Playback of Evidence During Deliberations Must Occur in Open Court: Closure Violates the Public Trial Right — State v. Barrett, 2025 ND 186

Introduction

In State v. Barrett, 2025 ND 186, the North Dakota Supreme Court reversed two gross sexual imposition convictions after the district court closed the courtroom to the public while the jury reviewed a recorded interview during deliberations. The decision clarifies that a jury’s request to review evidence during deliberations does not constitute private deliberations warranting closure; rather, under Rule 43 of the North Dakota Rules of Criminal Procedure, such review must occur in open court, absent a valid waiver or an adequately supported, narrowly tailored Waller closure.

The key questions were:

Whether closing the courtroom for the jury’s review of evidence implicated the Sixth Amendment and article I, section 12 public trial rights.
Whether the district court correctly treated the review as “deliberations” requiring exclusion of the public.
Whether any error was obvious (plain), affected substantial rights, and warranted relief without harmless-error analysis.

Justice Crothers, writing for a unanimous court, held that the closure was a plain constitutional error that violated the public trial right and required a new trial.

Summary of the Opinion

After the jury requested to review a recorded interview during deliberations, the district court—lacking equipment in the jury room—brought jurors into the courtroom, closed it to the public, and made abbreviated findings under Waller v. Georgia, 467 U.S. 39 (1984). Defense counsel did not object but asked the court to consider keeping the courtroom open, questioning whether the playback constituted deliberations.

The Supreme Court held:

Barrett did not knowingly, intelligently, and voluntarily waive his public trial right; at most, he forfeited it, so the court applied obvious error review.
Closing the courtroom for the jury to review evidence was an error and a clear deviation from current law: Rule 43(a)(3) requires such proceedings to occur in open court, and the jury’s evidence review is not private deliberation.
The error was structural, necessarily affecting substantial rights and the fairness, integrity, or public reputation of judicial proceedings.
Remedy: Reversal and remand for a new trial.

Analysis

Precedents Cited and Their Influence

Waller v. Georgia, 467 U.S. 39 (1984): Established the four-factor test for courtroom closures in criminal cases: (1) an overriding interest likely to be prejudiced, (2) the closure no broader than necessary, (3) consideration of reasonable alternatives, and (4) findings adequate to support the closure. In Barrett, the district court treated juror playback as “deliberations” and concluded closure was warranted, but the Supreme Court found this a misapplication of Waller because the triggering premise (that playback is deliberation) was wrong.
State v. Rogers, 2018 ND 244, 919 N.W.2d 193: Reaffirmed Waller’s requirements for closure and emphasized the need for rigorous findings. The Barrett court relied on Rogers for the constitutional standard governing closure.
State v. Morales, 2019 ND 206, 932 N.W.2d 106: Explained that without an overriding interest, closure violates the public trial right. Barrett uses Morales to underscore that routine jury evidence review cannot justify closure.
State v. Martinez, 2021 ND 42, 956 N.W.2d 772: Set the framework for public trial violations under obvious error review. Martinez also stressed that a public trial violation is structural error, bypassing harmless-error analysis, and informed Barrett’s analysis of forfeiture (not waiver), plainness, and the fourth prong (fairness/integrity/public reputation).
State v. Haney, 2023 ND 227, 998 N.W.2d 817: Clarified the steps for evaluating public trial claims: preservation, whether a closure occurred, and sufficiency of pre-closure Waller findings. Barrett follows Haney’s structure.
State v. Coons, 2023 ND 115, 992 N.W.2d 521: Provided the standard of review for Waller findings (clear error). Barrett acknowledges this but proceeds under obvious error because the issue was forfeited, not waived.
State v. Pemberton, 2019 ND 157, 930 N.W.2d 125 and State v. Frederick, 2023 ND 77, 989 N.W.2d 504: Address obvious error standards under N.D.R.Crim.P. 52(b), informing Barrett’s plain error analysis.
State v. Curtis, 2009 ND 34, 763 N.W.2d 443: Construed the (now-superseded) N.D.C.C. § 29-22-05 and emphasized that communications with the jury after submission must occur in open court. Barrett uses Curtis to connect the statutory tradition—absorbed into Rule 43—to the constitutional public trial guarantee.
State v. Watterud, 2025 ND 185: Read together with Rule 43(a)(3), confirms that, as a default, when a deliberating jury requests to review testimony or evidence, the jury must be brought into open court. Barrett relies on Watterud to label closure for playback as contrary to the governing rule.
Campbell v. State, 2025 ND 152, 25 N.W.3d 781: Confirms that a public trial violation is structural error, necessarily affecting substantial rights. Barrett adopts this to satisfy the third obvious error requirement.
Chamber v. Janda, No. 1:13-cv-00230 LJO MJS (HC), 2013 WL 4012632 (E.D. Cal. Aug. 6, 2013): Persuasive authority recognizing that replaying evidence in open court falls within the scope of the public trial right. Barrett cites this to reinforce that public access is the default during playback.

Legal Reasoning

Attachment of the Public Trial Right: The right attaches from the commencement of adversarial proceedings through sentencing. Here, the closure occurred after submission to the jury; therefore, the right was in force.
Waiver vs. Forfeiture: Although the defense did not object, the court did not advise Barrett of the public trial right or obtain an express waiver. Under Martinez, a valid waiver must be knowing, intelligent, and voluntary. Absent that, the issue was forfeited and subject to obvious error review.
Error: The district court misclassified the jury’s review of evidence as “deliberations” and closed the courtroom. Under Rule 43(a)(3) and long-standing practice (formerly N.D.C.C. § 29-22-05), a jury’s request to review testimony or recordings must be handled in open court. Treating playback as private deliberation was a misapplication of law. The corresponding Waller finding—posited “overriding interest” in protecting deliberations—was predicated on that misclassification.
Plainness: The deviation was clear under current law. Rule 43(a)(3) directs that such interactions occur in open court; the court’s opposite conclusion “clearly deviated” from applicable law, satisfying the plainness requirement.
Effect on Substantial Rights (Structural Error): Public trial violations are structural. By definition they affect substantial rights and are not subject to harmless-error analysis. The third obvious error element was automatically satisfied.
Fourth Prong—Fairness, Integrity, Public Reputation: Following Martinez, the Supreme Court concluded that closing the courtroom for the jury’s evidence review undermined the fairness, integrity, and public reputation of the proceedings. The proper remedy is a new trial.

Impact and Practical Implications

1) Trial Court Procedure During Jury Requests

Barrett cements a bright-line operational rule: when a deliberating jury requests to review testimony or recorded evidence, the default procedure is to bring the jury into open court—with the public and parties able to attend—and conduct the playback on the record.

Courts must not equate playback with private deliberations; it is part of the trial process that must remain public.
Logistical hurdles (e.g., lack of equipment in the jury room) cannot justify closure; they prove the wisdom of Rule 43’s “open court” default.
If any party seeks closure, Waller’s four factors apply, and the court must consider reasonable alternatives (e.g., seating arrangements, limiting instructions, or partial measures) before closing.

2) Robust Records and Pre-Closure Findings

Barrett reiterates that inadequate or misdirected Waller findings will not sustain a closure. If closure is contemplated:

Identify an overriding interest (e.g., compelling witness safety concern) supported by specific facts.
Tailor the scope and duration narrowly.
Consider and rule on alternatives to closure.
Make detailed findings on the record, in advance of closure.

3) Waiver Protocols

To avoid reversible structural error, trial judges should:

Advise the defendant, on the record, of the public trial right before any contemplated closure.
Obtain an explicit, personal, knowing, intelligent, and voluntary waiver if proceeding without public access.

4) Appellate Review and Litigation Strategy

Defense counsel should object to closures lacking Waller-compliant findings and oppose characterizing playbacks as “deliberations.”
Even absent objection, appellate courts may reverse under obvious error because public trial violations are structural.
Prosecutors and courts should ensure compliance to avoid retrials—particularly in serious felony cases—stemming from preventable procedural errors.

5) Harmonizing Rule 43 and Constitutional Guarantees

The opinion ties Rule 43(a)(3)’s “open court” requirement to constitutional underpinnings. By affirming that the rule absorbs prior statutory protections (formerly N.D.C.C. § 29-22-05), Barrett strengthens the synergy between procedural rules and the Sixth Amendment, ensuring transparency in the critical junctures of juror requests during deliberations.

Complex Concepts Simplified

Public Trial Right: The Sixth Amendment and North Dakota Constitution guarantee open criminal proceedings to safeguard fairness and public confidence. The right spans the entire criminal process through sentencing.
Open Court vs. Deliberations: “Open court” means proceedings are public and on the record. Private “deliberations” occur only when jurors discuss the case among themselves. Evidence playback at the jury’s request is a public proceeding, not private deliberation.
Waller Factors: A court may close proceedings only if it finds: (1) an overriding interest at risk; (2) closure is narrowly tailored; (3) no reasonable alternatives exist; and (4) adequate, specific findings are made on the record. Convenience or routine practice is insufficient.
Rule 43(a)(3), N.D.R.Crim.P.: When a jury asks a legal question or seeks to review testimony or recordings, the jury must be brought into open court to receive the information, unless the defendant agrees otherwise.
Waiver vs. Forfeiture: Waiver is the intentional relinquishment of a known right (must be personal, knowing, intelligent, and voluntary). Forfeiture is the failure to assert a right in time, triggering “obvious error” review rather than extinguishing the claim.
Obvious (Plain) Error: An error that is clear under existing law and affects substantial rights. Courts correct it if it also seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Structural Error: A fundamental defect affecting the entire framework of the trial (e.g., denial of a public trial). Such errors necessarily affect substantial rights and are not subject to harmless-error analysis; reversal is generally required.

Conclusion

State v. Barrett crystallizes a critical procedural and constitutional rule: jury requests to review evidence during deliberations must be handled in open court. Classifying such playbacks as “deliberations” to justify closure misapplies the law and violates the public trial right. The opinion reinforces Waller’s strict closure standards, integrates Rule 43’s open-court mandate with constitutional guarantees, and confirms that closures without proper waiver or Waller compliance constitute structural error requiring a new trial.

For North Dakota trial practice, Barrett provides a clear roadmap: keep the courtroom open for jury evidence review; advise defendants and obtain valid waivers before any contemplated closure; and if closure is truly necessary, make robust, particularized Waller findings after exploring alternatives. The decision promotes transparency, enhances the integrity of verdicts, and aligns procedural rules with the constitutional core of the public trial guarantee.

Key Takeaways

Playback of evidence for a deliberating jury is not “deliberation”; it is a public proceeding that must occur in open court.
Rule 43(a)(3) requires bringing the jury into open court for legal questions and evidence review requests, absent a valid waiver.
Closure without a true overriding interest and full Waller compliance is a structural error warranting a new trial.
Waiver must be knowing, intelligent, and voluntary; silence or lack of objection is not enough.
Courts must create a clear record and consider alternatives before any closure; logistical convenience is not a sufficient basis.