# Commonwealth v. Contakos > Supreme Court of Pennsylvania · December 1, 1982 · 499 Pa. 340 URL: https://www.frixlaw.com/law-library/cases/9699784 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Samuel C. CONTAKOS, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 1, 1982 - **Citations:** 499 Pa. 340; 453 A.2d 578; 9 Media L. Rep. (BNA) 1038; 1982 Pa. LEXIS 608 - **Precedential status:** Published - **Opinion:** Dissent by Nix - **Judges:** O'Brien, Roberts, Nix, Larsen, Flaherty, McDermott, Hutchinson - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699784 ## How later opinions describe it (automated extraction) - noting, inter alia, the relationship between the trial of Penn and the importance ascribed to the openness of trials in Pennsylvania ## Opinion text NIX, Justice, dissenting. It cannot be questioned that the revered and venerable founder of this Commonwealth, as a result of his personal experiences with the English courts, intended to provide for his colony that plethora of rights necessary to assure that one accused of crime would receive a fair trial. The horrendous and barbaric spectre of injustice and tyranny presented by the trial of William Penn is not supportive of the premise that Penn intended, and the people of this Commonwealth embraced, the absolute and inflexible rule the opinion for the court has fashioned this day. The opinion for the court is inaccurate in its attempt to offer the trial of William Penn as the historical foundation for the purported unique significance of a public trial in this jurisdiction. The transgressions exhibited in the conduct of the trial of William Penn were the court’s intimidation of the jury in the performance of its function and the unwarranted exclusion of the accused during critical portions of the trial. From the historical data to which I am privy, there is no basis to believe the public was excluded from the trial. 1 *354 My research has uncovered no appellate case in this jurisdiction nor any legal scholar’s treatise relating to the uniqueness of Pennsylvania law, which would suggest that the organic law of this Commonwealth requires greater protection than provided under the federal constitutional guarantees in the areas directly concerned in the Penn trial, 1. e., function of court and jury and the exclusion of the defendant in criminal trials. I therefore must express my dissent to the opinion for the court’s historicizing about an event unrelated to the issue here concerned and its invalidation of a legitimate and reasonable exercise of the court’s duty to assure the safety of the participants and to preserve the integrity of the adjudicative process in this case. Criminal trials in the United States have long been recognized as presumptively open and this “. . . presumption of openness inheres in the very nature of the criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 , 100 S.Ct. 2814, 2825 , 65 L.Ed.2d 973 (1980). Moreover, this fundamental principle is embodied in Article I, sections 9 and 11 of the Pennsylvania Constitution. Article I, section 9, states: “In all criminal prosecutions the accused hath a right to ... a speedy public trial by an impartial jury of the vicinage.” Article I, section 11, states: “All courts shall be open.” However, equally well established is the principle that “.. . the right to a public trial is not absolute; rather, it must be considered in relationship to other important interests.” Commonwealth v. Knight, 469 Pa. 57, 65 , 364 A.2d 902, 906 (1976) (footnote omitted). 2 The relationship be *355 tween the right to a public trial and these other important interests, such as the orderly administration of justice, was set forth as follows: In considering such other interests, a court must assess all of the circumstances to determine if they present a situation in which an exclusion order is necessary. If the court determines a necessity exists, it may then issue an exclusion order; but the exclusion order must be fashioned to effectuate protection of the important interest without unduly infringing upon the accused’s right to a public trial either through its scope or duration. United States ex rel. Smallwood v. LaValle [ 377 F.Supp. 1148 (E.D.N.Y.1974) aff’d 2 Cir., 508 F.2d 837 , cert. denied 421 U.S. 920 [ 95 S.Ct. 1586 , 43 L.Ed.2d 788 ] (1975) ]; United States v. Kobli [ 172 F.2d 919, 923 (3d Cir.1949)]; and see generally 3 Wharton’s Criminal Procedure, 12 ed. § 439; 48 A.L.R.2d 1436 (1956). Ultimately, the determination of whether to exclude spectators, as well as the determination of the scope and duration of an exclusion order, must be left to the sound discretion of the trial court because it alone is sufficiently close to the circumstances to apprehend fully the subtleties that may be present. See generally, 48 A.L.R.2d 1436 , 1450, § 8. Thus, only if a trial court abused its discretion in issuing an exclusion order or in fashioning the order will reversible error be found on appeal. Id. 469 Pa. at 66 , 364 A.2d at 906-7 (footnotes omitted). In Knight , this Court held that the trial court’s exclusion of all spectators from the courtroom with the exception of the press and a group of law students during the testimony *356 of a young witness in order to protect that witness from emotional trauma was not an abuse of discretion and did not deprive the defendants of their constitutional rights to a public trial. Moreover, the United States Supreme Court in Gannett Co. v. DePasquale, 443 U.S. 368 , 99 S.Ct. 2898 , 61 L.Ed.2d 608 (1980) 3 noted the existence of certain limited exceptions to the tradition of open trials. . . . [W]ith respect to trials ... the tradition of publicity has not been universal. Exclusion of some members of the general public has been upheld, for example, in cases involving violent crimes against minors. Geise v. United States, 262 F.2d 151 (CA9 1958). The public has also been temporarily excluded from trials during testimony of certain witnesses. E.g., Beauchamp v. Cahill, 297 Ky. 505 , 180 S.W.2d 423 (1944) (exclusion justified when children forced to testify to revolting facts); State v. Callahan, 100 Minn. 63 , 110 N.W. 342 (1907) (exclusion justified when embarrassment could prevent effective testimony). Hogan v. State, 191 Ark. 437 , 86 S.W.2d 931 (1935) (trial judge properly closed trial to spectators during testimony of 10-year-old rape victim); United States ex rel. Smallwood v. LaValle, 377 F.Supp. 1148 (EDNY), aff'd, 508 F.2d 837 (1974). Exclusion has also been permitted when the evidence in a case was expected to be obscene. State v. Croak, 167 La. 92 , 118 So. 703 (1928). Finally, trial judges have been given broad discretion to exclude spectators to protect order in their courtrooms. United States ex rel. Orlando v. Fay, 350 F.2d 967 (CA2 1965) (exclusion of general public justified after an outburst in court by defendant and his mother.) Id. 443 U.S. at 388, n. 19 , 99 S.Ct. at 2910, n. 19 . In the instant case, during the testimony of the chief prosecution witness, the court ordered spectators removed from the courtroom, with the exception of certain members *357 of the news media. The basis for this order was that immediately before the prosecution witness was to testify, the prosecuting attorney informed the court, in chambers, of the following: I have been informed by the Commanding Officer of the Pennsylvania State Police that they have information that there is going to be an attempt on the life of the next witness, and it has come from three different sources, and I was informed of this at recess. The exclusion order was limited to the duration of this one witness’ testimony. It is also to be noted that there was no advance warning of this particular death threat until the witness was about to testify. Moreover, notwithstanding the extraordinary facts of this case, the court did not exclude the media and the proceedings were fully transcribed. The interest in protecting the life of a witness and to preserve the integrity of the proceedings as a corollary to the orderly administration of justice, coupled with the limited scope and duration of the order, can hardly be said to have rendered the instant trial a star-chamber type of proceeding which a public trial avoids. Commonwealth v. Knight, supra. I therefore dissent. HUTCHINSON, J., joins in this dissenting opinion. . Clear evidence substantiating the fact that the trial, held on the 1st, 3rd, 4th and 5th of September, 1670, was open may be found in its transcript prepared by Quaker spectators and set forth in A Collection of the Works of William Penn in Two Volumes ... (London, J. Sowle, 1726) Vol. 1 (Sowle). At p. 10 in Sowle, William Mead stated, “I desire the jury and all the people to take notice of this injustice of the Recorder.” Further, William Penn found it necessary to request silence in the court. William Penn: I desire we may come more to the point, and that silence be commanded in the court. and then the Crier called: All manner of persons keep silence upon pain of imprisonment. *354 —Silence in the Court. Sowle, p. 11. . The United States Supreme Court has concluded that the closure of a criminal trial may be justified only in furtherance of a compelling governmental interest and then only by a means narrowly tailored to serve that interest. See Globe Newspaper Co. v. Superior Court,-U.S.-, 102 S.Ct. 2613 , 73 L.Ed.2d 248 (1982) (statutorily mandated exclusion of press and public from entire trial held to be a violation of the First and Fourteenth Amendment). Although Globe involved the First and Fourteenth Amendment right of free access inuring to the benefit of the press and public, it is assumed that the *355 liberty interest of the criminal defendant is at least as important on the continuum of constitutional rights as the interests of the press and public. See In Re Oliver, 333 U.S. 257 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948). However, this case does not involve a total exclusion of the press, public and family of a defendant from an entire trial. Rather, the exclusion was limited to the family of the defendant and to the public during the testimony of a single witness. We do not believe that Globe is authority for concluding that a restricted admission to the proceedings during the testimony of a single witness for a most compelling reason is impermissible. See Globe Newspapers, - U.S.-, at-, n. 22, 102 S.Ct. 2613 at 2621, n. 22 . . For a carefully presented summary of the anglo-american history of the right to a public trial, see the opinion of Mr. Chief Justice Burger in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-574 , 100 S.Ct. 2814, 2820-2826 , 65 L.Ed.2d 973 (1980). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699784. Public record. Not legal advice.