As some readers of this blog are aware, criminal defendants have a constitutional right to a public voir dire (Presley v. Georgia). What is less clear is whether this right can be waived and if so by whom? These issues were decided recently at least for the state of Massachusetts in Commonwealth v. Lavoie.
In Lavoie, the criminal defendant was on trial for murder. During jury selection of his trial, court officers instructed the defendant's father, mother and sister to leave the courtroom. This request was made in order to leave enough room for the jury venire. Apparently, the judge was unaware that the defendant's relatives had been asked to leave the courtroom. The defendant on the other hand knew this fact and was a little bothered about it. However, he never raised the issue with his attorney. At a subsequent hearing held after the defendant's conviction, counsel for the defendant stated that it was not his usual practice to object when court officers cleared the court for the following reasons: (1) court officers have a difficult job; (2) he doesn't want family members sitting near potential jurors; and (3) family members can be a distraction.
Based on these facts, the Supreme Judicial Court of Massachusetts held that counsel may waive, with or without the defendant's express consent, the right to a public trial during jury selection where the waiver is a tactical decision as part of counsel's trial strategy.