"The Constitutional Guarantee of Criminal Justice Transparency"

The title of this post is the title of this notable new article now available via SSRN authored by Aliza Cover. Here is its abstract:

This article identifies and explores a transparency guarantee that permeates the Constitution’s criminal procedure provisions.  This trans-substantive guarantee protects multiple dimensions of transparency — which I categorize as participatory, informational, and corporal — through overlapping structural safeguards and individual rights, and through protections afforded to both the public and the accused. 

Despite the strength and pervasiveness of the overarching transparency guarantee, the discrete provisions from which it is derived are often peripheral in today’s criminal justice system, which is dominated by plea bargaining and incarceration, rather than trials and public-square punishment.  And, because the constitutional transparency protections are viewed in clause-bound isolation, modern transparency deficits are generally viewed as policy problems, not constitutional ones.  I urge that renewed attention to the overarching constitutional transparency guarantee can support doctrinal and legislative efforts to strengthen criminal justice transparency in modern times.