 

CONCLUSION 

Experience and logic show that the public trial right attaches to the evidentiary 

discussions in this case. Therefore, the trial court committed structural error when it 

closed the courtroom on 12 occasions without first conducting a Bone-Club analysis. 

9 
State v. Smith 

No. 85809-8 

Owens, J., Dissenting 

In concluding otherwise, the majority fails to consider the core values that our public 

trial right protects and favors convenience over our constitution. I respectfully 

dissent. 

10 
State v. Smith 

No. 85809-8 

Owens, J., Dissenting 

11 

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