This court previously has engaged in extended analyses of the impartial jury guarantee expressed in Article I, section 11. This case, however, presents an issue of first impression under Article I, section 11, and requires that we revisit the question of the scope of the impartial jury guarantee. When construing original provisions of the Oregon Constitution, this court ascertains and gives effect to the intent of the framers of the provisions at issue. Stranahan v. Fred Meyer, Inc., 331 Or. 38, 54-55, 11 P.3d 228 (quoting Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992)). That intent is determined by (1) analyzing the text and context of the provisions, giving words the same meaning that the framers would have ascribed to them; (2) considering the case law interpreting the provisions; (3) and reviewing the historical circumstances that led to their creation. Priest, 314 Or. at 415-16, 840 P.2d 65. In addition, the court's goal is faithfully to apply the principles embodied in those provisions to modern circumstances as they arise. State v. Rogers, 330 Or. 282, 297, 4 P.3d 1261.

The text of Article I, section 11, does not conclusively indicate what the framers meant when they stated that "the accused shall have the right to public trial by an impartial jury[.]" Although the words "impartial jury" may seem to have a self-evident meaning in the criminal trial context today, to assess what the framers likely understood those **386 terms to mean, we nonetheless review definitions of those *442 terms from dictionaries that were available to the framers when they drafted the Oregon Constitution in 1857.

At the time that the framers drafted the Oregon Constitution, John Bouvier's 1839 law dictionary and Noah Webster's 1928 American Dictionary of the English Language were available. See State v. MacNab, 334 Or. 469, 476, 51 P.3d 1249 (2002) (similarly observing). Bouvier's law dictionary did not define the word "impartial." It defined the word "jury," however, as
"a body of men selected according to law, for the purpose of deciding some controversy. * * * A pettit jury consists of twelve citizens duly qualified to serve on juries, impanelled and sworn to try one or more issues of fact submitted to them, and to give a judgment respecting the same, which is called a verdict."
John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America 555 (1839). Within its definition of the word "trial," that dictionary also observed:
"The learned Duponceau has given a beautiful sketch of this tribunal: 'twelve invisible judges,' says he, 'whom the eye of the corruptor cannot see, and the influence of the powerful cannot reach, for they are no where to be found, until the moment when the balance of justice being placed in their hands, they hear, weigh, determine, pronounce, and immediately disappear, and are lost in the crowd of their fellow citizens.' "
Id. at 451.

Webster's dictionary defined the word "impartial" as follows:
1. Not partial; not biased in favor of one party more than another; indifferent; unprejudiced; disinterested; as an impartial judge or arbitrator.
2. Not favoring one party more than another; equitable; just; as an impartial judgment or decision; an impartial opinion.
Noah Webster, 1 An American Dictionary of the English Language, s.v. "Impartial" (Johnson, 1828) (emphasis in original). That dictionary also defined the word "bias," in part, as *443 "[t]hat which causes the mind to lean or incline from a state of indifference[.]" Id., s.v. "Bias." The word "jury" was defined as "[a] number of freeholders, selected in the manner prescribed by law, empanneled and sworn to inquire into and try any matter of fact, and to declare the truth on the evidence given them in the case." Webster, 2 An American Dictionary of the English Language, s.v. "jury." Although the contemporary dictionary definitions are helpful in a general sense, they provide little insight regarding the actual content and scope of the impartial jury guarantee provided in Article I, section 11.

We turn to this court's case law. In Amini, this court addressed "whether a jury instruction advising the jury of the consequences of a finding that [the] defendant was guilty except for insanity violated [the] defendant's right to a trial by an impartial jury under Article I, section 11[.]" 331 Or. at 386, 15 P.3d 541. In addition to resolving that issue, the court also addressed the related question whether Article I, section 11, included "a broad fairness standard for reviewing [the] instruction." Id. at 389, 15 P.3d 541.

In Amini this court observed initially that the impartial jury clause in Article I, section 11, "guarantees only a trial by an impartial jury; it does not mention a fair trial." Id. The court then turned to "the historical circumstances that led to the inclusion of the guarantee of trial by an impartial jury[.]" Id. The court noted that Article I, section 11, had been adopted "verbatim" from Article I, section 13, of the Indiana Constitution of 1851. Id. The court reviewed historical writings by, among others, Coke and Blackstone, and concluded that the history revealed that, "by the eighteenth century, the requirement of an impartial jury reflected several related concerns, including that jurors be honest, that they not be interested in the outcome of the case, and that they be free from influence by the parties, particularly by the state." Id. at 391, 15 P.3d 541. "The guarantee of trial by an impartial jury" the court continued, "appears to have been intended to prevent an individual who already has formed an opinion or is interested in the outcome of the case **387 from sitting as a juror." Id. The court therefore concluded that "the guarantee of trial by an 'impartial jury' means trial by a jury that is not biased in favor of or against either party, but is influenced in making its decision *444 only by evidence produced at trial and legal standards provided by the trial court." Id.

The court then analyzed its case law and concluded that there were "two broad purposes of the guarantee of trial by an impartial jury." Id. First, the guarantee was intended "to prevent an individual from serving on a jury who is biased or interested in the outcome of the proceedings." Id. Second, the guarantee was intended "to establish the right to a change of venue if pretrial publicity prevents an impartial jury from being drawn from the citizens of the county in which the crime was committed." Id.

The court acknowledged, however, that it had "in a few cases in which parties ha[d] challenged either the impartiality of particular members of a venire, or the appropriate venue in light of pretrial publicity, * * * used the phrases 'fair and impartial jury' or 'fair and impartial trial.' " Id. at 391-92, 15 P.3d 541. The court explained that its "use of the word 'fair' in those situations was merely as a synonym for a jury that was not biased or prejudiced, [and was] not a holding that Article I, section 11, guarantees that every aspect of the trial will be fair." Id. at 392, 15 P.3d 541. Based on its review of the case law, the court concluded that, "when this court has held that a jury trial must be fair and impartial, it has meant that the jury must not be prejudiced or biased." Id. Thus, "[t]he word 'fair,' " the court explained, "has been used as a synonym for impartial, [and has] not [been used] to expand the guarantee of trial by an impartial jury into an unqualified guarantee of a fair trial." Id.

The court next addressed the state's request that the court "hold that the guarantee of trial by an impartial jury under Article I, section 11, controls only the composition of the jury panel at the time that it is impaneled" and not after. Id. The court refused to so hold, noting that the court had "recognized that it is possible that a juror, who had been impartial at the outset, might be subjected to improper influences or might act during trial in a manner that would compromise his or her impartiality." Id.

We think that a fair summary of the foregoing is that, although this court has acknowledged that Article I, *445 section 11, encompasses a right to a change of venue based on the effects of pretrial publicity on the impartiality of the potential jury pool, this court has not recognized explicitly, as defendant argues, that Article I, section 11, encompasses a criminal defendant's right to a different " 'venue' based on the prejudice associated with the prison setting." However, the court also never has held to the contrary. And, this court has acknowledged the possibility that external factors may influence jurors after they have been impaneled and that such forces may affect the jurors unconsciously. See, e.g., State v. Montez, 309 Or. 564, 575, 789 P.2d 1352 (1990) (citing Lambert v. Srs. of St. Joseph, 277 Or. 223, 230, 560 P.2d 262 (1977)) (trial court must find that jurors will not be consciously or unconsciously biased).

In Amini, this court concluded that the "impartial jury" guaranteed by Article I, section 11, is one "that is not biased in favor of or against either party, but is influenced in making its decision only by evidence produced at trial and legal standards provided by the trial court." 331 Or. at 391, 15 P.3d 541. Viewed in its most basic sense, defendant's claim is that the prison environment at SRCI was so overpowering that it was unlikely that the jury would not have been subject to the impermissible influences of that environment. In light of the historical purposes for requiring juror impartiality, which this court previously identified in Amini, we conclude that defendant's claim is cognizable under Article I, section 11, of the Oregon Constitution. We now turn to the resolution of defendant's claim. In addressing defendant's claim, we must focus on the nature of the SRCI prison environment and its likely effect on the jury.

Defendant advances multiple, related reasons why a jury is unlikely to remain impartial in the SRCI prison setting. First, he argues that a "maximum security prison" setting, such as SRCI, erodes the presumption **388 of innocence because "the setting enfolds the defendant in prison accouterments," thus overpoweringly inferring dangerousness, and ultimately guilt, to the jury. Second, defendant argues that, because a "maximum security prison" setting is so "vastly different from a typical courtroom setting located in a city center," it creates a natural apprehension on the part of lay *446 jurors. That apprehension, in defendant's view, will cause jurors to rely, to a greater extent than they would in an ordinary courtroom, on the executive branch (that is, the state) for their protection. That reliance, he urges, creates a "unique and impermissible dynamic between the jury and the guards[,]" which makes it more likely that the jurors will believe the testimony of the guards over defendant. That effect, defendant contends, erodes juror impartiality to an impermissible extent and, for that reason, he was entitled to a change of venue as a matter of law.

The state's response is twofold. First, the state contends that defendant's argument does not implicate actual juror bias and does not involve a violation of defendant's right to select an impartial jury. Thus, the state argues, because the right to select an impartial jury is a part of trial process, i.e., the manner in which a defendant is able to present the merits of his or her case, and this court has held that Article I, section 11, does not include a generalized right to a fair trial, defendant does not present a cognizable Article I, section 11, claim. As noted earlier, however, we reject the state's contention that defendant's claim is not cognizable under Article I, section 11.

Second, the state argues that "defendant failed to establish with any evidence that the prison site was at all likely to compromise the jurors ['] impartiality." In essence, the state argues that defendant's assertions about the oppressive nature and likely effect of the prison environment on jury impartiality are mere speculation and, therefore, even if defendant's claim is cognizable, it is not supported by any proof.

It may be, as the state asserts, that claims of this kind often will be fact-specific and will require an extensive evidentiary record and factfinding. This is not such a case, however. The characterization of the SRCI prison environment by defendant or by this court is not a matter of speculation; rather, it is beyond dispute that the SRCI setting "enfolds the defendant in prison accouterments," just as defendant argues. More to the point, however, we refuse to accept the state's underlying (but unstated) premise that, without evidence to the contrary, we should presume that *447 jurors are indifferent to their surroundings. Our 200-year American jury trial tradition informs us that exactly the opposite is true.

In this case, the Court of Appeals' analysis of defendant's federal due process claim expressed concerns that we think merit repetition:
"Holding a trial within the walls of a facility designed to segregate violent or dangerous persons from the public at large implies that there is some need for security measures above and beyond those of a normal trial. To be sure, the charges in this case arose out of an incident at the prison, and the jurors could have inferred that the court elected to hold the trial at the prison for administrative rather than safety reasons. But the decision to hold a trial at a prison is such a departure from the ordinary course, and the risk of singling defendant out in some impermissible way is sufficiently great, that we hold that the practice is inherently prejudicial[.]" [FN6]

FN6. Our review of similar cases in other jurisdictions indicates that only one jurisdiction, Utah, unequivocally allows trials in prisons. Four jurisdictions completely disallow the practice, while three others limit the practice depending on the nature of the prison facility and safety concerns. See State v. Lane, 60 Ohio St.2d 112, 397 N.E.2d 1338 (1979) (holding that trials in prison violate defendants' rights to fair trial, public trial and due process of law); Vescuso v. Commonwealth, 5 Va.App. 59, 360 S.E.2d 547 (1987) (holding that trials in prisons violate right to public trial); Bright v. State, 875 P.2d 100, 109 (Alaska Ct.App.1994) (holding that "any decision to hold a trial in a prison must be subjected to the strictest scrutiny, and that decision must be supported by compelling reasons"); State ex rel Varney v. Ellis, 149 W.Va. 522, 524, 142 S.E.2d 63, 65 (1965) (concluding that "[h]olding a trial in the office of the jailer, as was done in the instant case, does not, in our opinion, afford an opportunity for a public trial in the ordinary common-sense acceptation of the term public trial"). See also Howard v. Commonwealth, 6 Va.App. 132, 140, 367 S.E.2d 527, 532 (1988) (holding that conducting trial in administration building adjacent to prison, as opposed to prison itself, "was not inherently prejudicial"); People v. England, 83 Cal.App.4th 772, 100 Cal.Rptr.2d 63 (conducting trial on prison grounds, but outside actual prison wires in facility to which jurors could drive directly, did not violate defendant's right to fair trial or public trial); Foley v. Commonwealth, 429 Mass. 496, 500, 709 N.E.2d 794, 797 (1999) (arraignment did not violate right to public trial, because facilities were open to public, but distinguishing arraignment from trial, where other rights may be implicated). But see State v. Kell, 2002 UT 106, ¶ 16, 61 P.3d 1019, 1027 (2002) (holding that, "although the trial took place in a courtroom at the prison, the proceedings were in no way closed to the public"); State v. Daniels, 2002 UT 2, ¶ 22, 40 P.3d 611, 618-19 (2002) (holding that "trying [the] defendant in a courtroom located inside a prison did not present an unacceptable risk of presenting impermissible factors").

Cavan, 185 Or.App. at 375, 59 P.3d 553.

*448 We agree with those concerns and add the following. Courts ordinarily hold criminal **389 trials in courtrooms located within a public courthouse; that location is familiar to, or readily ascertainable by the public, and is a place where the public conducts a variety of governmental business. The public courthouse, and, by extension, the courtroom within, is an important component of the American adversarial tradition. The aura of neutrality that is inherent in the public courthouse is due in large part to the public's perception that the proceedings conducted there are under the control of an independent and impartial judiciary. That aura of neutrality and judicial impartiality contributes to and fosters the public's belief in, and, similarly, the public's own commitment to, impartiality in judicial proceedings.

Unlike the public courthouse, prisons like SRCI are inherently dangerous places that the public, as a general matter, is unlikely to visit. A jury's perception of the neutrality of the proceedings that attend a trial in the public courthouse obviously is diminished when the court convenes a trial within the environs of a prison such as SRCI. Gone is a jury's perception that the proceeding is in the firm control of the impartial and independent judiciary. Instead, the prison environment reminds the jury that the prison houses the most dangerous elements of society, many of whom are moving about within a few feet of the prison courtroom, and that the jury's physical safety, and to a large extent, the trial itself, are in the control of the prison administrators and corrections personnel. Finally, and perhaps more importantly, convening a trial in a prison such as SRCI and not in a courthouse forcefully conveys to a jury the overriding impression of a defendant's dangerousness and we think, by extension, his or her guilt.

The foregoing observations--our own and those of the Court of Appeals-- provide the appropriate lens through which to examine the jury trial in this case. Defendant was charged with assaulting a correctional officer employed in the very facility in which the trial was conducted. Thus, the jury had to rely on the prison administrators and the victim's fellow corrections officers for their safety throughout the trial. That, combined with the state's portrayal to the jury that defendant was so dangerous that he could not stand trial *449 in the public courthouse, created a trial environment that was incompatible with sustaining the level of jury impartiality demanded by Article I, section 11, of the Oregon Constitution. Given that environment, it was insufficient to confine the impartiality inquiry, as the trial judge did, to the pretrial interview of individual jurors. The problem as we have just described it was more generic and could not be remedied in that fashion. We hold that conducting defendant's criminal jury trial in SRCI violated defendant's Article I, section 11, guarantee to an impartial jury. [FN7]

FN7. Our decision should not be read to prohibit any other kind of court proceeding, such as an arraignment or hearing before a judge sitting without a jury, within a correctional institution.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

337 Or. 433, 98 P.3d 381

END OF DOCUMENT