State v. MacBale

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 US 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 US 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 US 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 US 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 US 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.