The military judge must ensure that the dignity and decorum of the proceedings are maintained and that the other rights and interests of the parties and society are protected. Public access to a session may be limited, specific persons may be excluded from the courtroom, and, under unusual circumstances, a session may be closed. Exclusion of specific persons, if unreasonable under the circumstances, may violate the accused’s right to a public trial, even though other spectators remain. Whenever specific persons or some members of the public are excluded, exclusion must be limited in time and scope to the minimum extent necessary to achieve the purpose for which it is ordered. Prevention of over-crowding or noise may justify limiting access to the courtroom. Disruptive or distracting appearance or conduct may justify excluding specific persons. Specific persons may be excluded when necessary to protect witnesses from harm or intimidation. Access may be reduced when no other means is available to relieve a witness’ inability to testify due to embarrassment or extreme nervousness. Witnesses will ordinarily be excluded from the courtroom so that they cannot hear the testimony of other witnesses. See Mil. R. Evid. 615.

Victims are also entitled to notice of all such proceedings, the right to confer with counsel for the Government, and the right to be reasonably protected from the accused. See Article 6b. For purposes of this rule, the term “victim of an alleged offense” has the same meaning as the term “victim of an offense under this chapter” in Article 6b.

The military judge is responsible for protecting both the accused’s right to, and the public’s interest in, a public trial. A court-martial session is “closed” when no member of the public is permitted to attend. A court-martial is not “closed” merely because the exclusion of certain individuals results in there being no spectators present, as long as the exclusion is not so broad as to effectively bar everyone who might attend the sessions and is put into place for a proper purpose. A session may be closed over the objection of the accused or the public upon meeting the constitutional standard set forth in this Rule. See also Mil. R. Evid. 412(c)(2), 505(k)(3), and 513(e)(2). The accused may waive his right to a public trial. The fact that the prosecution and defense jointly seek to have a session closed does not, however, automatically justify closure, for the public has a right in attending courts-martial. Opening trials to public scrutiny reduces the chance of arbitrary and capricious decisions and enhances public confidence in the court-martial process. The most likely reason for a defense request to close court-martial proceedings is to minimize the potentially adverse effect of publicity on the trial. For example, a pretrial Article 39(a) hearing at which the admissibility of a confession will be litigated may, under some circumstances, be closed, in accordance with this Rule, in order to prevent disclosure to the public (and hence to potential members) of the very evidence that may be excluded. When such publicity may be a problem, a session should be closed only as a last resort. There are alternative means of protecting the proceedings from harmful effects of publicity, including a thorough voir dire ( see R.C.M. 912), and, if necessary, a continuance to allow the harmful effects of publicity to dissipate ( see R.C.M. 906(b)(1)). Alternatives that may occasionally be appropriate and are usually preferable to closing a session include: directing members not to read, listen to, or watch any accounts concerning the case; issuing a protective order ( see R.C.M. 806(d)); selecting members from recent arrivals in the command, or from outside the immediate area ( see R.C.M. 503(a)(3)); changing the place of trial ( see R.C.M. 906(b)(11)); or sequestering the members.