State v. MacBale ( 2013 )

No. 31 July 25, 2013 789
IN THE SUPREME COURT OF
THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Adverse Party,
v.
DEAN RAMIZ MacBALE,
Defendant-Relator.
(CC CR1100933; SC S060079)
En Banc
Original proceeding in mandamus.*
Argued and submitted June 6, 2012; resubmitted January 7,
2013.
John Henry Hingson, III, Oregon City, argued the cause
and filed the brief for defendant-relator.
Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and filed the brief for plaintiff-adverse
party. With him on the brief were John Kroger, Attorney
General, and Anna Marie Joyce, Solicitor General.
Margaret Garvin, Portland, filed the brief for amicus
curiae The National Crime Victim Law Institute. With her
on the brief was Amy Liu.
BALMER, C. J.
The petition for writ of mandamus is dismissed.
______________
* On petition for writ of mandamus from an order of Clackamas County
Circuit Court, Eve L. Miller, Judge.
790 State v. MacBale
The defendant in a criminal action in which he was charged with various
sex crimes sought a hearing under OEC 412 to determine the admissibility of
evidence of the alleged victim’s prior sexual behavior, and he moved the trial
court to open that hearing to the public, nothwithstanding the fact that OEC 412
requires that such hearings take place outside the presence of the public. The
trial court granted the motion for the hearing but denied the motion to make
the hearing public. The defendant petitioned the court for a writ of mandamus
directing the trial court to open the OEC 412 hearing to the public, arguing
that the Oregon and United States Constitutions require that hearings under
OEC 412 be conducted in public. Held: Exclusion of the public from hearings
under OEC 412(4) to determine the admissibility of a sex crime victim’s past
sexual behavior under OEC 412(2) does not violate Article I, section 10 or 11, of
the Oregon Constitution, or the First or Sixth Amendment of the United States
Constitution.
The petition for writ of mandamus is dismissed.
Cite as 353 Or 789 (2013) 791
BALMER, C. J.
This is an original proceeding in mandamus. The
issue presented is whether the state or federal constitution
requires that a hearing to determine the admissibility of
a rape victim’s past sexual conduct be open to the public,
notwithstanding that a statute mandates that that hearing
be held outside the presence of the public. Relator is the
defendant in a criminal action in which he has been charged
with various sex crimes. Defendant claims that the alleged
victim made false allegations against him so that she can
later bring a civil action against him for money damages. He
seeks to offer evidence at his criminal trial that the alleged
victim falsely accused men of raping her on two previous
occasions and that she did so for the purpose of financial or
other gain. Before his criminal trial, defendant filed a motion
under OEC 412 for a hearing to determine the admissibility
of evidence of the alleged victim’s prior sexual conduct. He
also moved to allow the public to attend that hearing. The
court granted the motion for a hearing but denied the
motion to make the hearing public, reasoning that OEC 412
requires the hearing to take place outside the presence of
the public.
Defendant petitioned this court for a writ of man-
damus directing the trial court to open the OEC 412 hear-
ing to the public, arguing that the Oregon and United
States constitutions require that hearings to determine the
admissibility of evidence be conducted in public. This court
issued an alternative writ. The presiding judge declined to
change her ruling, and the case now is before us for decision.
For the reasons set forth below, we hold that the exclusion
of the public from hearings under OEC 412(4) to determine
the admissibility of evidence of a sex crime victim’s past
sexual behavior under OEC 412(2) does not violate Article
I, section 10 or 11, of the Oregon Constitution or the First or
Sixth Amendment to the United States Constitution.
Under OEC 412,1 Oregon’s rape shield law, evidence
of a victim’s prior sexual history generally is inadmissible
in a prosecution for rape or certain other sex crimes, except
1
OEC 412 is codified at ORS 40.210.
792 State v. MacBale
to prove motive or bias, or to rebut or explain certain state’s
evidence, or if otherwise constitutionally required. OEC 412
provides, in part:
“(1)  Notwithstanding any other provision of law, in a
prosecution for a crime described in ORS 163.355 to 163.427,
or in a prosecution for an attempt to commit one of these
crimes, the following evidence is not admissible:
“(a)  Reputation or opinion evidence of the past sexual
behavior of an alleged victim of the crime or a corroborating
witness; or
“(b)  Reputation or opinion evidence presented for the
purpose of showing that the manner of dress of an alleged
victim of the crime incited the crime or indicated consent to
the sexual acts alleged in the charge.
“(2)  Notwithstanding any other provision of law, in a
prosecution for a crime described in ORS 163.355 to 163.427,
or in a prosecution for an attempt to commit one of these
crimes, evidence of a victim’s past sexual behavior other than
reputation or opinion evidence is also not admissible, unless
the evidence other than reputation or opinion evidence:
“(a)  Is admitted in accordance with subsection (4) of
this section; and
“(b)  Is evidence that:
“(A)  Relates to the motive or bias of the alleged victim;
“(B)  Is necessary to rebut or explain scientific or
medical evidence offered by the state; or
“(C)  Is otherwise constitutionally required to be
admitted.”
In this case, defendant asserts that evidence of the
alleged victim’s past sexual history is necessary to prove
motive. Specifically, he contends that evidence that the
alleged victim previously falsely accused two other men
of rape tends to prove that she is motivated by a desire to
inflict pain on men with whom she has had consensual sex,
that she is motivated by her pursuit of money to make false
allegations of rape, and that she knows how to manufacture
medical or scientific evidence to support a false rape charge.
Cite as 353 Or 789 (2013) 793
Under OEC 412(4), a defendant who intends to intro-
duce evidence of an alleged victim’s past sexual history must
move the court in writing to offer the evidence, and that
motion must be accompanied by a written offer of proof. If
the court concludes that the motion contains evidence that
is potentially admissible under OEC 412, the court must
permit the defendant to establish the admissibility of that
evidence at an in camera hearing. OEC 412(4) provides:
“(a)  If the person accused of committing rape, sodomy
or sexual abuse or attempted rape, sodomy or sexual abuse
intends to offer evidence under subsection (2) or (3) of this
section, the accused shall make a written motion to offer
the evidence not later than 15 days before the date on which
the trial in which the evidence is to be offered is scheduled
to begin, except that the court may allow the motion to be
made at a later date, including during trial, if the court
determines either that the evidence is newly discovered and
could not have been obtained earlier through the exercise of
due diligence or that the issue to which the evidence relates
has newly arisen in the case. Any motion made under this
paragraph shall be served on all other parties, and on the
alleged victim through the office of the prosecutor.
“(b)  The motion described in paragraph (a) of this sub-
section shall be accompanied by a written offer of proof. If
the court determines that the offer of proof contains evidence
described in subsection (2) or (3) of this section, the court
shall order a hearing in camera to determine if the evidence
is admissible. At the hearing the parties may call witnesses,
including the alleged victim, and offer relevant evidence.
Notwithstanding ORS 40.030(2), if the relevancy of the
evidence that the accused seeks to offer in the trial depends
upon the fulfillment of a condition of fact, the court, at the
hearing in camera or at a subsequent hearing in camera
scheduled for the same purpose, shall accept evidence on
the issue of whether the condition of fact is fulfilled and
shall determine the issue.
“(c)  If the court determines on the basis of the hearing
described in paragraph (b) of this subsection that the evi-
dence the accused seeks to offer is relevant and that the
probative value of the evidence outweighs the danger of
unfair prejudice, the evidence shall be admissible in the
trial to the extent an order made by the court specifies
evidence that may be offered and areas with respect to
794 State v. MacBale
which a witness may be examined or cross-examined. An
order admitting evidence under this subsection may be
appealed by the government before trial.”
(Emphasis added.)
Finally, the rule is explicit that the hearing to
decide relevancy is to be conducted outside the presence of
the public. OEC 412(5) provides:
“For purposes of this section:
“(a)  ‘In camera’ means out of the presence of the public
and the jury[.]”
As a preliminary matter, it is clear from the fore-
going that the statutory requirement that the hearing be
held outside the presence of the public is mandatory; con-
sequently, at least as a statutory matter, the trial judge was
correct to enforce that requirement in closing the hearing
to the public in this case. We therefore turn to defendant’s
contention that OEC 412’s exclusion of the public from
hearings to determine the relevance of evidence is invalid
because is it contrary to Article I, sections 10 and 11, of the
Oregon Constitution and the First and Sixth Amendments
to the United States Constitution. Consistent with our usual
practice to consider state constitutional issues before federal
ones, State ex rel Juv. Dept. v. S. P., 346 Or 592, 606, 215 P3d
847 (2009), we begin by examining defendant’s arguments
that the closed hearing provision of OEC 412 violates the
Oregon Constitution.
We start with the constitutional provisions them-
selves. Article I, section 10, of the Oregon Constitution
provides:
“No court shall be secret, but justice shall be admin-
istered, openly and without purchase, completely and with-
out delay, and every man shall have remedy by due course
of law for injury done him in his person, property, or
reputation.”
Article I, section 11, provides, in part:
“In all criminal prosecutions, the accused shall have the
right to public trial by an impartial jury in the county in
which the offense shall have been committed[.]”
Cite as 353 Or 789 (2013) 795
Both Article I, section 10, and Article I, section 11,
are original provisions of the Oregon Constitution. To deter-
mine the meaning of an original provision, this court con-
siders its wording, the historical circumstances that led to
its creation, and the case law surrounding it. State v. Cavan,
337 Or 433, 441, 98 P3d 381 (2004); Priest v. Pearce, 314 Or
411, 415-16, 840 P2d 65 (1992). The goal of that inquiry is
“to understand the wording [of the constitutional provision]
in the light of the way that the wording would have been
understood and used by those who created the provision
*  * and to apply faithfully the principles embodied in the
*
Oregon Constitution to modern circumstances as those cir-
cumstances arise.” Smothers v. Gresham Transfer, Inc., 332
Or 83, 90-91, 23 P3d 333 (2001) (citations and internal quo-
tation marks omitted).
We begin with Article I, section 10. The part of sec-
tion 10 at issue in this case—the first independent clause of
that provision, sometimes referred to as the “open courts”
clause—provides:
“No court shall be secret, but justice shall be admin-
istered, openly and without purchase, completely and with-
out delay[.]”
The plain words of that clause do not confer any personal
right on a litigant or on a member of the media or public.
State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 282-83,
613 P2d 23 (1980). Rather, in prohibiting secret courts and
requiring that justice be administered openly, that part of
Article I, section 10, prescribes how government must
ensure fairness in the administration of justice. Oregonian
Publishing Co. v. O’Leary, 303 Or 297, 301-02, 736 P2d 173
(1987).
In Doe v. Corp. of Presiding Bishop, 352 Or 77, 280
P3d 377 (2012), this court recently applied its three-step
interpretive paradigm for original constitutional provisions
to the open courts clause to determine whether the press
was entitled to the release of certain trial exhibits after
the conclusion of a trial. In that case, the court began by
examining the words of the open courts clause and noted
that, in the phrase “[n]o court shall be secret, but justice
shall be administered, openly[,]” the key terms are “court,”
796 State v. MacBale
“secret,” and “openly.” Id. at 88. The court considered those
terms as the framers would have understood them and
determined that the word “court” would have been under-
stood two ways: as the institution that administers justice,
including the circuit courts, and as the judges and other per-
sons who are charged by law to administer justice. Melding
the two, the court concluded that, within the meaning of
the open courts provision of Article I, section 10, a “court” is
“a governmental institution, composed of judges and their
supporting staff, whom the law charges with the respon-
sibility to administer justice.” Id. at 90.
Turning to the meanings of the words “secret” and
“openly,” the court observed that both terms address the
same concept and concluded, therefore, that they should
be considered together. Id. The court reviewed dictionary
definitions of those words contemporaneous with the adop-
tion of the constitution and determined that
“[t]hose definitions, considered in the context of Oregon’s
judicial system, confirm that Oregon’s framers sought to
require the courts to conduct the business of administering
justice in public—that is, in a manner that permits public
scrutiny of the court’s work in determining legal contro-
versies.”
Id. Taking all of the key words together, the court stated
that,
“[w]ithout question, the first phrase of the open courts
clause of Article I, section 10, focuses explicitly on the court
as the institution that administers justice and prohibits
that institution from concealing the administration of
justice from public view. The second phrase, ‘justice shall
be administered, openly,’ similarly mandates the publicly
visible and audible administration of justice.”
Id. at 91. Notwithstanding that view of the meaning of the
open courts provision of Article I, section 10, however, the
court in Corp. of Presiding Bishop ultimately concluded that
the text furnished no clear answer to the issue presented in
that case—whether, after a trial had ended, an intervenor
had a right to obtain the release of trial exhibits that a jury
had considered in its deliberations.
Cite as 353 Or 789 (2013) 797
In this case, as in Corp. of Presiding Bishop, we also
conclude that the plain words of Article I, section 10, do not
resolve the question presented—whether the legislature may
provide, by statute, that pretrial hearings to determine the
relevance of evidence of a rape victim’s past sexual behavior
must be closed to the public. While it is true that an OEC
412 hearing is secret in the sense that the public is excluded,
it does not follow that closing an OEC 412 hearing to the
public necessarily results in “concealing the administration
of justice from public view,” in violation of the open courts
provision as explicated in Doe. The defendant and his lawyers
are permitted to attend the hearing, there is a record of the
hearing, and the trial itself, in general, is open to the public.
We also observe that the words of Article I, section 10, do
not clarify whether that provision is broadly directed at the
administration of “justice” for the defendant, any victims,
and the public, by means of a public trial leading to a verdict,
or also reflects a concern for all the discrete, and sometimes
minor, judicial and administrative actions that, together,
result in justice being administered in a particular case.
The historical record of the adoption of Article I,
section 10, sheds little additional light on the meaning of that
provision. As this court noted in Smothers, there is no direct
record of the framers’ intentions with respect to Article I,
section 10. 332 Or at 114. It has no analogue in the federal
constitution, and, although similar, it is not identical to the
part of the Indiana Constitution from which it was derived.2
W.C. Palmer, The Sources of the Oregon Constitution, 5 Or
L Rev 200, 201 (1926). In Smothers, this court stated that
the phrasing of Article I, section 10, can be traced, at least
in part, to Edward Coke’s commentary on Chapter 29 of the
Magna Carta of 1225, which read, as translated from the
Latin:
“  ‘No freeman shall be taken, or imprisoned, or be dis-
seised of his freehold, or liberties, or free customs, or be out-
lawed, or exiled, or any otherwise destroyed; nor will we not
2
Article I, section 12, of the Indiana Constitution of 1851 provided:
“All courts shall be open; and every man, for injury done to him in his person,
property, or reputation, shall have remedy by due course of law. Justice shall
be administered freely, and without purchase; completely, and without denial;
speedily, and without delay.”
798 State v. MacBale
pass upon him, nor condemn him, but by lawful judgment
of his peers, or by the law of the land. We will sell to no
man, we will not deny or defer to any man either justice or
right.’ ”
Smothers, 332 Or at 94-95, quoting Edward Coke, The
Second Part of the Institutes of the Laws of England, 45
(1797). The court observed that the dominant theme of
Coke’s commentary on the first sentence, quoted above, was
that the law prohibited official acts depriving individuals of
life, liberty, or property unless it was done according to the
“law of the land,” whereas the second sentence guaranteed
the rights of persons in their private relations with one
another. Smothers, 332 Or at 96. As the court stated, the
common law thus evolved to protect individuals in two
respects: as “a shield against arbitrary government actions
involving a person’s life, liberty, or property *  * [and as] a
*
guarantee to every subject that a legal remedy was available
for injury to goods, land, or person by any other subject of the
realm.” Id. at 97. The court in O’Leary characterized those
protections as “a guarantee of equal access to justice for
redress of legal wrongs.” 303 Or at 301 n 3. Thus, although
the historical underpinning of Article I, section 10, shows an
abiding concern with protecting the individual from the
government’s arbitrary exercise of power, its historical ante-
cedents did not specifically proscribe secret court proceed-
ings. Id.
Similarly, although the Indiana provision on which
Article I, section 10, is based provides that “[a]ll courts shall
be open,” it does not prohibit “secret” courts or mandate the
open administration of justice as the Oregon Constitution
does.3 The framers of the Oregon Constitution rephrased
the Indiana provision to add those concepts. As this court
stated in Corp. of Presiding Bishop, that suggests that the
framers were “concerned with access to Oregon courts by
its citizens * * * and were concerned equally with combating
secrecy in the administration of justice and fostering
judicial accountability through public scrutiny of court pro-
ceedings.” 352 Or at 93. However, that understanding of the
3
Moreover, as the court explained in O’Leary, the word “open” in early American
state constitutions may have meant merely litigant access to legal redress in the
courts, and not public access to observe court proceedings. 303 Or at 301 n 3.
Cite as 353 Or 789 (2013) 799
historical development of Article I, section 10, does not
answer the questions left unresolved after examining the
words of the open courts clause—whether the phrases “no
court shall be secret” and “justice shall be administered,
openly” necessarily mean that no part of an otherwise open
trial may be closed to the public. For that reason, it does not
assist us in determining whether the constitution demands
that an OEC 412 hearing be open to the public. We turn, there-
fore, to this court’s case law interpreting the open courts
clause of Article I, section 10.
This court has discussed the open courts clause at
length in three cases: Deiz, O’Leary, and Corp. of Presiding
Bishop. In Deiz, a 13-year-old girl was in custody in con-
nection with the drowning of a younger child. The Oregonian,
citing a strong public interest in the case, filed a motion to be
permitted to attend a hearing involving the girl, although a
statute excluded the general public from hearings in juvenile
cases when it appeared to the judge that “the presence of the
public may embarrass a witness or party or otherwise pre-
judice the reception of trustworthy evidence.” Former ORS
419.498(1) (1979), repealed by Or Laws 1993, ch 33, § 373.
The trial court barred The Oregonian from the hearing
and reaffirmed its intention to exclude the press from all
future hearings in the case. The Oregonian sought a writ of
mandamus, arguing that Article I, section 10, of the Oregon
Constitution required hearings in the case to be open to the
public. The defendant trial judge responded that juvenile
hearings ought to be closed to the public, because the public
has no interest in juvenile proceedings. This court rejected
the judge’s argument, holding that Article I, section 10, “does
not recognize distinctions between various kinds of judicial
proceedings; it applies to all.” Deiz, 289 Or at 283. The court
then held that the judge’s order barring the public from the
hearings violated Article I, section 10.
In reaching that conclusion, the court did not dis-
cuss whether the constitution would permit the trial court
to close particularly sensitive parts of a juvenile hearing to
the public. It did, however, specifically add that its holding
should not be interpreted as guaranteeing the right of public
access to all judicial proceedings:
800 State v. MacBale
“One obvious limitation is that jury deliberations and court
conferences have been and are held in private. We are of
the opinion that despite the absence of any language in
Art I, § 10 expressly excluding jury deliberation from the
prohibition against secret deliberations, the tradition that
such proceedings be held in private was so long and so well
established in 1859 that the tradition should be read into
the section. * * * The same is true of conferences of collegial
courts.”
Id. at 284 (citations omitted). In a similar vein, the court
also stated that the open courts clause does not stop a trial
court from controlling access to the courtroom to prevent
overcrowding or interference with or obstruction of court
proceedings. Id. at 285.
In O’Leary, the court went further in requiring
public access to court proceedings. That case involved a press
challenge to a statute that required in camera summary
hearings to determine whether a witness who had refused to
testify on the ground that his or her testimony would be self-
incriminating could be compelled to testify. ORS 136.617.4
The court considered the wording of Article I, section 10,
and stated that it
“is written in absolute terms; there are no explicit quali-
fications to its command that justice shall be administered
openly. In order to be constitutional, a proceeding must
either not be secret or not ‘administer justice’ within the
meaning of section 10.”
303 Or at 302.
The court observed that the hearing under ORS
136.617 was undoubtedly “secret” within the meaning of
Article I, section 10, because the statute mandated that sum-
mary hearings to determine whether to compel a witness’s
testimony be conducted outside the presence of the public.
Id. The court then turned to the question whether “justice” is
“administered” at such a hearing. The court noted that “not
4
ORS 136.617 remains in effect today and is identical in all material respects
to the version of the statute that was in effect at the time that this court decided
O’Leary. However, as discussed in the text, the court’s decision in O’Leary inval-
idated the part of the statute requiring that hearings to determine whether wit-
nesses who had invoked their right against self-incrimination could be compelled
to testify be conducted outside the presence of the public.
Cite as 353 Or 789 (2013) 801
every proceeding involving the administration of justice,
in the general sense of that term, need be open to the public.”
Id. at 303. Rather, the scope of section 10 is limited to adju-
dications: “To the extent that adjudications are not involved,
the administration of justice is not governed by it.” Id. at
303. Police investigations, for example, are a part of the
administration of justice, but they need not be open to public
scrutiny. Id. In addition, the court referred to its earlier
observation in Deiz that judicial proceedings that historically
were closed to the public, such as jury deliberations and
collegial court conferences, may be exceptions to section 10.
Id.
The hearing to determine whether a witness could
be compelled to testify, according to the court, is not a pro-
ceeding that falls outside the scope of Article I, section 10.
That is so, the court stated, because the “fundamental
function of courts is to determine legal rights based upon
a presentation of evidence and argument,” and, the court
reasoned, that is what happened in hearings under ORS
136.617. Id. at 303. Thus, “[t]he reasons for opening trials
to public scrutiny would appear to be equally applicable
to an ORS 136.617 hearing.” Id. at 303. The court rejected
the contention that limiting public access to the hearing is
permissible because the public is interested only in admis-
sible evidence: “[T]he importance of visibility in the admin-
istration of justice goes far beyond the presentation of
admissible evidence at trial.” Id. at 304. Quoting from Justice
Linde’s concurring opinion in Deiz, the court stated that
open justice “ ‘serves to assure accountability for the charge
not prosecuted, the reduced plea accepted, the evidence used
or not used.’ ” O’Leary, 303 Or at 304 (quoting Deiz, 289 Or at
289 (Linde, J., concurring)). The court concluded, “There is
nothing in section 10 or this court’s prior decisions to suggest
that public access should be limited to the presentation of
admissible evidence.” Id., 303 Or at 304.
Finally, the court took the Court of Appeals to task
for balancing the witness’s “secrecy” interest in not disclosing
confidential information against the command in Article I,
section 10, that justice must be administered openly. The
court held,
802 State v. MacBale
“[a]ny secrecy interest the witness may have in not disclosing
incriminating information is not of a constitutional dimen-
sion. The right against self incrimination has nothing to
do with secrecy; the state can compel testimony from the
witness so long as immunity or some other acceptable
substitute is provided. *  * If the witness has a secrecy
*
interest at all, it must be found in the closed hearing
provision of ORS 136.617 itself.
“But even assuming that the witness has a secrecy
interest, it cannot limit the unqualified command of
section 10 that justice shall be administered openly. The
government cannot avoid a constitutional command by
‘balancing’ it against another of its obligations. *  * In
*
this instance, the government cannot create a secret court
by pleading that it must act in secret in order to avoid
infringing the witness’s secrecy interest or constitutional
right against self incrimination.”
Id. at 305.
We note that O’Leary was decided before this court
adopted its current paradigm for interpreting original con-
stitutional provisions. Thus, the court did not scrutinize
the words of Article I, section 10, or specifically consider
what the framers intended by the phrase “no court shall
be secret.” The court simply assumed that the framers
meant that clause to apply to all parts of a trial, subject to
the exceptions noted in Deiz for collegial court conferences
and jury deliberations. For that reason, the court had no
trouble concluding that the hearing at issue there under
ORS 136.617 was “secret” within the meaning of Article I,
section 10, notwithstanding that both the defendant and his
counsel were permitted to attend the hearing and that the
subsequent trial itself would be fully open to the public.
Moreover, in rejecting the notion that the public is
interested only in evidence actually considered by the trier
of fact in arriving at a decision, the court in O’Leary implied
that the public would have a right of access to certain
proceedings that clearly are not subject to the open courts
clause of Article I, section 10. That is, the court quoted with
approval the passage from Justice Linde’s concurring opinion
in Deiz to the effect that the importance of visibility in
the administration of justice “ ‘serves to assure accountability
Cite as 353 Or 789 (2013) 803
for the charge not prosecuted, the reduced plea accepted, the
evidence used or not used.’ ” O’Leary, 303 Or at 304 (quoting
Deiz, 289 Or at 289 (Linde, J., concurring)). But the court
overstated the point by endorsing that view. As noted, the
court in O’Leary earlier had stated that Article I, section
10, “is directed only at adjudications.” 303 Or at 303. Both a
prosecutor’s decision whether to charge a person with a crime
or to accept a reduced plea and a party’s decision not to use
certain evidence at trial may be part of the administration
of justice, but neither of those is an adjudication or even an
action by a court, and, in our view, neither is covered by
Article I, section 10.
Finally, this court, in both Deiz and O’Leary, iden-
tified only two parts of adjudications that traditionally were
closed to the public as examples of proceedings that might,
for that reason, be exceptions to Article I, section 10—
collegial court conferences and jury deliberations. However,
the court did not suggest that those were the only aspects
of adjudications that could be closed to the public, and other
examples of closed proceedings existed at common law. For
instance, the public traditionally did not have the right to
attend pretrial hearings. Gannett Co., Inc. v. DePasquale,
443 U.S. 368, 387-88, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979)
(pretrial hearings were “never characterized by the same
degree of openness as were actual trials”). As the Court in
Gannett explained, under English common law, the public
had no right to attend pretrial proceedings, and at least one
early English statute provided that pretrial proceedings
should not be deemed an open court and that the public
could therefore be excluded. Id. at 389 (citing Indictable
Offenses Act, 11 § 12 Vict., ch 42, § 19 (1848)). Further, the
Court noted that closed pretrial proceedings traditionally
have been a part of the judicial landscape in this country as
well. Id. at 390. In New York in 1850, for example, pretrial
hearings could be closed to the public at the defendant’s
request. Id.
Grand jury proceedings also traditionally have been
secret. State ex rel Johnson v. Roth, 276 Or 883, 885, 557
P2d 230 (1976) (secrecy of grand jury maintained by “long
established policy”); State v. Moran, 15 Or 262, 273, 14 P. 419
804 State v. MacBale
(1887) (“The policy of the law generally is that the proceedings
before the grand jury are secret.”). In State v. Conger, 319 Or
484, 878 P2d 1089 (1994), this court discussed the historical
circumstances leading to the provision for grand juries in
the Oregon Constitution. It noted that, during the framers’
debate about whether to retain the grand jury system,
“[b]enefits and drawbacks to the secrecy of grand juries
were discussed as well.” Id. at 495.
Moreover, courts historically have had discretion to
control how individuals were examined regarding personal
and sensitive matters and could exclude the public from the
courtroom during such questioning in certain circumstances.
As Matthew Deady, who served as president of the Oregon
Constitutional Convention in 1857, observed,
“[A]lthough the constitution requires justice to be ‘admin-
istered openly and without purchase,’ no one doubts that,
*  * in a certain class of cases, the general public, in the
*
interest of public morals and decency, may be excluded from
the courtroom.”
Eastman v. County of Clackamas, 32 F 24, 32 (D Or 1887).
Thus, a more complete look at the circumstances
surrounding the creation of Article I, section 10, shows that,
historically, certain types of proceedings in which justice can
be said to have been administered were or could be closed to
the public. That suggests that the framers would not have
viewed the public’s right to access to courts as absolute. For
those reasons, despite the court’s sweeping statements in
O’Leary, we do not read the court’s decision in that case as
standing for the proposition that all pretrial hearings to
decide the admissibility of evidence involve adjudications
and must be open to the public.
The third case of relevance is this court’s recent
decision in Corp. of Presiding Bishop. There, several former
boy scouts brought sexual abuse charges against, among
others, the Boy Scouts of America (BSA), and a jury returned
a verdict in the plaintiffs’ favor. During the trial, certain
BSA documents, referred to as the “ineligible volunteer files,”
were admitted into evidence, subject to a protective order
requiring the parties to keep the documents confidential and
return them to BSA after a judgment had been entered in
Cite as 353 Or 789 (2013) 805
the case. At the conclusion of the trial, the plaintiffs moved
to vacate the protective order so that the ineligible volunteer
files could be released to the public. Various members of the
media moved to intervene and also asked the trial court
to release those exhibits for public access. The trial court
granted the plaintiffs’ motion to vacate the protective order,
subject to the condition that the names of the victims and
those who had reported alleged abuse be redacted. The
media entities then filed a mandamus action demanding
release of the unredacted exhibits, asserting that the open
courts clause in Article I, section 10, required their release.
This court ultimately decided that Article I, section
10, did not require the release to the public of trial exhibits
that were subject to a protective order. Corp. of Presiding
Bishop, 352 Or at 86. In reaching that conclusion, the
court again was called on to interpret Article I, section 10.
After reviewing the text of that provision, the historical
circumstances that led to its creation, and this court’s case
law on the topic, the court described and summarized its
statements in Deiz and O’Leary concerning the open courts
clause as follows:
“Those statements confirm that a court does not comply with
Article I, section 10, by confining the public’s attendance in
court to only the presentation of admissible evidence. The
principle of open justice entitles the public to attend and
to view the other aspects of the administration of justice
in a court—such as a proceeding to suppress inadmissible
evidence—to ensure that the court and the parties comply
with the law, and appear to do so, in an accountable
manner. * * * The accountability for evidence used and not
used, to which Justice Linde referred in Deiz, is the product
of the public’s right to see and hear a party’s efforts in court
to introduce and use evidence, or decline to introduce and
use evidence, and to see and hear the court’s decision and
response to those efforts.”
Id. at 100. However, the court concluded, “the constitutional
right to an open court does not create *  * a right in every
*
observer, at the end of a court proceeding, to obtain the
release of the evidence admitted or not admitted during
the proceeding.” Id. Specifically, the court agreed that a
806 State v. MacBale
trial court permissibly could exercise its authority to limit
the disclosure of exhibits at the close of a trial in certain
circumstances, including when there is a “need to protect
those who have been victims of child sexual abuse and
those who have reported suspected child sexual abuse to
others with authority to investigate, from embarrassment,
retaliation, or other harm.” Id. at 101.
From that review of the case law we can distill
several important points. First, the cases establish that,
although Article I, section 10, is written in broad terms, it
does not apply to all aspects of court proceedings. Second,
Article I, section 10, generally prohibits a judicial proceeding
from being “secret” (closed to the public) if, in that judicial
proceeding, “justice” is “administered.” Justice is admin-
istered when a court determines legal rights based on the
presentation of evidence and argument. Put differently,
the focus of the open courts provision is on “adjudications.”
O’Leary, 303 Or at 303. Third, our case law indicates that,
when justice is being administered, the public’s interest in the
open administration of justice generally may not be subject
to an open-ended “balancing” against the secrecy interest of
a particular witness in the case. Fourth, notwithstanding
strong textual and case law support for the principle of open
court proceedings, judges have always enjoyed broad latitude
to control their courtrooms, including taking such actions
as may be necessary to protect vulnerable participants in
judicial proceedings, including victims, from harassment or
embarrassment. Given that latitude, the right of access that
Article I, section 10, secures, although broad, is not absolute.
With those principles in mind, we turn to consider
whether the exclusion of the public from hearings under
OEC 412 violates Article I, section 10. Neither party disputes
that an OEC 412 hearing is “secret,” insofar as the rule
mandates that the public be excluded from such hearings.
But, as we have stated, not every “secret” proceeding during
a trial violates Article I, section 10. The question, rather,
is whether a hearing under OEC 412 “administers justice”
within the meaning of that constitutional provision.
Cite as 353 Or 789 (2013) 807
In answering that question, we observe, first, that
it is clear that an OEC 412 hearing does not result in a
determination of guilt or innocence; it does not administer
justice in that sense. Second, we think it is significant
that the purpose of a hearing under OEC 412 is not to
consider whether a witness’s relevant testimony should be
excluded based on the witness’s assertion of immunity from
testifying, but, instead, to determine whether particular
evidence falls within a class of evidence that the legislature
has determined is presumptively irrelevant and should be
protected from public disclosure. That fact distinguishes
this case from the hearing under ORS 136.617 involved in
O’Leary.
As we have discussed, in O’Leary, the trial court
was called on to determine whether a witness’s relevant
and otherwise admissible testimony should not be admitted
at trial, because the witness asserted his constitutional
privilege against compelled self-incrimination. The witness
made no claim that the evidence at issue was secret, con-
fidential, or irrelevant, but argued that he could not be
compelled to testify because of his right against self-
incrimination. In rejecting the state’s argument that the
hearing on the witness’s immunity claim should have been
conducted in camera, notwithstanding Article I, section
10, this court pointed out that the witness had no secrecy
interest in the incriminating information and that his
interest in not being required to testify against himself
could have been protected if the state were to have granted
him immunity. 303 Or at 305. For that reason, requiring
the hearing under ORS 136.617 to be open to the public
did not impair or affect the privilege at issue in O’Leary.
In contrast, the evidence to be considered at an OEC 412
hearing is presumptively irrelevant, and the harm that the
legislature intended to prevent by requiring an in camera
hearing is not the appearance of the victim as a witness,
but the “degrading and embarrassing disclosure of intimate
details about [the victim’s] private li[fe].” State v. Lajoie,
316 Or 63, 69, 849 P2d 479 (1993) (internal quotations and
citations omitted). Once disclosed in a public hearing, those
“intimate” personal facts, even if irrelevant to the trial, will
no longer be private. The bell cannot be unrung.
808 State v. MacBale
In that respect, the testimony that the legislature
has determined should be heard in camera under OEC 412
is more akin to secret or confidential information involving
trade secrets or communications protected from disclosure
by the lawyer-client or physician-patient privileges5 than it is
to information that may be inadmissible notwithstanding its
relevance because it is hearsay or because it was obtained in
violation of constitutional rights. In a hearing to determine
whether testimony is inadmissible hearsay under OEC 802
or instead comes within a hearsay exception, or in a hearing
to determine whether a defendant’s statements to police are
inadmissible because they were obtained in violation of his
right to counsel and to remain silent, confidential or secret
information ordinarily is not involved, and an in camera
hearing would serve no particular interest. By contrast,
when trade secrets or communications alleged to fall within
the lawyer-client or physician-patient privilege are involved,
hearings on the admissibility of evidence or application of
a privilege raise the prospect of disclosing to the public the
very information that is to be protected, thereby destroying
the confidential or secret nature of the information. For that
reason, proceedings involving such information sometimes
are held in camera. See ORS 646.469 (permitting court to
hold in camera hearing to preserve secrecy of alleged trade
secrets); Frease v. Glazer, 330 Or 364, 372, 4 P3d 56 (2000)
(adopting framework for determining when trial court may
conduct in camera review to determine whether crime-fraud
exception to lawyer-client privilege applies).6
The hearing required by OEC 412 is narrowly
tailored to screen for a discrete type of evidence that the
legislature deems to be presumptively irrelevant to a prose-
cution for certain sex crimes. As discussed, the legislature has
determined that evidence of the past sexual behavior of a
victim or witness is per se inadmissible, unless it falls within
one or more of three exceptions to the ban that the legis-
lature has established. OEC 412(2)(b)(A) - (C). It also created
5
See OEC 503 (lawyer-client privilege); OEC 504(1) (physician-patient priv-
ilege).
6
We express no opinion as to whether, in any particular case, an in camera
hearing involving alleged trade secrets or an assertion of the lawyer-client or
physician-patient privilege might violate Article I, section 10.
Cite as 353 Or 789 (2013) 809
a procedure—not open to the public—to determine whether
the otherwise-excluded evidence falls within one of those
three narrow categories. If the court determines that it does
and that the probative value of the evidence outweighs the
danger of unfair prejudice, then the evidence is relevant and
admissible. OEC 412(4)(c). All evidence that comes within
the category that the legislature has determined should be
admitted is admissible at the ensuing public trial.7
Closure of the hearing, therefore, operates to deprive
the public of exposure only to private, irrelevant facts about a
witness’s sexual history that the legislature has determined
should be excluded. Openness in that circumstance would not
advance any particular public interest and, given the sensi-
tive and personal nature of the matters raised at an OEC
412 hearing, openness could potentially further victimize
an already vulnerable witness or complainant and make the
“complete” administration of justice referred to in Article I,
section 10, more difficult, if not impossible. Indeed, rape
shield laws, such as OEC 412, were enacted to “protect vic-
tims of sexual crimes from degrading and embarrassing dis-
closure of intimate details about their private lives” and
thus eliminate one barrier to a victim’s decision “to report
and assist in the prosecution of the crime.” Lajoie, 316 Or
at 69 (internal quotation marks omitted). Moreover, to the
extent that the trial court determines that evidence of the
victim’s past sexual behavior is relevant under OEC 412,
that evidence will be admitted at a public trial on the
merits, even if it is embarrassing or degrading. OEC 412
was intended to protect the victim, while also ensuring that
the defendant was “ ‘able to present adequately a defense by
offering relevant and probative evidence.’ ” Id. at 80 (quoting
legislative history).
For those reasons, we conclude that a hearing to
determine the admissibility of evidence under OEC 412 does
not constitute an administration of justice for purposes of
Article I, section 10, and that the legislature may provide
that such a hearing be closed to the public.
7
And, if the trial court errs in applying OEC 412 and excludes evidence that
should have been admitted at trial, the defendant can raise that issue on appeal.
810 State v. MacBale
We next turn to consider whether a different result
obtains under Article I, section 11. That provision guaran-
tees a criminal defendant the right to a “public trial by an
impartial jury.” (Emphasis added.) Nothing in the text or
context of Article I, section 11, suggests that the framers
intended to require that a pretrial hearing to determine the
relevance of a rape victim’s past sexual history take place in
public. The historical circumstances that led to the creation
of Article I, section 11, and relevant case law confirm that
understanding.
Article I, section 11, is derived from and is identical
to Article I, section 13, of the Indiana Constitution of 1851.
Palmer, 5 Or L Rev at 201. The part of Article I, section 11,
with which we are concerned here is a paraphrase of the
Sixth Amendment to the United States Constitution, which
provides:
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed[.]”
The court explained the historical circumstances sur-
rounding the adoption of Article I, section 11, in State v.
Osborne, 54 Or 289, 103 P. 62 (1909), the only decision in
which this court has construed Article I, section 11. In
that case, the defendant had been charged with assault
with intent to commit rape. Before the trial, the district
attorney requested a court order excluding the public from
the courtroom, because, he predicted, “a good deal of dirty,
vulgar language” would be used. The defendant objected,
but the trial court overruled the objection and directed the
sheriff to clear the courtroom. The defendant ultimately
was convicted and sentenced to a term of imprisonment. On
review, this court reversed. The court explained that the
historical purpose of the public trial right was to protect the
accused from the abuses of prosecutorial power:
“In the early history of the law, when the accused was not
permitted to say anything in his own defense, or to be
represented by counsel, the public prosecutor as well as the
courts, it would seem, should have fully appreciated their
duties in this respect; but the flagrant abuses extant in
England, as well as in this country, prior to our Revolution,
Cite as 353 Or 789 (2013) 811
impressed upon the founders of our national and state gov-
ernments the importance of providing against them by
inserting in our fundamental laws the express provision
that every person charged with crime shall have a public
trial. The language used for this purpose is specific, clear,
and free from any possible misunderstanding.”
Id. at 296. The court went on to explain that trials must be
public to ensure that the accused person receives a fair trial.
The court articulated several ways in which requiring crim-
inal trials to be open to the public furthers that goal:
“In the first place, the mere declaration that the public
shall be excluded tends to impress the jury with the
enormity of the offense for which the accused is to be tried,
carrying with it, to some extent at least, prejudice against
the person so charged. It is not an unusual occurrence that
some person in an audience attending a trial will upon
hearing a narrative of the incidents connected with the
crime charged recall facts to which he will call attention,
and thus aid in establishing the innocence of the accused.
Were the public excluded, however, such aid would not be
available, and the conviction of the innocent might result.
Again, the presence of friends of the accused often serves
to impress the jury favorably, and to that extent, at least,
counteract the prejudice usually incident to being accused
of an offense which the court may think the public should
not hear.”
Id. at 296-97. Those goals pertain generally to the effect on
the jury of excluding the public from the trial. Given that the
jury itself is not present for OEC 412 hearings, those goals
are not directly furthered by requiring all parts of a trial,
including pretrial hearings or other hearings to determine
the admissibility of evidence, to be conducted in public.
Moreover, this court never has held that the public
trial right under Article I, section 11, extends beyond the
trial itself to pretrial hearings to determine the admissibility
of evidence. In fact, in Osborne, the court did not suggest
or imply that Article I, section 11, requires all parts of a
criminal proceeding to be public. On the contrary, even in
the context of discussing the impermissibility of closing an
entire trial on the merits to the public, the court stated that a
court must nonetheless retain the ability to control the court-
room:
812 State v. MacBale
“There can be no question as to the right of a court to
exercise much discretion in excluding in rare instances a
part of the public, such for example, as hysterical persons,
or those who may be inclined to disturb the orderly progress
of the trial, or the young during a class of trials that shock
the sense of decency or degrade the public morals. Also, for
obvious reasons, it has been held that a trial court may
regulate the indiscriminate admission of persons of a
known class who might by their conduct tend to embarrass
the witness, or interfere with the due and orderly progress
of the trial. Extreme cases have also arisen where it has
been found necessary to exclude the greater part of the
spectators.”
54 Or at 292.
To summarize, we conclude that the statutory
requirement that OEC 412 hearings to determine the admis-
sibility of evidence of a victim or witness’s past sexual
behavior be conducted outside the presence of the public does
not violate Article I, section 11, of the Oregon Constitution,
because Article I, section 11, pertains to the trial itself and
does not require a pretrial hearing under OEC 412 to be
open to the public. We also have concluded that the hearing
required under OEC 412 is not an administration of justice
under Article I, section 10, because the purpose of the hear-
ing is not to determine guilt or innocence, or even to deter-
mine whether relevant evidence is admissible at trial, but
to screen from disclosure sensitive but presumptively irrel-
evant facts related to the victim’s or witness’s sexual his-
tory. Consequently, the closure of OEC 412 hearings to the
public does not violate the mandate in Article I, section 10, of
the Oregon Constitution that “no court shall be secret, and
justice shall be administered, openly[.]” In light of those con-
clusions, we must now consider defendant’s arguments that
that requirement violates the First and Sixth Amendments
to the United States Constitution.8
To begin with, defendant’s arguments under the
First Amendment are unavailing. The First Amendment
provides, “Congress shall make no law *  * abridging the
*
8
The First and Sixth Amendments apply to the states through the Due
Process Clause of the Fourteenth Amendment. Presley v. Georgia, 558 U.S. 209,
211-12, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010).
Cite as 353 Or 789 (2013) 813
freedom of speech, or of the press.” As this court stated in
Jury Service Resource Center v. De Muniz, 340 Or 423, 429,
134 P3d 948 (2006), the United States Supreme Court has
established over the last few decades “that the First Amend-
ment encompasses a public right to observe the workings of
at least some parts of the administration of justice, partic-
ularly criminal trials.” However, the rights accorded by that
provision protect not the accused, but the press and other
members of the public: They may be asserted only by an
identified excluded individual. Huminski v. Corsones, 396 F3d
53, 83 (2d Cir 2005) (so holding, in context of exclusion of pro-
testor from attending trial); see also Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 603, 102 S. Ct. 2613, 73 L. Ed.
2d 248 (1982) (the press and general public have right of
access to criminal trials under the First Amendment). It is
undisputed that defendant will be permitted to attend the
hearing under OEC 412. He is not personally deprived of any
constitutional right to attend, and he has not shown that he
is entitled to assert any constitutional rights of third parties
to attend the hearing. Defendant does not have standing
to assert a First Amendment right of access to the OEC 412
hearing.
The Sixth Amendment to the United States Consti-
tution is analogous to Oregon’s Article I, section 11. The Sixth
Amendment provides:
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial[.]”
Although the text of the Sixth Amendment refers to the
accused’s right to a “public trial,” the United States Supreme
Court has held that the right to a public trial extends beyond
the trial itself and encompasses some pretrial proceedings.
For example, in Presley v. Georgia, 558 U.S. 209, 213, 130
S. Ct. 721, 175 L. Ed. 2d 675 (2010), the Court held that the
Sixth Amendment guarantees the accused the right to have
voir dire of potential jurors conducted in public. In Waller
v. Georgia, 467 U.S. 39, 43, 46-47, 104 S. Ct. 2210, 81 L. Ed. 2d
31 (1984), the Court held that pretrial hearings on motions
to suppress evidence must be open to the public because of
the public’s strong interest in issues of alleged government
corruption and because the outcome of the trial is likely to
hinge on the outcome of such hearings.
814 State v. MacBale
As the Ninth Circuit Court of Appeals summarized
in U.S. v. Waters, 627 F3d 345, 360 (9th Cir 2010), the right
to a public trial extends to those pretrial proceedings that
are “an integral part of the trial” and “involve the values
that the right to a public trial serves.” (Internal quotation
marks and citations omitted.) Those values, according to the
court, are
“ ‘(1) to ensure a fair trial, (2) to remind the prosecutor and
judge of their responsibility to the accused and the impor-
tance of their functions, (3) to encourage witnesses to come
forward, and (4) to discourage perjury.’ ”
Id. (quoting Peterson v. Williams, 85 F3d 39, 43 (2d Cir
1996)).
We have no trouble concluding that those values are
not implicated by OEC 412’s requirement that hearings to
determine the relevance of certain evidence be conducted
in camera. First, the public’s absence from an OEC 412 hearing
is unlikely to prevent the defendant from receiving a fair
trial. The defendant, with counsel, attends the hearing and
is entitled to examine witnesses and present evidence. The
hearing is narrowly focused on the relevance of information
related to a victim’s or witness’s sexual history. The standards
governing that question are circumscribed by statute, and,
to the extent that that evidence is offered for a purpose
authorized under the statute, it will be presented at trial,
before the public. Second, excluding the public from such a
narrowly focused hearing will not affect the probability of
additional witnesses coming forward or encourage perjury.
On the contrary, a rape victim who is examined about the
details of her personal sexual background may be less likely
to be forthcoming if forced to discuss the matter in open court.
Moreover, unlike at a suppression hearing, public attendance
at an OEC 412 hearing is not necessary to expose public
corruption or police misconduct.
For those reasons, we conclude that the closed hear-
ing provision of OEC 412 does not violate the Sixth Amend-
ment to the United States Constitution. We have already con-
cluded that it also does not violate either Article I, section 10
or 11, and that defendant does not have standing to assert
a First Amendment right of access to an OEC 412 hearing.
Cite as 353 Or 789 (2013) 815
The trial court was correct to order the hearing to proceed
in camera.
The petition for writ of mandamus is dismissed.