In Commonwealth v. Cohen, the Supreme Judicial Court noted that "the right to a public trial, like other structural rights, can be waived." Commonwealth v. Cohen. 456 Mass. 94, 105-106 (2010).
A defendant’s waiver of his right to a public trial is effective only if it is “knowing, intelligent and voluntary”. See Commonwealth v. Williams, 379 Mass. 874, 876 (1980), citing Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979) (waiver of public trial right must be intentional and knowing). See also Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 340 n.1 (1994) (in light of Williams, defendant’s waiver of his right to public trial is effective only if it is “knowing, intelligent and voluntary”). Such waiver must be “explicit”. See Commonwealth v. Peterson, 445 Mass. 782, 785-86 (2006). See also Commonwealth v. Edward, 75 Mass. App. Ct. 162, 173 n.13 (2009) (“a valid waiver [of the public trial right] requires the defendant’s knowing assent”). Accord United States v. Canady, 126 F.3d 352, 359 (2nd Cir. 1997) (addressing waiver of defendant’s public trial right, the court stated, “[a] waiver of a constitutional right must be voluntary, knowing and intelligent, that is, the act of waiver must be shown to have been done with awareness of its consequences”); Walton v. Briley, 361 F.3d 431, 434 (7th Cir. 2004) (like other fundamental trial rights, a right to a public trial may be relinquished only upon a showing that the defendant knowingly and voluntarily waived such a right).
"While neither a written waiver nor oral colloquy is required, and the defendant's assent to waiver need not necessarily appear on the record, the burden is on the Commonwealth to establish that the defendant knowingly waived his right to public trial either personally or through counsel." Commonwealth v. Downey. 78 Mass.App.Ct. 224, 230 (2010).
While there are many open questions about what might constitute a knowing waiver, the SJC has recognized that a defendant’s request for and the trial judge’s allowance of individual juror voir dire examinations does not implicitly constitute a waiver of the public trial right. In Cohen, the SJC explained:
Individual juror voir dire examinations in this case were conducted out of hearing of the defendant and the public, but the voir dire examination process itself took place, as it should have, in open court. Conducting such voir dire examinations in open court permits members of the public to observe the judge, as well as the prospective jurors. Even though the public cannot hear what is being said, the ability to observe itself furthers the values that the public trial right is designed to protect. The defendant had a right to have the public present during these individual juror examinations, just as he had a right during the trial to have spectators present in the court room while sidebar conferences took place out of their earshot.
Cohen, 456 Mass. at 117 (citations omitted). The SJC explained further:
Moreover, the jury selection proceedings also included voir dire questions publicly posed to the venire as a group, to which potential jurors gave substantive responses by raising their hands. The defendant had, and did not waive, the right to have the public hear the judge's questions and witness the prospective jurors' responses.
Id. (citations omitted).
The significance of the restrictive waiver doctrine in the public trial context is illustrated by Commonwealth v. Edward. In Edward, the defendant did not raise the claim that his right to a public trial had been violated until thirteen years after his direct appeal. See Edward, 75 Mass. App. Ct. at 163. Despite this delay, this Court held that “a conclusion that the defendant’s right to a public trial was violated does not lead us to the substantial risk analysis.” Id. at 173. After noting that the violation of the right to a public trial “is a structural error that relieves the defendant of the need to show prejudice in order to obtain a new trial”, id., the Appeals Court noted that in order to establish waiver, the Commonwealth had to demonstrate “the defendant’s knowing agreement” to waiver of the right. Id. Compare State v. Strode, 217 P.3d 310, 315 and n.3 (Wash. 2009) (defendant’s failure to lodge a contemporaneous objection at trial to violation of right to public trial did not effect a waiver; “the right to a public trial can be waived only in a knowing, intelligent and voluntary manner”; there was no record evidence of such a waiver). Contrast Crawford v. Minnesota, 498 F.3d 851 (8th Cir. 2007) (finding valid waiver of right to public trial where the defendant had not merely failed to object to a partial courtroom closure, but had agreed to it after the court had previously discussed the issue on the record); Hutchins v. Garrison, 724 F.2d 1425 (4th Cir. 1983) (defendant’s waiver of right to public trial was knowing and intelligent because he agreed to closed hearing to consider motion to dismiss after his counsel explained the public trial right and waiver of that right to him and the trial court advised the defendant of his right to an open hearing); Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979) (finding waiver of right to public trial where “counsel fully explained [violation of right] to petitioner, [and his decision not to object] and then informed his client that 'at any time he wanted to' he could get up and object himself, which petitioner did not do”).