Petition — Hayes v. Pennsylvania

80-142 | surso i999

eae L_MICHAEL RopaK JR., CLER

IN THE

Supreme Court of the United States

October Term, 1980

DAVID S. HAYES,

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

LIVINGSTON, MILLER, O’MALLEY

& CLARK

THOMAS A. LIVINGSTON, ESQUIRE

DENNIS J. CLARK, ESQUIRE

Counsel for Petitioner

Colonial Building

205 Ross Street

Pittsburgh, PA 15219

(412) 391-7686

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA, 15219

Petitioner, David S. Hayes, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the Supreme Court of Pennsylvania entered

in this proceeding on May 1, 1980.

QUESTION PRESENTED FOR REVIEW

Whether a state court decision recognizing a right

of access on the part of the public and the news media

to a pretrial suppression hearing when the prosecutor,

defendant and judge agree to closure, is in conflict with

this Court’s decision in Gannett Co., Inc. v. DePasquale,

443 U.S. 368, 61 L.Ed.2d 608 (1979) ?

ALL PARTIES TO THE PROCEEDING

IN THE SUPREME COURT OF PENNSYLVANIA

1. David S. Hayes

2. Commonwealti: of Pennsylvania (Office of the

District Attorney, Allegheny County, Pennsylvania)

Pittsburgh Press

Post-Gazette Publishing Company

First Amendment Coalition ‘

Greensburg Tribune-Review Publishing Company

WTAE-TV

"Pap

ii |

TABLE OF CONTENTS

PAGE

Question presented for review .............:c es i

All parties to the proceeding in the Supreme Court

Of Pennsylvania ..............:ccccescereesererssseeeeeeeteeteeees i

Opinions DelOW ............ccccccecceseseeeeeneeseeesterseeeeeenenseeesens 1

ec sassyeicasoveossssnvassarsecoansccosessvaesvosssscesccosecs 1

Constitutional provisions involved ..............::c0 1

SOE GE CIRG CABO ..........5000:0cscserccorsrseesernorrsessvessscers 2

ATguUMent ooo... cceccccecsseseeteteetenecsetseeessessessseeseneenenenronens 4

The decision by the state court below conflicts

with the decision of this Court in Gannett Co.,

Inc. v. DePasquale, 443 U.S. 368, 61 L.Ed.2d 608

1979), holding that the public does not have

a constitutional right of access to a pretrial

PFOCCERING 00.0... cececeseeteteesegetsetetsesetecetseeeseesterseneneees 4

ie ciccsrosayniesocncsssasssessscnseseocangoanccessenssees 8

Appendix (Opinions and Judgment of the Supreme

Court of Pennsylvania) 0.0.00... neers la

TABLE OF AUTHORITIES

CASES PAGE

Commonwealth of Pennsylvania v. Hayes, —— Pa.,

mmm, 414 A.2d SIS (1DTD) ..........crcercsserersseserseserees |

Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 61

I oo i csavcegeseressinereatsesassseresences 4,5, 6,7

North Carolina v. Butler, 441 U.S. 369, 60 L.Ed.2d

ee ssc susconieskeisiesdssensasda 5 Poe OM 7

Oregon v. Hass, 420 U.S. 714, 43 L.Ed.2d 570 (1976) 7

Richmond Newspapers, Inc. v. Virginia, —— U.S.

———, 27 Cr.Ls. S261 (1980) .........scercrrerrceroseees 4,5, 6,7

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment 1 ................ 1

United States Constitution, Amendment VI .............. 1,2

United States Constitution, Amendment XIV............ 2

STATUTE

Title 28, United States Code, §1257(3) ............:66 1

Constitutional Provisions Involved.

OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania,

three concurring opinions and one dissenting opinion are

reported in Commonwealth v. Hayes, at —— Pa. ,

414 A.2d 318 (1980), and appear in the Appendix hereto,

No opinion was rendered by the Court of Common Pleas

of Allegheny County.

JURISDICTION

The judgment of the Supreme Court of Pennsy]l-

vania was entered on May 1, 1980. On June 27, 1980,

upon application of counsel for petitioner, William J.

Brennan, Jr., Associate Justice, ordered that the time

for filing the within petition for writ of certiorari be

extended to July 30, 1980, and said petition was filed

on or before that date. The Court’s jurisdiction is in-

voked under 28 U.S.C, §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech or of

the press; or the right of the people peaceably to

assemble, and to petition the government for a

redress of grievances.

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the state and district wherein the

crime shal) have been committed, which district

Statement of the Case.

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the assist-

ance of counsel for his defence.

The Fourteenth Amendment, in pertinent part, provides:

SECTION 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

state wherein they reside. No state shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty,

or property without due process of law; nor deny to

any person within its jurisdiction the equal pro-

tection of the law.

STATEMENT OF THE CASE

Petitioner, a former five-term Pennsylvania state

legislator who recently resigned from office, is charged

with committing certain sexual offenses. Because of pe-

titioner’s status as an elected official and the nature of

the alleged offenses, tremendous publicity surrounded

the case between his arrest on October 26, 1979 and the

pretrial suppression hearing scheduled for March 10,

1980. Immediately prior to the commencement of said

hearing, at petitioner’s request and with the agreement

of the prosecutor, the trial judge pursuant to Pennsy]l-

vania law ordered it closed to the public and the news

media.

Statement of the Case.

When closure was ordered, counsel for the Pitts-

burgh Press was granted permission to intervene, but

the trial court denied the newspaper’s motion for a pub-

lic hearing. The Press appealed immediately to the

Supreme Court of Pennsylvania, and oral argument was

presented the next day (March 11, 1980). On March 13,

1980, pursuant to a petition filed by the news media, the

Supreme Court of Pennsylvania stayed the proceedings

in the trial court. On May 1, 1980, the court, by a vote

of 4-3, reversed the trial court’s closure order on the

ground that selection and sequestration of the jury prior

to commencement of the pretrial suppression hearing

would sufficiently protect petitioner’s right to a fair trial

under the circumstances.

On June 18, 1980, the Supreme Court of Pennsyl-

vania granted petitioner’s request for a stay pending

the filing of a petition for certiorari and disposition of

same in this Court. On June 27, 1980, upon application

of counsel for petitioner, Mr. Justice Brennan ordered

that the time for filing the within petition be extended

to July 30, 1980.

In the trial court, the issue of public right of access

to the pretrial suppression hearing was raised prior to

the commencement of said hearing when The Pittsburgh

Press requested to intervene. The Judge ruled the public

and the news media would be denied access to the pro-

ceeding.

In the appellate court, the issue concerning right of

access was orally argued, and as set forth infra, the

Pennsylvania court ruled that the public was entitled

to access in this case.

Argument.

ARGUMENT

The Decision by the State Court Below Conflicts with the

Decision of This Court in Gannett Co., Inc. v. De-

Pasquale, 443 U.S. 368, 61 L.Ed.2d 608 (1979),

Holding that the Public Does Not Have a Consti-

tutional Right of Access to a Pretrial Proceeding.

In Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 61

L.Ed.2d 608 (1979), the Court held the Constitution

does not require that a pretrial suppression hearing be

open and that the public and press have no constitu-

tional “affirmative right of access” to such a proceeding.

Id., at 630. In that case, all parties to the litigation

agreed that the hearing should be closed to protect the

defendants’ right to a fair trial.

The Court in Gannett determined the Sixth and

Fourteenth Amendments to the Constitution do not

grant any right to attend pretrial proceedings. 61

L.Ed.2d at 628. In examining the First and Fourteenth

Amendments, no constitutional impediments were found

because access to a transcript would eventually occur

and, therefore, denial of access to the pretrial proceed-

ing was only temporary. 61 L.Ed.2d at 629.

The holding in Gannett was not called into question

by the recent decision in Richmond Newspapers, Inc. v.

Virginia, —— U.S. —, 27 Cr.L. 3261 (1980), where

the Court held the public and press have a constitutional

right to attend criminal trials absent some overriding

consideration. It was explained:

“In Gannett Co., Inc. v. DePasquale, 443 U.S. 368

(1979), the Court was not required to decide wheth-

er a right of access to trials, as distinguished from

hearings on pretrial motions, was constitutionally

Argument.

guaranteed. The Court held that the Sixth Amend-

ment’s guarantee to the accused of a public trial

gave neither the public nor the press an enforce-

able right of access to a pretrial suppression hear-

ing. One concurring opinion specifically emphasized

that ‘a hearing on a motion before trial to suppress

evidence is not a trial...’ 443 U.S., at 394 (Bur-

ger, C.J., concurring).” Id. at 3263 (emphasis on

original)

As a result, it is all the more clear that public access to

judicial proceedings is largely dependent upon their

nature. If the proceeding is a trial, it must be open to

the public; if the proceeding involves a pretrial matter,

it need not be accessible.

Petitioner contends that the Supreme Court of

Pennsylvania’s decision in this matter conflicts with the

Court’s holding in Gannett, as reaffirmed in Richmond

Newspapers.

In the opinion of the court below, it was concluded:

“we wish to emphasize that our holding today ~

is not intended to eliminate the right of the trial

court to order closure of a pre-trial proceeding

where such an order is to assure the defendant of

his or her fair trial right... . We are only saying

that closure may not be ordered where some other

available procedural device can fully protect the

defendant’s right in a given instance.” See pp. 23a-

24a of Appendix hereto; citation omitted.

Petitioner argues that the court below, by so holding, is

actually ruling that access of the public and press to a

pretrial suppression hearing may not be denied where

alternatives to closure can adequately protect an ac-

cused’s right to a fair trial. Consequently, it conflicts

Argument,

with Gannett, which refused to recognize such access

when the defense, prosecution and trial court concur in

closing the courtroom.

Petitioner’s case presents a situation where the de-

fense requested closure, the prosecution joined in the

request and the trial judge granted it. Thereupon, a

news media representative was permitted to intervene

and fully set forth his client’s arguments in opposition

to the closure. The judge rejected those arguments. Thus,

the media cannot deny it was heard and its interests

were considered. “But interest alone does not create a

constitutional right.” Gannett, supra, at 630 (Burger,

C.J., concurring).

The opinion below recognizes a right of access spe-

cifically repudiated by Gannett. The state court decided

pretrial hearings will be open to the public unless no

“procedural device” short of closure can be employed to

assure a defendant’s rights under the circumstances. In

Gannett, the Court decided pretrial hearings will not be

open, if the parties involved in the litigation agree to

closure; whether or not other procedures could effec-

tively guarantee the protection of the accused’s rights

was not addressed, and the Court apparently believed no

such discussion was appropriate. In fact, in Richmond

Newspapers, the Court explained:

“In contrast to the pretrial proceeding dealt with in

Gannett, supra, there exist in the context of the

trial itself various tested alternatives to satisfy the

constitutional demands of fairness.” Id., at 3268;

emphasis supplied.

The Court in Gannett plainly said the news media

and general public do not enjoy a constitutional right of

Argument.

access to pretrial proceedings, while the Pennsylvania

court declared such a right exists if adequate alterna-

tives to closure are available. The state court is thus

attempting to impose a stricter rule than this Court has

laid down. Its interpretation goes “beyond the require-

ments of federal organic law. It follows that its judg-

ment cannot stand, since a state court can neither add

to nor subtract from the mandates of the United States

Constitution. Oregon v. Hass, 420 U.S. 714, 43 L.Ed.2d

570, 95 S.Ct. 1215.” North Carolina v. Butler, 441 US.

369, 376, 60 L.Ed.2d 286, 294 (1979).

Petitioner respectfully submits that the significant

and recurring problem presented in this case must be

resolved now. The decision from the Pennsylvania court

was handed down subsequent to Gannett, but before

Richmond Newspapers. The confusion and conflict en-

gendered by that decision can only serve to further fuel

the fires engulfing this most recent controversy in the

age-old fair trial versus free press debate.

Conclusion.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the Supreme

Court of Pennsylvania.

Respectfully submitted,

THOMAS A, LIVINGSTON

DENNIS J. CLARK

Counsel for Petitioner

LIVINGSTON, MILLER, O’MALLEY

& CLARK

The Colonial Building

205 Ross Street

Pittsburgh, PA 15219

July, 1980

é

APPENDIX

COMMONWEALTH of Pennsylvania,

Plaintiff,

v.

David HAYES.

In re PETITION OF the PITTSBURGH PRESS,

Tribune-Review Publishing Co.. WTAE-TV,. ~

Post Gazette Publishing Co. and

First Amendment Coalition, Intervenors.

Supreme Court of Pennsylvania.

Argued March 11, 1980.

Decided May 1, 1980.

On petition for extraordinary jurisdiction and sum-

mary reversal of an order of the Allegheny Court of

Common Pleas, Strauss, J., denying newspaper’s motion

for an open hearing on pretrial suppression motion, the

Supreme Court, Nix, J., at No. 63 Western District, Mis-

cellaneous Docket, 1980, per the majority view of four

Justices, each of whom filed a separate opinion, held that

the newspaper’s petition would be granted and the cause

remanded.

Requests for extraordinary jurisdiction granted;

order reversed and cause remanded.

Larsen, Flaherty and Kauffmann, JJ., filed con-

curring opinions.

Roberts, J., filed a dissenting opinion in which

Eagen, C. J., and O’Brien, J., joined.

John H. Bingler, Jr., Thorp, Reed & Armstrong,

Clyde H. Slease, III, Pittsburgh, for petitioner.

Thomas A. Livingston, and Robert Vincler, and

Kemal A. Mericli, Asst. Dist. Attys., Pittsburgh, for

plaintiff.

2a

Appendix.

Walter T. McGough, Reed, Smith, Shaw & McClay,

John P. McComb, Jr., P. Jerome Richey, Moorhead &

Knox, Pittsburgh, for WTAE-TV.

Before EAGEN, C. J., and O’BRIEN, ROBERTS, NIX,

LARSEN, FLAHERTY and KAUFFMANN, JJ.

4

' OPINION

Nix, Justice.

This lawsuit represents yet another dispute in the

continuing controversy between “free press” and “fair

trial.” The increasing frequency of these disputes and

the mounting acrimony engendered graphically demon-

strates the need for clear and decisive judicial direction

in this area. One of the major reasons for the difficulty in

obtaining acceptable solutions has been a lack of objec-

tivity and flexibility in approaching the difficult prob-

lems involved. The issue too frequently is framed as one

of competing unalterable principles, rending an accom-

modation unnecessarily difficult. The analysis employed

in these controversies has been undermined by the temp-

tation to erytol the superiority of one right over the

other and a lack of regard for the more pressing need

to harmonize the respective interests.

The accused in the instant case is an elected state

official who has been charged with sexually assaulting

and supplying drugs to a 17 year old male high school

student.

A suppression hearing had been reserved for the

start of the trial, and upon the conclusion of the hearing,

the trial would commence. At the request of the defense

counsel, pursuant to Pa.R.Crim.P. 323(f), Judge Strauss

of the Allegheny Court of Common Pleas granted the

3a

Appendix.

defense motion to close the suppression hearing. The

Commonwealth concurred with the defense motion to

close the hearing to the public and the press.

A representative of the Pittsburgh Press newspaper

objected to the order and sought permission to inter-

vene to protect the public and the Press’s interest in an

open hearing. Judge Strauss gran‘*-d the Press’s peti-

tion to intervene, then denied the Press’s motion for an

open hearing. Judge Strauss also rejected the Press’s

Suggestion that the jury selection be completed prior

to the suppression hearing and that the jury panel then

be sequestered.

Following these rulings, Judge Strauss postponed

the suppression hearing to provide the Press an oppor-

tunity to seek review by this Court. The Press filed a

Petition for Stay which was granted by Mr. Justice

O’Brien. The Press also filed a Petition for Exercise of

Plenary Jurisdiction, asking the full Court to hear and

decide the Press’s Petition for Summary Reversal of the

Lower Court. The Supreme Court granted permission to

all media organizations to intervene in this matter, and

on March 11, 1980, the full Court heard oral arguments

on the Petition for Summary Reversal.

I,

The most recent pronouncement of the U.S. Supreme

Court on the subject is illustrative of the fragmentation

that results where the approach adopted is to attempt

to assign a qualitative value to the various competing

interests involved. In Gannett v. DePasquale, 443 U.S.

368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) the Court was

called upon to determine whether a judge may order a

closed pretrial proceeding to safeguard the fair trial

4a

Appendix.

guarantee of the Sixth and Fourteenth Amendments of

the federal Constitution. !

Mr. Justice Stewart in an opinion joined by Chief

Justice Burger and Justices Powell, Rehnquist and

Stevens, upheld the trial court’s order of closure ex-

cluding the press from a pretrial suppression eviden-

tiary hearing, where the prosecutor and the court agreed

with the defense’s assessment that an unabated buildup

of adverse publicity was jeopardizing the accused’s right

to a fair trial. Mr. Justice Stewart justified his position

by rejecting a claim that the Sixth Amendment accorded

the public a right of access to public trials. Jd. at 378-

391, 99 S.Ct. at 2905-2911, 61 L.Ed.2d at 621-28. In sup-

port of his position, he offered two separate reasons.

First, he drew from the historical development of the

Sixth Amendment to conclude that the public has no

right under its provisions to attend criminal trials. /d.

443 U.S. 386 at n. 15, 99 S.Ct. 2908-2909 at n. 15, 61

L.Ed.2d 625 at n. 15.2 Second he argued in the alterna-

1. Mr. Justice Stewart, author of the opinion for

the Court, framed the issue as:

The question presented in this case is whether mem-

bers of the public have an independent constitution-

al right to insist upon access to a pretrial judicial

proceeding, even though the accused, the prosecu-

tor and the trial judge all have agreed to the closure

of that proceeding in order to assure a fair trial.

443 U.S. at 370, 99 S.Ct. at 2901, 61 L.Ed.2d at 616.

2. This portion of his analysis has been criticized

as being unclear as to whether the holding was intended

to extend to trials or merely to pretrial hearings. The

Supreme Court, 1978 Term, 93 Harv.L.Rev. 60, 65 (1979).

The criticism is inspired by the last sentence of Mr. Jus-

tice Stewart’s Sixth Amendment analysis which flatly

states, ‘“‘members of the public have no constitutional

5a

Appendix.

tive, in the event such a right to public access did exist

under the Sixth and Fourteenth Amendments, it would

not extend to pretrial proceedings. Jd. at 387-391, 99

S.Ct. at 2909-2911, 61 L.Ed.2d at 626-28. Although stat-

ing that he was reserving the q. estion as to the public’s

right of access under the First and Fourteenth Amend-

ments, id. at 391-393, 99 S.Ct. at 2911-2912, 61 L.Md.2d

at 629, Mr. Justice Stewart did, however, implicitly limit

whatever right might exist thereunder by concluding

that in the case then before the Court, the trial court

had satisfied those concerns. Jd. at 391-394, 99 S.Ct. at

2911-2913, 61 L.Ed.2d at 629-30.°

right under the Sixth and Fourteenth Amendments to

attend criminal trials.’’ 443 U.S. at 391, 99 S.Ct. at 2911,

61 L.Ed.2d at 628. The alternative argument offered by

Mr. Justice Stewart would also indicate that he intended

this broad holding.

3. Mr. Justice Stewart emphasized that in his view

an accused did not have a right to a private trial.

While the Sixth Amendment guarantees to a de-

fendant in a criminal case the right to a public

trial, it does not guarantee the right to compel a

private trial. “The ability to waive a constitutional

right does not ordinarily carry with it the right to

insist upon the opposite of that right.” Singer v.

United States, 380 U.S. 24, 34, 85 S.Ct. 783 [790], 13

L.Ed.2d 630.

Id. at 382, 99 S.Ct. at 2907, at 61 L.Ed.2d at 623.

Also, Mr. Justice Stewart noted that:

The question in this case is not, as the dissenting

opinion repeatedly suggests, post, at [406, 99 S.Ct.

at] 2919, [61 L.Ed.2d 636], whether the Sixth and

Fourteenth Amendments give a defendant the right

to compel a secret trial.

ae 382, 99 S.Ct. at 2907 n. 11, 61 L.Ed.2d at 623

n, 11.

6a

Appendix.

Mr. Justice Powell joined the opinion for the Court,

and also wrote a concurring opinion in which he con-

sidered the First Amendment issue. He expressed the

view that the public has a right of access to both trials

and pretrial hearings under the First Amendment and

that right must be balanced against the defendant’s

right to a fair trial. Jd. at 398-402, 99 S.Ct. at 2915-2817,

61 L.Ed.2d at 633-35. He concluded that closure could

only be justified where it is demonstrated that the de-

fendant would otherwise be prejudiced. Jd. He was satis-

fied that the record in Gannett sufficiently established

prejudiced to warrant closure in that case. Jd. at 401-404,

99 S.Ct. at 2916-2918, 61 L.Ed.2d at 635-36. Mr. Justice.

Rehnquist also joined the opinion of the Court and ex-

tended its holding by asserting that there is no public

right of access under the First Amendment. /d. at 404-

405, 99 S.Ct. at 2918, 61 L.Ed.2d at 637. Thus, he adopted

the position that an accused seeking closure was not

required to make a showing of harm and a trial judge

was not required to give reasons for ordering closure.

Id. at 403-405, 99 S.Ct. at 2917-2918, 61 L.Ed.2d at 636-

37. Chief Justice Burger was also a member of the ma-

jority who chose to write a separate concurring opin-

ion. He advocated the position that the framers of the

Constitution did not intend to include a public right of

access to pretrial proceedings within the Sixth Amend- —

ment because unlike trials, they were not open to the

public at common law. Id. at 394-397, 99 S.Ct. at 2913-

2914, 61 L.Ed.2d at 630-32.

The dissenting view, authored by Mr. Justice Black-

mun, maintained that the public has a right under the

4. Mr. Justice Stevens was the fifth member of

the majority and he did not file a separate opinion.

Ta

Appendix.

Sixth Amendment to attend criminal proceedings.®

Nonetheless, the dissent did recognize that closure of a

pretrial suppression in a criminal case would be war-

ranted if there was ‘‘a sufficient showing to establish the

strict and inescapable necessity” for such an order. /d.

at 448, 99 S.Ct. at 2940, 61 L.Ed.2d at 665.

If we were to focus our inquiry upon whether the

various interests reached constitutional proportions,

Gannett would provide little guidance. Although five

members of the Court rejected the claim that*the Sixth

and Fourteenth Amendments conferred upon the public

a right of access, at least to pretrial suppression pro-

ceedings, a majority of the Court did, however, conclude

the public’s right of access was constitutionally guaran-

teed. Although not accepting the four dissenters’ Sixth

Amendment position, Mr. Justice Powell did find the

right constitutionally protected under the First Amend-

ment.

...I would hold explicitly that petitioner’s re-

porter had an interest protected by the First and

Fourteenth Amendments in being present at the

pretrial suppression hearing. As I have argued in

Saxbe v. Washington Post Co., 417 U.S. 843, 850,

94 S.Ct. 2811 [2815], 41 L.Ed.2d 514 (1974) (Pow-

ell, J., dissenting) , this constitutional protection de-

rives, not from any special status of members of

the press as such, but rather because “[i]n seeking

out the news, the press...acts as an agent of the

public at large,’’ each individual member of which

cannot obtain for himself “the information needed

5. Id. at 406-449, 99 S.Ct. at 2919-2941, 61 L.Ed.2d

at 638-65, joined by Justices Brennan, White and

Marshall.

8a

Appendix.

for the intelligent discharge of his political re-

sponsibilities.”’ |

Id. at 397, 99 S.Ct. at 2914-2915, 61 L.Ed.2d 632.

Additionally, it must be remembered that the majority

with the exceptions of Justices Powell and Rehnquist

have yet to express a definitive view on the First Amend-

ment’s impact on the area in question.

However, whether or not the right of public access

is of constitutional dimension is not critical to the prob-

lem usually raised in these disputes. Even if we interpret

Gannett as establishing that the public right of access

is constitutionally guaranteed, nevertheless, as noted by

Mr. Justice Powell, it is not an absolute, unqualified

right.

The right of access to courtroom proceedings,

of course, is not absolute. It is limited both by the

constitutional right of defendants to a fair trial,

see, e. g., Estes v. Texas, 381 U. S. 532, 85 S.Ct. 1628,

14 L.Ed.2d 543 (1965), and by the needs of govern-

ment to obtain just convictions and to preserve the

confidentiality of sensitive information and the

identity of informants. Cf. Procunier v. Martinez,

416 U.S. 396, 412-413, 94 S.Ct. 1800 [1810-1811], 40

L.Ed.2d 224 [71 Ohio Ops.2d 139] (1974) ; Houchins

v. KQED, 438 U.S. 1, 34-35, 98 S.Ct. 2588 [2607-

2609], 57 L.Ed. 553 (1978) (Stevens, J., dissent-

ing); Saxbe v. Washington Post Co., supra, [417

U.S.] at 872-873, 94 S.Ct. [2811 at 2825-2826, 41

L.Ed.2d 514]. The task of determining the applica-

tion of these limitations in each individual trial

necessarily falls almost exclusively upon the court

asked to exclude members of the press and the

public from the courtroom.

9a

Appendix.

Id. at 398, 99 S.Ct. at 2915, 61 L.Ed.2d at 633.

Moreover, the members of the Court who would not

assign constitutional stature to the public right of ac-

cess, nonetheless, recognized the great societal interest

in the right.

There can be no blinking the fact that there is

a strong societal interest in public trials. Openness

in court proceedings may improve the quality of

testimony, induce unknown witnesses to come for-

ward with relevant testimony, cause all trial par-

ticipants to perform their duties more conscien-

tiously and generally give the public an opportunity

to observe the judicial system.

Id. at 383, 99 S.Ct. at 2907, 61 L.Ed.2d at 623. (Opin-

ion of the Court).

It is thus readily apparent that where a less re-

strictive alternative is available for assuring the fair

trial guarantee and the use of that alternative does not

unduly burden the expeditious disposition of the cause,

all of the views expressed by the members of the Gan-

nett Court would have no serious disagreement with a

requirement that the alternative procedure should be

opted for in preference to closure.

II.

Turning next to the Constitution of this Common-

wealth, it is to be noted that in addition to providing a

right to the accused for “a speedy trial,” Art. 1, § 9, it

also has the additional requirement that “all courts shall

be open.” Art. 1, § 11. It is suggested that Art. 1, § 11,

which does not have a counterpart in the federal Consti-

tution, places an added responsibility on the courts of

10a

Appendix.

this Commonwealth to protect the public’s right of

access. Unquestionably, the “all courts shall be open”

provision has a firm foundation in our constitutional

history, having been provided for in the 1682 Frame of

Government and 1776 Constitution. Nevertheless, most

of the decisions construing this phrase have been in the

context of a citizen’s right to a legal remedy for a wrong

or injury. See, e. g., Parker v. Children’s Hospital of

Phila., 483 Pa. 106, 394 A.2d 932 (1978); Mayle v. Pa.

Dept. of Hwys., 479 Pa. 384, 388 A.2d 709 (1975) ; Singer

v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) ; Dolan v.

Linton’s Lunch, 397 Pa. 114, 152 A.2d 887 (1959).

The few cases that have considered this portion

of Art. 1, § 11 with reference to the public’s right of

access have frequently intertwined the Art. 1, § 9 guar-

antee of a speedy public trial. This would suggest the

implicit view that Art. 1, § 11 did not provide any

greater right in this context than that provided in Art.

1, § 9 and that the primary concern was to assure the

accused of protection against star-chamber proceedings.

See, e. g., Commonwealth v. Trinkle, 279 Pa. 564, 124

A. 191 (1924).

It was thought the presence of the public generally

would constrain a court, otherwise predisposed, to

accord the witness a fair trial. Convictions by

secret trials were therefore abolished. Public trials,

with public records, were introduced and our Con-

stitution perpetuates this practice. Jd. at 568, 124

A. at 192.

In Commonwealth ex rel. Paylor v. Cavell, 185

Pa.Super. 176, 138 A.2d 246 (1958) cert. denied, 358

U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 88, the Superior Court

discussed at length the Pennsylvania constitutional

—

lla

Appendiz.

ramifications of a public trial and the right to exclude

spectators from criminal proceedings, mentioning Art.

1, § 11 only in a footnote reference.6 Thus, our re-

search of the appellate decisional law fails to uncover

any support for the claim that Art. 1, § 11, open court

provision, provides a greater right of access to the

public in criminal trials than the public trial provisions

of the federal and state Constitutions.

Our decisions do, however, make it clear that the

courts of this Commonwealth may exclude members

of the public from criminal proceedings where the in-

terests of justice require. Commonwealth v.Principatti,

260 Pa. 587, 104 A. 53 (1918) (the court hag the power

to exclude persons from a courtroom during the testi-

mony of a witness where that witness was in fear of

retaliation by those present if they heard his testi-

mony). Commonwealth v. Trinkle, supra; Common-

wealth ex rel. Paylor v. Cavell, supra. Most recently,

this Court held that a pretrial suppression hearing

closure in order to protect the fair trial rights of the

accused did not offend the Pennsylvania Constitution.

Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484,

387 A.2d 425 (1978).

Nevertheless, we terminate this review of the state

constitutional provisions, as we did with the federal

Constitution, with the conclusion that the use of closure

6. See 185 Pa.Super. at 180 n. 3, 138 A.2d 246.

in this decision the Court indicated that “in a broad

sense the right to a public trial is a right of the public”

but that right did not diminish the fact that the public

trial provision was primarily designed to protect the ac-

cused and that the accused had the right to waive the

right. Commonwealth ex rel. Paylor v. Cavell at 184, 138

A.2d 246, 250.

~

12a

Appendix.

of a pretrial suppression proceeding may properly be

limited where there is an effective and efficient alterna-

tive means to assure the accused’s fair trial rights.

This position is virtually compelled by the language

of Mr. Justice Roberts speaking for the Court in Phil-

adelphia Newspapers, Inc. v. Jerome, supra at 503—04,

387 A.2d at 434—435:

We believe that any limitation on access should

be carefully drawn. First, the right of access to

court proceedings should not be limited for any

reason less than the compelling state obligation to

protect constitutional rights of criminal defendants

and the public interest in the fair, orderly, prompt,

and final disposition of criminal proceedings. Sec-

ond, access should not be limited unless the threat

posed to the protected interest is serious. Third,

rules or orders limiting access should effectively

prevent the harms at which they are aimed. Finally,

the rules or orders should limit no more than is

necessary to accomplish the end sought. Because

the challenged Rules and orders are closely tailored

to protecting both the constitutional right of de-

fendants to a fair trial and the public’s interest

in the fair and efficient administration of criminal

justice, we denied relief.“

7. Mr. Justice Roberts in a desperate attempt to

provide legitimacy for his position has deliberately

ignored the obvious distinctions between the facts

presented in this record and those before the Court in

Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484,

387 A.2d 425 (1978). In Jerome we were faced with the

question as to whether closure could be utilized in a pre-

trial proceeding where it was necessary to assure a fair

trial. Here the question is raised as to the propriety of

the use of closure where the fair trial right of the ac-

13a

Appendix.

III.

The view that any limitation on the public’s access

to criminal judicial proceedings should be carefully

drawn was reflected in all of the ‘views expressed by

the members of the Supreme Court in Gannett. As just

mentioned, it was also the view of this Court in Jerome.

The only point of difference was as to how stringent

the requirements should be fashioned in determining

the appropriate use of closure. For illustration, the

dissenters in Gannett did

...not deny that the publication of informa-

tion learned in an open proceeding may harm ir-

reparably, under certain circumstances, the ability

of a defendant to obtain a fair trial.

443 US. at 439, 99 S.Ct. at 2936, 61 L.Ed.2d at 659.

While this recognition occasioned them to accept that

closure in some instances would be acceptable, their

determination as to when it could be used represented

the most circumscribed view. Mr. Justice Powell, whose

position probably represents the middle ground, also

recognized the need to limit the use of closure.

Thus, where a defendant requests the trial court

to exclude the public, it should consider whether

there are alternative means reasonably available

by which the fairness of the trial might be pre-

served without interfering substantially with the

cused can be fully protected by a means which does not

intrude upon the public’s access. We are not here in-

dulging in an “ad hoc determination” for “media ap-

proval” (see dissenting opinion, Roberts, J., page 338)

but rather we are applying the principle announced in

Jerome (as articulated by Mr. Justice Roberts) to the

facts of the case before us.

l4a

Appendix.

public’s interest in prompt access to information

concerning the administration of justice. Similarily,

because exclusion is justified only as a protection

of the defendant’s right to a fair trial and the

State’s interest in confidentiality, members of the

press and public objecting to the exclusion have

the right to demand that it extend no farther

than is likely to achieve these goals.

Id., at 400, 99 S.Ct. at 2916, 61 L.Ed.2d at 634

(Powell, J., concurring).

Even the view of Mr. Justice Stewart, which refused

to recognize public access as a constitutionally pro-

tected guarantee under the Sixth and Fourteenth

Amendments, nevertheless, conceded :

We certainly do not disparage the general desir-

ability of open judicial proceedings. At 393, 99 S.Ct.

at 2912, 61 L.Ed.2d at 630.

The instant closure order was entered pursuant to

Pa.R.Crim.P. 323(f)8 at the express request of the

defense and concurred in by the Commonwealth. Peti-

tioner questions the sufficiency of the showing before

the trial court of the need to involve the provisions of

section (f) and also urges that there is a viable alterna-

tive in this case which eliminates the need of the

8. Pa.R.Crim.P. 323(f) provides:

The hearing, either before or at trial, shall be held

in open court uniess defendant moves that it be held

only in the presence of the defendant, counsel for

the parties, court officers and necessary witnesses.

If the hearing is held after the jury has been sworn,

it shall be held outside the hearing and presence of

the jury. In all cases the court may make such order

concerning publicity of the proceedings as it deems

appropriate under Rules 326 and 327.

15a

Appendix.

closure order. We need not consider the former com-

plaint since we agree with petitioner's latter position.°

Even if we were to relegate the public’s right to access

to a common law tradition, there is no justification to

deny the right on Sixth and Fourteenth Amendment

grounds where an alternative measure could accomplish

the desired result.

It is conceded in the case at bar that sequestration

in this case can fully protect the defendant’s fair tria!

rights. The court had previously scheduled this sup-

pression hearing to be held immediately before the

commencement of trail. Further, in view of the limited

anticipated time to be consumed in this hearing, the

use of sequestration will not be unduly burdensome,

costly or inconvenient. In view of the availability of

sequestration which, in this case, fully protects the

accused’s fair trial rights and does not impede the

‘orderly resolution of the case or unduly increase the

administrative costs, the trial court was without justi-

fication to invoke the provisions of 323(f) and thereby

deny public access to these proceedings.

IV.

The final question that must be considered is the

defendant’s contention that, although sequestration will

protect his Sixth Amendment rights, his right of privacy

9. We recognize that.the question of who pos-

sesses the burden of persuasion and the quantum of

proof necessary to show the need for closure crystallizes

the differences of the members of the Gannett Court.

Although a definitive resolution is not now required

in view of our disposition in this matter, it would appear

the limitations articulated by Mr. Justice Roberts in

Jerome are in accord with the middle ground adopted by

Mr. Justice Powell in his concurring opinion.

16a

Appendix.

would be jeopardized by its use in this case. Of course,

if the defendant prevailed in this contention, we could

not find that sequestration was an adequate and viable

alternative. This novel argument was raised in oral

argument by the defense and not briefed. Carried to

its logical conclusion, it would require closure in all

suppression proceedings where the admissibility of

evidence belonging to or taken from the possession of

the defendant is challenged. Our research of the de-

velopment of the law of privacy offers no support for

the protection the defendant presently seeks.

In the American jurisprudential system, both tort

and constitutional law recognize that an individual has

the right to be free from unwarranted invasions of

privacy. The origin of the tort cause of action for in-

vasion of privacy was an 1890 Harvard Law Review!®

article by Samuel P. Warren and Louis D. Brandeis.

This article analyzed a number of cases in which relief

had been granted on the basis of defamation, invasion

of property rights, or breach of implied contract, and

concluded that these cases were based on a broader

principle entitled to separate recognition—the right to

privacy. See Prosser, Law or Torts, 302 (1971) (here-

inafter Prosser) . Initially, American courts were divided

in their acceptance of the new tort,11 but after its

10. Warren and Brandeis, The Right to Privacy,

4 Harv.L.Rev. 193 (1890).

11. See, e. g., Mackenzie v. Soden Mineral Springs

Co., 27 Abb.N.C. 402, 18 N.Y.S 240 (1891); Marks v.

Jaffa, 6 Misc. 290, 26 N.Y.S. 980 (1893) ; Schuyler v. Cur-

tis, 147 N.Y. 434, 42 N.E. 22 (1895); Corliss v. E. W.

Walker Co., D.Mass., 64 F. 280 (1894) ; Atkinson v. John

E. Doherty & Co., 121 Mich. 372, 80 N.W. 285 (1899).

17a

Appendix.

recognition in the Restatement of Torts, § 867 (1939) ,1?

the tide turned in favor of its acceptance.

The number of tort cases asserting a cause of

action for invasion of privacy blossomed.13 In 1960,

three quarters of a century after the Warren and

Brandeis article, Professor Prosses made a mammoth

effort to bring order to the case law which was “tied

together by the common name, but otherwise have

almost nothing in common except that each represents

an interference with the right of the plaintiff to be

let alone.”14 In a significant scholarly article,!5 Pro-

fessor Prosser categorized the first 400 privacy deci-

sions dating back to the 1890's and organized the de-

cisions under four headings: intrusion upon the piain-

12. The Restatement of Torts provides:

< 867, Interference With Privacy.

A person who unreasonably and seriously inter-

feres with another’s interest in not having his af-

fairs known to others or his likeness exhibited to

the public is liable to the other.

13. “Twelve states (plus Alaska and the District

of Columbia) recognized legitimate privacy interests

between 1890 and 1941; eighteen states had done so by

1956, and by 1960, thirty-one states had recognized priv-

acy as a legitimate interest.” O’Brien, Privacy and the

Right to Access: Purposes and Paradoxes of Informa-

tion Control, 30 Admin.L.Rev. 45, 66 (1978).

14. Prosser, Torts, 804 (4th Edit. 1971) [herein-

after Prosser]. Judge Cooley in his treatise, Cooley,

Torts, 29 (2nd Edit. 1888), first coined the phrase the

“right to be let alone.” Warren and Brandeis adopted

this phrase as a summary definition of privacy. 4 Harv.

L.Rev. at 195.

15. Prosser, Privacy, 48 Cal.L.Rev. 383 (1963).

18a

Appendix.

tiff’s seclusion or private affairs,16 public disclosure

of embarassing private facts about the plaintiff,17 pub-

licity which places the plaintiff in a false light,18 and

appropriation of the plaintiff’s name or likeness for

the defendant’s advantage.!9 Professor Prosser’s schol-

arship has had a great influence on the developing case

law? and the Restatement of Torts, Second, has adopted

his categories for invasions of privacy.21! Clearly, the

tort theory is not helpful to the defendant in the in-

stant case. Whether or not the anticipated disclosures

would constitute the tort, his remedy would be damages

for any loss sustained thereby not the closure of a

proceeding where an improper disclosure might occur.

16. The tort of intrusion upon the plaintiff’s se-

clusion or privacy consists of an act of prying or intru-

ding, an instrusion objectionable to the reasonable per-

son, and the thing to which there is an intrusion is

private. Prosser at 808.

17. The tort of public disclosure of private facts

consists of public disclosure by defendant of private

information about the plaintiff and the matters disclosed

are considered private by reasonable persons. Prosser

at 809.

18. The tort of placing the plaintiff in a false light

consists of publication of facts about plaintiff by defend-

ant which places plaintiff in a false light, the false light

is objectionable to reasonable people, and malice on the

part of the defendant where the published matter is in

the public interest. Prosser at 812.

19. This tort consists of the appropriation by de-

fendant of plaintiff's name or likeness for the defend-

ant’s commercial advantage. Prosser at 805.

20. See the discussion in T. Gerety, Redefining

Privacy, 12 Harv.L.Rev. 233 (1977).

21. See, Restatement (Second) Torts §§ 625A-

6521 (1977).

19a

Appendix.

Constitutional law is the second area of American

jurisprudence which provides relief to invasions of an

individual’s privacy. Although the United States Con-

stitution does not explicitly mention an individual’s

right to privacy, for almost a century the Supreme

Court has recognized that the right of personal privacy

does exist under the Constitution.

In varying contexts, the Court or individual Justices

have, indeed, found at least the roots of that right

in the First Amendment, Stanley v. Georgia, 394

U.S. 557, 564 [, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542]

(1969); in the Fourth and Fifth Amendments,

Terry v. Ohio, 392 U.S. 1, 8-9 [88 S.Ct. 1868,

1872-1873, 20 L.Ed.2d 889] (1968), Katz v. United

States, 389 U.S. 347, 350 [, 88 S.Ct. 507, 510, 19

L.Ed.2d 576] (1967), Boyd v. United States, 116

U.S. 616 [, 6 S.Ct. 524, 29 L.Ed. 746] (1886), see

Olmstead v. United States, 277 U.S. 438, 478 [48

S.Ct. 564, 572, 72 L.Ed, 944] (1928) (Brandeis, J.,

dissenting) ; in the penumbras of the Bill of Rights,

Griswold v. Connecticut, 381 U.S. [479,] at 484-485

[85 S.Ct. 1678, 14 L.Ed.2d 510]; in the Ninth

Amendment, id., at 486 [85 S.Ct. 1678 at 1682]

(Goldberg, J., concurring); or in the concept of

liberty guaranteed by the first section of the Four-

teenth Amendment, see Meyer v. Nebraska, 262

U.S. 390, 399 [43 S.Ct. 625, 626, 67 L.Ed. 1042]

(1923). These decisions make it clear that only

personal rights that can be deemed “fundamental”

or “implicit in the concept of ordered liberty.”

Palko v. Connecticut, 302 U.S. 319, 325 [, 58 S.Ct.

149, 152, 82 L.Ed. 288] (1937), are included in

this guarantee of personal privacy. They also make

it clear that the right has some extension to activi-

20a

Appendix.

ties relating to marriage, Loving v. Virginia, 388

U.S. 1, 12 [, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010]

(1967) ; procreation, Skinner v. Oklahoma, 316 U.S.

535, 541-542 [62 S.Ct. 1110, 1113-1114, 86 L.Ed.

1655] (1942); contraception, Hisenstadt v. Baird,

405 U.S., [438] at 453-454 [92 S.Ct. 1029, at

1038-1039, 31 L.Ed.2d 349]; id., at 460, 463-465

[92 S.Ct. 1029, at 1042, 1043-1044] (White, J.,

concurring in result) ; family relationships, Prince

v. Massachusetts, 321 U.S. 158, 166 [64 S.Ct. 438,

442, 88 L.Ed. 645] (1944); and child rearing and

education, Pierce v. Society of Sisters, 268 U.S.

510, 535 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925),

Meyer v. Nebraska, supra.

Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705,

726-727, 35 L.Ed.2d 147 (1973).

In response to the frequent criticism that the con-

stitutional concept of a right to privacy is largely un- |

defined,22 the Supreme Court attempted to categorize

its privacy right decisions. In Whalen v. Roe, 429 U.S.

589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the Court was

presented with a challenge to the constitutionality of

a New York statute which established a central com-

puter file containing the names and addresses of all

persons who had obtained, pursuant to a doctor’s pre-

scription, drugs for which there is a lawful and unlawful

market. The appellees argued that the statute invaded

their constitutionally protected “zone of privacy.” 429

U.S. at 598, 97 S.Ct. at 876. Justice Stevens, writing for

a unanimous Court explained “[t]he cases sometimes

22. See, e. g., The Private I, University of Chicago

Magazine, 7, 8 (Autumn 1976); Tribe, American Con-

stitutional Law, Ch. 15 (1978).

21a

Appendix.

characterized as protecting ‘privacy’ have in fact in-

volved two different kinds of interests. One is the indi-

vidual interest in avoiding disclosure of personal mat-

ters,28 and another is the interest in independence in

making certain kinds of important decisions.’24 Jd. at

599, 97 S.Ct. 876. The appellees contended that the

statute threatened to impair both their interest in non-

disclosure of public information (their concern that

23. In his dissent in Olmstead v. United States, 277

U.S. 4388, [478,] 48 S.Ct. 564, [572,] 72 L.Ed. 944, [66

A.L.R. 376,] Mr. Justice Brandeis characterized “the

right to be let alone” as “the right most valued by civil-

ized men”; in Griswold v. Connecticut, 381 U.S. 479, 483,

85 S.Ct. 1678, [1681,] 14 L.Ed.2d 510, the Court said:

“(T]he First Amendment has a penumbra where privacy

is protected from governmental intrusion.” See also

Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d

542; California Bankers Assn. v. Shultz, 416 U.S. 21, 79,

94 S.Ct. 1494 [, 1526], 39 L.Ed.2d 812. (Douglas, J., dis-

senting) ; id., at 78, 94 S.Ct. 1494 [, at 1525,] 39 L.Ed.2d

812 (Powell, J., concurring).

429 U.S. at 599 n. 25, 97 S.Ct. at 876 n. 25.

24. Roe v. Wade, [supra 410 U.S. 113, 93 S.Ct. 705,

35 L.Ed.2d 147]; Doe v. Bolton, 410 U.S. 179, 93 S.Ct.

739, 35 L.Ed.2d 201; Loving v. Virginia, 388 U.S. 1, 87

S.Ct. 1817, 18 L.Ed.2d 1010; Griswold v. Connecticut,

[supra 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510];

Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571,

69 L.Ed. 1070; [39 A.L.R. 468]; Meyer v Nebraska, 262

U.S. 390, 43 S.Ct. 625, 67 L.Ed 1042 [29 A.L.R. 1446];

Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41

L.Ed. 832. In Paul v. Davis, 424 U.S 693, 713, 96 S.Ct.

1155, [1166,] 47 L.Ed.2d 405, the Court characterized

these decisions as dealing with “matters relating to mar-

riage, procreation, contraception, family relationships,

and child rearing and education. In these areas, it has

been held that there are limitations on the States’ power

to substantively regulate conduct.”

429 U.S. at 599-60 n. 26, 97 S.Ct. at 876-877 n. 26.

22a

Appendix.

their use of the drug would become known), plus their

interest in making important decisions independently

(their decision to take a prescribed drug would be in-

hibited by the disclosure requirement). After examining

the state’s safeguards to prevent unauthorized access

to the data, and concluding that this risk of unauthor-

ized access was too insubstantial to pose a real threat

to patient privacy, the court held “that neither the im-

mediate nor threatened impact of the patient identifica-

tion requirement ...on either the reputation or inde-

pendence of patients for whom Schedule II drugs are

medically indicated is sufficient to constitute an invasion

of any right or liberty protected by the Fourteenth

Amendment, 429 U.S. at 603-604, 97 S.Ct. at 878.

In the oral argument of the present case the de-

fendant asserted a constitutional right to privacy, and

in order to preserve his privacy rights, he wishes to

prevent public disclosure of the private matters sought

to be suppressed. The seeds of this right stem from the

Fourth Amendment of the United States Constitution.

The Fourth Amendment provides in part that:

[t]he right of the people to be secure in their

person, house, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no warrants shall issue, but upon probable

cause...

In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29

L.Ed. 746 (1886), the Supreme Court initially noted the

relationship between the Fourth Amendment and an in-

dividual’s privacy interest. In Boyd, the Court pointed

out that “a compulsory production of a man’s private

papers to establish a criminal charge against him... is

within the scope of the Fourth Amendment to the Con-

23a

Appendix.

stitution in all cases in which a search and seizure

would be, because it is a material ingredient and effects

the sole object and purpose of the search and seizure.”

Id. at 622, 6 S.Ct. at 528. The Court elaborated on the

Fourth Amendment’s protection of an individual’s

privacy rights and stated that it applies

_.. to all invasions on the part of the government

and its employes of the sanctity of a man’s home

and the privacies of life. It is not the breaking of

his doors, and the rummaging of his drawers, that

constitutes the essence of the offense; but it is the

invasion of his indefeasible right of personal secur-

ity, personal liberty and private property, where

that right has never been forfeited by his convic-

tion of some public offense...

Id, at 630, 6 S.Ct. at 532.

However, the accepted remedy for the protection

of this privacy interest has been the application of the

doctrine of exclusion. Mapp v. Ohio, 367 U.S. 643, 81

S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Moreover, not until

there had been marshalled impressive empirical data

justifying the need for the rule of exclusion, was ex-

clusion mandated for those violations. To urge an even

more stringent remedy without the slightest attempt

to justify the need for this additional protection, board-

ers on the frivolous and requires no further considera-

tion. It certainly does not warrant engrafting such a

significant intrusion upon the basic right of access of

the public in criminal proceedings.

V.

In conclusion, we wish to emphasize that our hold-

ing today is not intended to eliminate the right of

24a

Appendix.

the trial court to order closure of a pre-trial proceed-

ing where such an order is to assure the defendant

of his or her fair trial right.25 Philadelphia News-

papers, Inc. v. Jerome, supra. We are only saying that

closure may not be ordered where some other available

procedural device can fully protect the defendant’s right

in a given instance. Here, counsel for Mr. Hayes stated,

before the bar of this Court, that sequestration in this

case fully protected his client’s right to a fair trial. The

assistant district attorney indicated that the procedure

recommended by Press would not adversely affect the

prosecution’s position in this case.26 In this posture, we

were faced with the proposition, which we answer in the

negative, whether closure can be permitted where fair

trial considerations can be fully satisfied by a means

which will not intrude upon the public’s access to crim-

inal proceedings and the prosecution and the orderly

administration of justice are not adversely affected.?7

25. After an examination of the various views ex-

pressed by the members of the U.S. Supreme Court in

Gannett v. DePasquale, supra, a consideration of Art. I,

section 11 of the Pennsylvania Constitution, and an anal-

ysis of the asserted privacy claim, we find no basis for

concluding that the provisions of rule 323(f) may not

be used in appropriate situations.

26. One of the inherent weaknesses of the proce-

dure of sequestration is that it limits the Common-

wealth’s right to appeal from suppression rulings. Once

the jury is empanelled, double jeopardy considerations

are triggered. Here, as cited in the text, this is apparent-

ly not a concern of the prosecution.

27. We fully recognize that in many situations se-

questration will not offer a viable alternative to closure.

However, the horrors graphically depicted by Mr. Jus-

tice Roberts have no applicability to the case before us.

(See dissenting opinion, Roberts, J., pages 347-350).

Here the adequacy of sequestration is undisputed. We

are duty bound to decide questions based on the record

25a

Appendix.

Accordingly, the request for extraordinary jurisdic-

tion is granted, the order appealed from is reversed and

the cause is remanded.

LARSON, FLAHERTY and KAUFFMAN, JJ., filed con-

curring opinions.

Roperts, J., filed a dissenting opinion in which

EAGEN, C. J., and O’BRIEN, J., joined.

LARSEN, Justice, concurring.

The defendant, David Hayes, a Pennsylvania state

legislator from Erie, Pennsylvania, was arrested and

charged with two counts of rape, two counts of involun-

tary deviate sexual intercourse, one count of indecent

assault, and one count of corruption of a minor.

Immediately prior to the commencement of trial,

the Honorable Samuel Strauss (the trial judge) ordered

the suppression hearing closed to the public and the

media. The Pittsburgh Press Company intervened and

petitioned this Court for the exercise of plenary juris-

diction and for a stay and reversal of the low court’s

order. We granted the stay and immediately heard oral

argument from the attorneys for the Pittsburgh Press

Company, Tribune-Review Publishing Company, Alle-

gheny County District Attorney’s office and defendant.

I would hold that all criminal proceedings are open

to the public and to the media. The public’s and the

media’s right to attend these proceedings is absolute.

Article I, Section 11 of the Pennsylvania Constitution

before us and not upon specters conjured up by those

who would seek to find justification for reaching a par-

ticular result.

26a

Appendix.

provides “All Courts shall be open”; this article pro-

hibits secret or closed hearings and trials.

Human institutions have a tendency toward corrup-

tion; only when certain checks and balances are per-

mitted and/or imposed does this tendency become neu-

tralized. The tendency of corruption in the judiciary be-

comes greatest when the public and the media (the

public’s eyes and ears) are excluded from judicial pro-

ceedings. As I conceive of a democracy and of a free and

informed citizenry, the right of the public and of the

media to attend court proceedings must be absolute.

The rights of a litigant /defendant can be adequately

protected by numerous judicial tools: change of venue,

postponements, voir dire of prospective jurors, seques-

tration of jurors, etc.!

Therefore, I would reverse the lower court’s order

and remand for further proceedings consistent with

this opinion.

FLAHERTY, Justice, concurring.

Quite simply, our Constitution plainly states, “All

courts shall be open,” thus proscribing the closing of a

court proceeding. There are no exceptions and no discre-

tion to be exercised, other than to utilize available

alternatives, such as change of venue, sequestration, and

the like; but, in no event is the closure of a court pro-

ceeding constitutionally permissible.

1. For a view of problems that some courts have

had in attempting to resolve this issue, see Gannett v.

DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608

(1979) ; United States v. Cianfrani, 573 F.2d 835 (3rd

Cir. 1978); Philadelphia Newspapers, Inc. v. Jerome,

478 Pa. 484, 387 A.2d 425 (1978).

27a

Appendix.

KAUFFMAN, Justice, concurring.

To the extent that the Opinion of the Court reverses

the Order of the trial court closing the pretrial suppres-

sion hearing, I join. However, in light of the fundamen-

tal, historical and constitutional importance of the right

of public access to judicial proceedings, I would go on to

hold explicitly that petitioner’s reporters and the general

public have a constitutionally protected right to be pres-

ent at all adjudicative judicial proceedings, and that this

right of access may be limited only when strictly and in-

escapably necessary to protect a criminal defendant’s

Sixth Amendment right to a fair trial. Accordingly, I

would remand this matter to the trial court for an evi-

dentiary hearing and a careful balancing of these two

compelling constitutional rights.

I. FACTUAL BACKGROUND

This controversy initially arose as a result of crimi-

nal proceedings instituted by the Commonwealth against

David Hayes in the Court of Common Pleas of Allegheny

County. Because defendant is a representative in the

State Legislature, and because he is charged with sex-

ually assaulting and supplying drugs to a seventeen year

old male high school student, this case has attracted the

attention of both the public and press. !

At the start of the suppression hearing, which had

been scheduled to commence immediately prior to trial,

defendant, by oral motion concurred in by the prosecu-

1. On the record before us, it is impossible to

measure the nature and extent of press attention in this

ease because the trial judge did not require evidence of

either actual or potential prejudjicial publicity.

28a

Appendix.

tion, requested the trial court to close the hearing to the

public and the press.2 Petitioner, The Pittsburgh Press

Company (hereinafter “The Press’), thereupon success-

fully petitioned the trial court for leave to intervene for

the purpose of opposing the closure motion. See generally

United States v. Cianfrani, 573 F.2d 835, 845-46 (3d Cir.

1978).

Arguing against closure, The Press suggested that

the jury be selected and sequestered prior to the hearing.

Such a course of action, it was argued, would protect the

jury from any exposure to media reports concerning the

suppression hearing and would be convenient because

the trial was scheduled to commence immediately. With-

out any effort by defendant to demonstrate that he

would be deprived of a fair trial by an open suppression

hearing, the trial court rejected the procedure proposed

by The Press and order the hearing closed.*

2. The motion for closure was made pursuant to

Rule 323(f) of the Pennsylvania Rules of Criminal Pro-

cedure which provides:

The hearing, either before or at trial, shall be held

in open court unless defendant moves that it be

held only in the presence of the defendant, counsel

for the parties, court officers and necessary witnes-

ses. If the hearing is held after the jury has been

sworn, it shall be held outside the hearing and

presence of the jury. In all cases the court may

make such order concerning publicity of the pro-

re as it deems appropriate under Rules 326

an :

Pa.R.Crim.P. 323(f). See also Pa.R.Crim.P. 323(g),

326 & 327.

3. Following this ruling, the trial court granted

The Press a temporary stay in order to seek review by

this Court. The Press filed a Petition for Stay which was

29a

Appendix.

II. CONSTITUTIONALLY PROTECTED RIGHT OF

ACCESS TO PRETRIAL SUPPRESSION HEARINGS

The threshold inquiry is whether the public has a

constitutionally protected right of access to judicial pro-

ceedings in general, under either the United States or

the Pennsylvania Constitution, and, if so, whether that

right extends to pretrial suppression hearings.

A. The United States Constitution

In Gannett Company v. DePasquale, 443 U.S. 368, 99

S.Ct. 2898, 61 L.Ed.2d 608 (1979), a sharply divided

United States Supreme Court narrowly affirmed an order

excluding the public and press from a pretrial suppres-

sion hearing, holding that the closure order in that case

did not conflict with current constitutional standards. A

majority of the Court, however, in two separate opinions,

expressly recognized a federal constitutional right of

access to pretrial suppression hearings. Mr. Justice

Blackmun, in a concurring and dissenting opinion joined

by Messrs. Justice Brennan, White and Marshall, con-

cluded that the public has a right under the Sixth

Amendment to attend criminal proceedings, notwith-

standing the fact that it is the accused who seeks closure.

99 S.Ct. at 2921-33 (Blackmun, J., concurring in part and

granted by Mr. Justice O’Brien. The Press also filed peti-

tions urging that this Court exercise its plenary juris-

diction, see 42 Pa.C.S.A. § 726 (Purdon Pamph.1979),

and summarily reverse the trial court’s closure order.

This Court agreed to exercise jurisdiction, granted per-

mission to all media representatives to intervene, and,

on March 11, 1980, heard oral arguments on the Petition

for Summary Reversal.

30a

Appendix.

dissenting in part). In Mr. Justice Blackmun’s view,

this right of access extends to pretrial suppression hear-

ings, id. at 2933-36, and must be balanced against a crim-

inal defendant’s Sixth Amendment right to a fair trial.

Id. at 2936-39. Mr. Justice Blackmun concluded:

I emphasize that the trial court should begin

with the assumption that the Sixth Amendment re-

quires that a pretrial suppression hearing be con-

ducted in open court unless a defendant carries his

burden to demonstrate a strict and inescapable

necessity for closure.

Td. at 2938.

Although the majority in Gannett expressly re-

served consideration of the applicability of the First

Amendment, 99 S.Ct. at 2911-12, Mr. Justice Powell, in

a concurring opinion, concluded that the First and Four-

teenth Amendments protect the public’s right of access

to pretrial suppression hearings, 99 S.Ct. at 2914-16

(Powell, J., concurring) :

Because of the importance of the public’s having

accurate information concerning the operation of

its criminal justice system, I would hold explicitly

that petitioner’s reporter had an interest protected

by the First and Fourteenth Amendments in being

present at the pretrial suppression hearings.

4. Because Mr. Justice Blackmun concluded that

Sixth Amendment standards were sufficient to protect

the right of public access, he deemed it unnecessary to

reach the issue of access under the First Amendment.

99 S.Ct. at 2940 (Blackkmun, J., concurring in part and

dissenting in part).

—

—

31a

Appendix.

Id. at 2914 (emphasis added) (footnote omitted) 5

In the “Opinion of the Court,’ Mr. Justice Stewart

5. In my view, freedom of the press as guaranteed

by the First Amendment embraces three essential rights:

(1) right of access, (2) right of publication, and (3)

right of circulation. Although none of these rights is

absolute, arbitrary curtailment of any of them would

cripple the ability of the press to perform its vital func-

tions. The United States Supreme Court has established

a heavy presumption against the validity of any order

restraining publication, see Nebraska Press Association

v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683

(1976), and the right of circulation also has been care-

fully guarded. See Philadelphia Newspapers, Inc. Vv.

Swarthmore, 381 F.Supp. 228, 240 (E.D.Pa.1974). See

also Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669,

82 L.Ed. 949 (1938); Grosjean v. American Press Co.,

297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936) ; Re Jack-

son, 96 U.S. 727, 24 L.Ed. 877 (1878). The right of access

has not yet been accorded the same protection as the

other two, Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct.

2588, 57 L.Ed.2d 553 (1978) ; Sawbe v. Washington Post,

417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974) ; Pell

v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495

(1974), but there should be no doubt that press access

co as critical a governmental function as pretrial sup-

pression hearings must be constitutionally protected if

freedom of the press is to have any vitality whatsoever.

6. Although Mr. Justice Stewart’s opinion in

Gannett was denominated the “Opinion of the Court,”

it obtained that designation only because Mr. Justice

Powell joined in affirming the trial court’s closure order

based upon his belief that the trial court had “recognized

the constitutional right of the press and public to be

present at criminal proceedings” and had “concluded,

however, that in the ‘very unique situation’ presented

to it, closure had been appropriate .. ..” 99 S.Ct. at

2916-17 (Powell, J., concurring). In stark contrast, the

trial court in the instant case gave no recognition or

weight to the constitutional right of the press and public

to be present at the pretrial suppression hearing.

—/

32a

Appendix.

concluded that the Sixth and Fourteenth Amendments

do not give the public a constitutional right of access to

pretrial suppression hearings. 99 S.Ct. at 2904-13. Al-

though Mr. Justice Stewart recognized “a strong societal

interest in public trials,” he construed the language of

the Sixth Amendment guaranteeing to ‘‘the accused” the

right to a public trial literally to mean that the protec-

tive right was intended solely for the benefit of the

defendant. Jd. at 2905, 2907. Mr. Justice Stewart further

concluded that even if the Sixth Amendment did estab-

lish a right of public access, that right would not extend

to pretrial proceedings.’ Jd. at 2907.

Thus, five Justices in Gannett expressly recognized

a federal constitutional right of public and press access

to pretrial suppression hearings. They did not, however,

agree on either the appropriate standard of review or the

specific constitutional underpinnings of a right.8 Ac-

7. While reserving decision on the question of

whether the First and Fourteenth Amendments guaran-

tee public and press access, Mr. Justice Stewart con-

cluded that, even if that were so, the trial court had

adequately “balanced the ‘constitutional right of the

press and the public’ against the ‘defendant’s right to a

fair trial.’ ’’ 99 S.Ct. at 2912.

8. It is unclear whether the right of access is pro-

tected under the First or the Sixth Amendment. See

United States v. Cianfrani, 573 F.2d 835, 846-51 & 861-63

(3d Cir. 1978). It is also unsettled whether the right of

access may be limited at trial. See Richmond News-

papers, Inc. v. Virginia, Va., cert. granted, —— U.S.

——, 100 S.Ct. 204, 62 L.Ed.2d 132 (1979). Several mem-

bers of the Supreme Court have attempted to clarify

the meaning of Gannett in an unprecedented series of

extrajudicial statements. See The Supreme Court, 1978

Term, 93 Harv.L.Rev. 60, 65 n. 32 (1979). These com-

ments underscore the confusion and uncertainty which

pervades this area of federal constitutional law.

33a

Appendix.

cordingly, I now turn to the Constitution of this Com-

monwealth.®

B. The Pennsylvania Constitution

Article 1, Section 11 of the Constitution of this Com-

monwealth provides: ‘All courts shall be open.” This

constitutional mandate has been a part of Pennsylvania

jurisprudence since colonial days. The Pennsylvania

Frame of Government of 1682, ‘“[i]n many ways, [one

of] the most influential documents protecting individual

rights,” provided that in the Pennsylvania colony “all

courts shall be open.” 1B Schwartz, The Bill of Rights:

A Documentary History 130, 140 (1971). This provision |

was later incorporated into Section 26 of Pennsylvania’s

Constitution of 1776. Id. at 271.

Our state constitutional requirement that ‘“[aJll

courts shall be open”’ is derived from the strong common

law policy in favor of public proceedings. Jn re Oliver,

333 U.S. 257, 268-71, 68 S.Ct. 499, 505-507, 92 L.Ed. 682

(1948). The rule that all judicial proceedings are pre-

sumed to be public was considered at common law as a

check on judicial power and a deterrent to perjury. In

describing trial procedures, Blackstone note that “all...

evidence is to be publicly allowed or disallowed, in the

9. The Court in Gannett made clear that although

a criminal defendant’s right to a public trial is guaran-

teed by the Sixth Amendment, the public trial clause

does not guarantee to a criminal defendant the correl-

ative right to waive a public proceeding and compel

closure. 99 S.Ct. at 2907. See also 99 S.Ct. at 2924-25

(Blackmun, J., concurring in part and dissenting in

part). Indeed, the Court implicitly acknowledged the

power of the states to afford greater protection to the

public’s right of access than that recognized by the

federal constitution. 99 S.Ct. at 2912-13.

34a

Appendix.

face of the country; which must curb any secret bias or

partiality that might arise in his own breast.” 3 W.

Blackstone, Commentaries * 372. Blackstone also viewed

the public proceeding as a deterrent to perjury, since “a

witness may frequently depose that in private which he

will be ashamed to testify in a public and solemn tri-

bunal.’ Jd. at * 373.

Wigmore noted that public proceedings serve a vital

societal function in that they move the court, the parties

and the witnesses ‘more strongly ... toa strict conscien-

tiousness in the performance of duty.’ 6 J. Wigmore,

Evidence in Trials at Common Law § 1834 at 438 (Chad-

bourne rev. 1976). Moreover, public proceedings were

recognized as an important means of educating the pub-

lic about the processes of government and of instilling

confidence in the judgment of the courts:

Not only is respect for the law increased and intelli-

gent acquaintance acquired with the methods of

government, but a strong confidence in judicial rem-

edies is secured which could never be inspired by a

system of secrecy.

Id. (footnote omitted). See In re Oliver, 333 U.S. 257,

268, 270, 68 S.Ct. 499, 505, 506, 92 L.Ed. 682 (1948).

In 1827, Jeremy Bentham forcefully commented on

the relationship between public confidence in the judicial

system and open proceedings:

Without publicity, all other checks are insufficient:

in comparison of publivity all other checks are of

small account. Recordation, appeal, whatever other

institutions might present themselves in the charac-

ter of checks, would be found to operate rather as

35a

Appendix.

cloaks than checks; as cloaks in reality, as checks

only in appearance.

1 J. Bentham, Rationale of Judicial Evidence 524 (1827).

When construed in the light of its common law

origins, there can be little doubt that the “open courts”

clause of our Constitution was intended to establish a

public right of access to adjudicative judicial proceed-

ings. Indeed, the provision that “[a]ll courts shall be

open,” unless it is to be construed as a mere constitu-

tional frill, admits of no other reasonable interpreta-

tion.19 That our “[a]ll courts shall be open” language

was intended to create a public right to open civil and

criminal adjudicative judicial proceedings was expressly

recognized by Mr. Justice Stewart in Gannett. In reach-

ing his conclusion that the Sixth and Fourteenth Amend-

ments do not afford the public a federal constitutional

10. Mr. Justice Nix correctly observed in the Opin-

ion of the Court that some of our cases have inferred

that the primary concern of Article 1, Section 11 was “to

assure the accused of protection against star-chamber

proceedings.” Opinion of the Court at 322. This protec-

tion, however, is fully covered by the independent con-

stitutional guarantee found in Article 1, Section 9. To

construe the open courts provision as nothing more than

a guarantee of a “speedy public trial” would disregard

the plain language of Article 1, Section 11 and in conflict

with basic canons of constitutional interpretation, rele-

gate it to a simple redundancy. See Commonwealth v.

Russo, 388 Pa. 462, 131 A.2d 83 (1957). Significantly,

in contrast to the language of Article 1, Section 9 guar-

anteeing the accused a speedy public trial, the “open

courts” provision is not framed as a right of the accused

or indeed of any specific party in a judicial proceeding.

Given the generality with which it has been framed, it

is obvious that the right to “open courts” is to be enjoyed

by the public generally and may be asserted by any

member of the public.

36a

Appendix.

right to attend criminal trials, Mr. Justice Stewart dis-

cussed “whether the common-law rule of open proceed-

ings was incorporated, rejected or left undisturbed by

the Sixth Amendment.” 99 S.Ct. at 2908. Although he

concluded that the common law rule had not been incor-

porated by the Sixth Amendment, he noted:

In conspicuous contrast with some of the early state

constitutions that provided for a public right to open

civil and criminal trials, the Sixth Amendment con-

fers the right to a public trial only upon a defend-

ant and only in a criminal case.

Id. at 2908-09 (emphasis supplied). Among the “early

state constitutions” referred to and quoted by Mr. Jus-

tice Stewart were the Pennsylvania Constitutions of 1682

and 1776, both of which provided that “[a]ll courts shall

be open.” Jd. at 2908-09 & nn.15-16. Thus, Mr. Justice

Stewart recognized in Gannett that Article 1, Section 11

“provide[s] for a public right to open civil and criminal

trials.” Jd. at 2908-09.

As was stated almost 100 years ago in a commen-

tary on Article 1, Section 11:

The meaning of the words all courts shall be open,

used in the Constitution of the Commonwealth, is

that all courts shall be open for the administration

of law, right and justice, in controversies between

suitors, as matter of right, and not as of grace or

favor.... The general public also have the right of

admission to the court, as they are largely interested

in the public administration of law and justice.

Pierce, J., All Courts Shall be Open, 30 Pitts.L.J. 362

(1883).

37a

Appendix.

The concerns that prompted the framers of the

Pennsylvania Constitution to provide the “open courts”

guarantee described above are no less vital today. In-

deed, confidence in the proper functioning of our judicial

system is of particular concern in light of the general

public distrust of government institutions engendered

by recent disclosures of misconduct at all levels of gov-

ernment. Anything that impairs the open nature of judi-

cial proceedings threatens to undermine the confidence

of the public in judicial remedies and to impede the abil-

ity of the courts to function. Secret hearings will always

be suspect, and public confidence cannot long be main-

tained if important judicial decisions are made behind

closed doors. United States v. Cianfrani, 573 F.2d 835,

851 (3d Cir. 1978).

For this reason, the appearance of impropriety in

the administration of criminal justice is as destructive

as its reality. For, the tenuous fabric of public confidence

in our criminal justice system will surely unravel when

those cases which receive the most public attention are

closed to public and press scrutiny precisely because of

the public notoriety and, perhaps, public controversy

surrounding the proceedings. Indeed, the bitter irony of

any test which exalts closure at the expense of openness

is that those criminal proceedings most in need of

scrutiny to maintain the confidence of the public in the

administration of criminal justice, such as the instant

case involving the alleged homosexual rape of a teenager

by a state legislator, will be shrouded in secrecy.

That the public’s right of access extends to pretrial

suppression hearings is clear not only from the language

08a

Appendix.

of Article 1, Section 11,11 but from a consideration of

the societal interests sought to be protected as well. A

suppression hearing differs significantly from those inci-

dental or collateral discussions held outside the presence

of the jury, such as sidebar conferences on points of law

or conferences in chambers, from which the public tradi-

tionally has been excluded. United States v. Cianfrani,

573 F.2d 835, 849 (3d Cir. 1978), citing, Bennett v.

Rundle 419 F.2d 599, 605 (3d Cir. 1969). A suppression

hearing has “more of the characteristics of a testimonial

hearing, which is the essence of a trial proceeding.” Ben-

nett v. Rundle, 419 F.2d 599, 605 (3d Cir. 1969). More-

over, the pretrial suppression hearing often is critical

since it may result in either a dismissal of the charges

or a plea of guilty. Gannett Co. v. DePasquale, 443 U.S.

368, 99 S.Ct. 2898, 2933, 61 L.Ed. 608 (1978) (Blackmun,

J., concurring in part and dissenting in part). See United

States v. Cianfrani, 573 F.2d 835, 848-51 (3d Cir. 1972) ;

United States v. Clark, 475 F.2d 240, 246-47 (2d Cir.

1973). As Mr. Justice Powell noted in Gannett:

In our criminal justice system as it has developed,

suppression hearings often are as important as the

11. The Constitution of Pennsylvania should be

interpreted in the light of ordinary language. Peoples

Bridge Co. of Harrisburg v. Shroyer, 355 Pa. 599, 50 A.2d

499 (1947). In construing the language of a constitu-

tional provision, the words used, unless they are techni-

cal, are to be interpreted in their popular, natural, and

ordinary meaning. Commonwealth v. Harmon, 469 Pa.

490, 366 A.2d 895 (1976); Commonwealth v. Hiltner,

307 Pa. 3438, 161 A. 323 (1932). Furthermore, the courts

have no right to disregard, erode or distort any provision

of the Constitution, especially where its plain language

makes its meaning unmistakably clear. Commonwenlth

v. Russo, 388 Pa. 462, 131 A.2d 83 (1957).

4

39a

Appendix.

trial which may follow. The government’s case may

turn upon the confession of other evidence that the

defendant seeks to suppress, and the trial court’s

ruling on such evidence may determine the outcome

of the case. Indeed, in this case there was no trial as,

following the suppression hearing, plea bargaining

occurred that resulted in guilty pleas. In view of the

special significance of a suppression hearing, the

public’s interest in this proceeding often is compar-

able to its interest in the trial itself.

99 S.Ct. at 2914 n.1 (Powell, J., concurring).

Of equal importance, suppression hearings typically

involve objections to the propriety of police or prosecu-

torial conduct. In fact, the suppression hearing may be

the only point in the trial process at which the conduct

of law enforcement officers is at issue. United States v.

Clark, 475 F.2d 240, 247 (2d Cir. 1973). Such conduct

frequently occurs outside the public view, Bennett v.

Rundle, 419 F.2d 599, 606 (3d Cir. 1969) ; therefore, bene-

ficial public scrutiny may never take place if not at the

hearing itself. Jd. See also Gannett Co. v. DePasquale, 99

S.Ct. at 2930, 2934 (Blackmun, J., concurring in part and

dissenting in part) .12 Our strong constitutional require-

ment of public access to judicial proceedings emphasizes

that publicity is “of critical importance to our type of

12. The modern suppression hearing was unknown

at common law where objections to the admissibility

of evidence were made in open court during trial, and

“Tt]here is no federal requirement that states conduct

suppression hearings prior to trial.” Gannett Co. v.

DePasquale, 99 S.Ct. 2898, 2935 (1978) (Blackmun, J.,

concurring in part and dissenting in part). See Pinto v.

“anert 389 U.S. 31, 32, 88 S.Ct. 192, 193, 19 L.Ed.2d 31

(1967).

40a

Appendix.

government in which the citizenry is the final judge of

the proper conduct of public business.” Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328

(1975).

Again, as Mr. Justice Stewart acknowledged in Gan-

nett, although “‘[n]ot many common-law rules have been

elevated to the status of constitutional rights,” 99 S.Ct.,

at 2908, the public’s right of access to judicial proceed-

ings has been accorded such status in Pennsylvania since

1682. Id. at 2909. See 1 B. Schwartz, The Bill of Rights:

A Documentary History 271 (1971). Therefore, in order

to protect the societal interests involved, and because of

the clear constitutional language, I would hold that the

public’s right of access to pretrial suppression hearings

is guaranteed by Article 1, Section 11 of the Pennsyl-

vania Constitution.13

lll. A CAREFUL BALANCING IS NECESSARY

FOR ANY LIMITATION ON ACCESS

The policies underlying the Pennsylvania Constitu-

tion’s guarantee that “[a]ll courts shall be open” require

that there be a strong presumption in favor of public

13. See Commonwealth v. Klinger, 75 D. & C.2d

664 (1976), in which the court held that since the Penn-

sylvania Constitution mandates that “all courts shall

be open,” representatives of the media could not be ex-

cluded from a preliminary hearing on a charge of murder

in order to prevent publicity which may be prejudicial

to a defendant’s case. Id. at 664-65. The court, however,

did note that an exception might be made if the court

were confronted with unique and compelling evidence of

a clear and present danger of uncorrectable prejudice to

oa right of the defendant to secure a fair trial. Jd. at

5.

41a

Appendix.

access to adjudicative judicial proceedings. This pre-

sumption, however, does not require that all proceedings

be held in open court when to do so would deprive a de-

fendant of a fair trial. The right of access is not absolute,

and when faced with a demonstrable conflict between the

public’s right of access and a defendant’s ability to ob-

tain a fair trial, the rights of the criminal defendant

must prevail. Any other balance would be unjust and

would conflict with both the United States and Pennsyl-

vania Constitutions. U.S.Const. amend. VI; Pa.Const.

art. 1, § 9. See Lucas v. Michigan, 420 F.2d 259 (6th Cir.

1970) ; Sudekum v. Hayes, 414 F.2d 41 (6th Cir. 1969).

Although the right of access under Article 1, Section

11 does not absolutely prevent a trial court from order-

ing closure in those few exceptional cases where, on bal-

ance, such extraordinary relief is necessary to preserve

a defendant’s right to a fair trial, the trial court must

begin with the presumption that the judicial proceedings

will be open. An accused who seeks closure must then

establish that any limitation of the right of access is

“strictly and inescapably necessary” in order to protect

the fair trial guarantee. Gannett Co. v. DePasquale, 99

S.Ct. at 2936 (Blackmun, J., concurring in part and dis-

senting in part). See Bennett v. Rundle, 419 F.2d 599,

607 (3rd Cir. 1969). This standard will protect the pub-

lic’s right of access without unnecessarily impairing the

rights of the accused. For the future guidance of trial

courts in dealing with the recurring confrontation be-

tween these vital constitutional guarantees, I would

adopt the approach essentially defined by Mr. Justice

Blackmun in Gannett and hold that in meeting this ad-

mittedly heavy burden, the criminal defendant who seeks

closure must, at a minimum, establish the following:

42a

Appendix.

First, that there is a substantial probability that ir-

reparable damage to his fair trial right will result from

conducting the proceeding in public. Such a showing will

necessarily involve evidence of the nature and extent of

publicity prior to the closure motion and the impact of

that publicity on the jury pool. In this regard, the trial

court should be aware of the fact that ‘“‘[i]n the over-

whelming majority of criminal trials, pretrial publicity

presents few unmanageable threats” to the right of the

accused to a fair trial. Nebraska Press Association v.

Stuart, 427 U.S. 539, 551, 96 S.Ct. 2791, 2799, 49 L.Ed.2d

683 (1976). A high level of publicity is not necessarily

inconsistent with the ability of a defendant to obtain a

fair trial when the publicity has been largely factual in

nature, Murphy v. Florida, 421 U.S. 794, 802, 95 S.Ct.

2031, 2037, 44 L.Ed.2d 589 (1975); Beck v. Washington,

369 U.S. 541, 542-45 & 557-58, 82 S.Ct. 955, 956-958, 958-

959, 8 L.Ed.2d 98 (1962), or when it abated some time

prior to trial. See Stroble v. California, 343 U.S. 181, 191-

94, 72 S.Ct. 599, 604-606, 96 L.Ed 872 (1952). In those

cases where a court has found publicity sufficiently

prejudicial as to warrant reversal on due process

grounds, the publicity went far beyond the normal

bounds of coverage. See, e. g., Sheppard v. Maxwell, 384

U.S. 333, 86 S. Ct. 1507, 16 L.Ed.2d 600 (1966) ; Estes v.

Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) ;

Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10

L.Ed.2d 663 (1963) ; Irvin v. Dowd, 366 U.S. 717, 81,S.Ct.

1639, 6 L.Ed.2d 751 (1961). See also Nebraska Press As-

sociation v. Stuart, 427 U.S. 539, 551-56, 96 S.Ct. 2791,

2799-2801, 49 L.Ed.2d 683 (1976); Murphy v. Florida,

421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d

589 (1975). But “[c]ases such as these are relatively

rare,’ Nebraska Press Association v. Stuart, 427 US.

—

43a

Appendix.

539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683 (1976), and

the decisions of the Supreme Court, “[t]aken together,

_,. demonstrate that pretrial publicity—even pervasive,

adverse publicity—does not inevitably lead to an unfair

trial.” Id.

Second, a criminal defendant seeking closure must

establish that there is a substantial probability that

alternatives to closure will not adequately protect his

right to a fair trial. Such a showing will necessarily in-

volve consideration of the available alternatives, includ-

ing continuance, severance, change of venue, change of

venire,14 voir dire, peremptory challenges, sequestration,

and admonition of the jury. See American Bar Associa-

tion Standards Relating to the Administration of Crim-

inal Justice, Fair Trial and Free Press, Standard 8-3.2

at 16 (Approved Draft 1978). See also Nebraska Press

Association v. Stuart, 427 U.S. 539, 562-65, 96 S.Ct. 2791,

2804-2806, 49 L.Ed.2d 683 (1976) ; Sheppard v. Maxwell,

384 U.S. 333, 354 n.9 & 358-62, 86 S.Ct. 1501, 1518 n.9, and

1519-1522, 16 L.Ed.2d 600 (1966).

(A) General rule.—If, upon motion and follow-

ing a hearing, the court of common pleas determines

that a fair and impartial jury cannot be impaneled

in the county where the criminal complaint is filed,

as an alternative to issuing an order for a change of

venue the court may direct that jurors be impaneled

from another county. The order for impanelment of

a jury from another county shall be certified forth-

with to the Supreme Court which shall designate

and notify the county of impanelment.

14. On April 1, 1980, 42 Pa.C.S.A. § 8702 became

effective and provides, in part:

§ 8702. Impaneling jury from another county

44a

Appendix.

Third, the accused must demonstrate that there is a

substantial probability that closure will be effective in

protecting against the perceived harm. Philadelphia

Newspapers, Inc. v. Jerome, 478 Pa. 484, 503, 387 A.2d

425, 434-35 (1978). For example, where significant preju-

dicial information already has been published, the justi-

fication for closure dissipates. Moreover, the fact that a

pretrial suppression hearing is closed may, by itself,

result in prejudice to a defendant similar to the bias

which sometimes results from a criminal defendant’s

failure to testify on his own behalf. See generally Com-

monwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237

(1976) ; Commonwealth v. Lowery, 440 Pa. 361, 269 A.2d

724 (1970).

Fourth, the defendant must establish the extent to

which closure is necessary to ensure a fair trial. United

States v. Cianfrani, 573 F.2d 835, 854 (3d Cir. 1978) ;

United States v. Ruiz-Estrella, 481 F.2d 723, 725 (2d Cir.

1973).15 Thus, only that portion of the public may be

excluded from only that portion of the proceeding that

the court finds to be strictly and inescapably necessary

15. Even a narrowly drawn closure order, however,

may not adequately protect the public’s right of access.

Delayed access to the transcript of a closed proceeding,

for example, rarely will be an adequate substitute for

attendance at the hearing itself. The inherent delay may

defeat the purpose of a public proceeding because later

events may diminish the public’s interest. See Bridges v.

California, 314 U.S. 252, 268, 62 S.Ct. 190, 196, 86 L.Ed.

192 (1941). “As a practical matter ... 527 the element

of time is not unimportant if press coverage is to fulfill

its traditional function of bringing news to the public

promptly.” Nebraska Press Association v. Stuart, 427

U.S. 539, 561, 86 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976).

45a

Appendix.

to protect the interests asserted by the defendant.1°6

In light of the societal interests which are advanced

by open judicial proceedings, the critical role of the or-

ganized press—the newspapers and other established

news media—in our judicial system must be considered

in evaluating the need for closure. See generally Stewart,

P., “Or of the Press,” 26 Hastings L.J. 631 (1975). Judi-

cial proceedings by their very nature are of interest to

those concerned with the administration of government,

and a “public benefit” is performed by the accurate re-

porting of judicial proceedings by the media. Cow Broad-

casting Co. v. Cohn, 420 U.S. 469, 496, 95 S.Ct. 1029, 1046,

43 L.Ed.2d 328 (1975). For that reason, truthful reports

of public judicial proceedings have been afforded special

protection against subsequent sanctions, either criminal

or civil. Jd. at 492-93, 95 S.Ct. 1029, at 1044-1045. See also

Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254,

91 L.Ed 1546 (1947). Even when the Supreme Court has

reversed a criminal conviction because of prejudicial

publicity, the critically important role of the press in our

judicial system has been reaffirmed:

A responsible press has always been regarded as the

handmaiden of effective judicial administration,

especially in the criminal field. Its function in this

regard is documented by an impressive record of

16. For example, it may be possible in many cases

to determine the admissibility of evidence without dis-

closing the substance thereof. Issues often concern not

so much the contents of a confession or the nature

of evidence seized, but the circumstances under which

the prosecution obtained the material. Gannett Co. v.

DePasquale, 99 S.Ct. 2898, 2937 (1978) (Blackmun, J.,

concurring in part and dissenting in part); United

States v. Cianfrani, 573 F.2d 835, 858 (3d Cir. 1978).

——

46a

Appendix.

service over several centuries. The press does not

simply publish information about trials but guards

against the miscarriage of justice by subjecting the

police, prosecutors and judicial processes to ex-

tensive public scrutiny and criticism,

Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507,

1515, 16 L.Ed.2d 600 (1966). Accord Nebraska Press As-

sociation v. Stuart, 427 U.S. 539, 559-60, 96 S.Ct. 2791,

2802-2803, 49 L.Ed.2d 683 (1976). Without public crim-

inal trial proceedings, the conduct and misconduct of

judges as well as police and prosecutors could be shroud-

ed in secrecy and the ordinary citizen would be unable

to scrutinize and evaluate the performance of his ap-

pointed and elected officials. Therefore, whether the

foundation for this fundamental right of access is the

First Amendment to the United States Constitution, the

Sixth Amendment to the United States Constitution or

Section 11 of Article 1 of the Pennsylvania Constitution,

no one can deny the necessity for an ever-vigilant press

to disclose misconduct, corruption and ineptitude in the

administration of criminal justice.

Finally, if the right of access is to have any real

meaning, representatives of the press and public must be

given a reasonable opportunity to be heard on the ques-

tion of this exclusion from the courtroom.!* Upon timely

17. Because of the unique position which the press

occupies in our society, special consideration must be

given to its role in evaluating the need for closure. This

special consideration derives not because the press en-

joys a special status, but because “[i]n seeking out

the news, the press...acts as an agent of the public

at large,” each individual member of which cannot ob-

tain for himself ‘“‘the information needed for the intelli-

gent discharge of his political responsibilities.” Saxbe

47a

Appendix.

motion, it is incumbent upon the trial court to afford the

opportunity for those representatives of the press and

public present in the courtroom to move to intervene and

be heard on the issue of whether the closure of the pro-

ceeding is strictly and inescapably necessary. At such

hearing, it is the burden of the party requesting closure

to make the requisite showing of prejudice.

As a critical part of the hearing procedure, the trial

court must state on the record the findings it considered

in balancing the alleged need for closure against the con-

stitutionally protected right of access. This procedure

was not followed by the trial court in this case. The rec-

ord before us discloses nothing more than that the de-

fendant sought closure, the prosecution did not object,

and the trial court, without any balancing of the com-

peting constitutionally protective rights, simply

agreed.18

The foregoing standards articulate a burden of

proof significantly higher than that adopted in this

Court’s prior decisions. Philadelphia Newspapers, Inc. v.

Jerome, 478 Pa. 484, 387 A.2d 425 (1978), was the com-

bined appeal of three cases in which writs of mandamus

and prohibition were sought to end the closure of pre-

v. Washington Post Co., 417 U.S. 843, 863, 94 S.Ct.

2811, 2821, 41 L.Ed.2d 514 (1974) (Powell, J., dissent-

ing). Cf. First National Bank of Boston v. Bellotti,

435 U.S. 765, 776-78, 98 S.Ct. 1407, 1415-1416, 55 L.Ed.2d

707 (1978).

18. It should be noted that the trial court’s proce-

dure in this case failed to satisfy not only the standards

adopted in Gannett by Messrs, Justice Blackmun, Bren-

nan, White and Marshall, but those advocated by Mr.

Justice Powell as well. See 99 S.Ct. at 2916 (Powell, J.,

concurring).

48a

Appendix.

trial hearings. Jd. at 489-90, 387 A.2d at 427-28. Therein,

this Court upheld the constitutionality of Rules 323 (f) -

(g), 326 and 327 of the Pennsylvania Rules of Criminal

Procedure which permit a trial court, at the request of

the defendant, to enter an order limiting public access

to a pretrial suppression hearing. While acknowledging

that the United States Supreme Court had suggested

that the public’s interest in open criminal proceedings is

protected by the Sixth Amendment, /d. at 501-02, 387

A.2d at 433-34, citing, Singer v. United States, 380 U.S.

24, 85 S.Ct. 783, 13 L.Ed.24 $30 (1965) (dictum), this

Court stated that the Supreme Court had not held that

either the First or Sixth Amendment creates a consti-

tutionally protected right of access to the courts. 478 Pa.

at 502, 387 A.2d at 433. Thus, this Court recognized only

a “strong interest” on the part of the public with respect

to access to judicial proceedings.

Nevertheless, this Court held that any limitation on

access should be carefully drawn to comply with the fol-

lowing standards: (1) the right of access should not be

limited except for the compelling state obligation to pro-

tect the constitutional rights of criminal defendants and

achieve the fair, orderly, prompt and final disposition of

criminal proceedings; (2) the right of access should not

be limited unless the threat posed to the protected inter-

est is serious; (3) the right of access should not be lim-

ited unless the limitations imposed effectively limit the

threatened harm and are no broader in scope than nec-

essary to do so. Jd. at 503-04, 387 A.2d at 434-35. In the

instant case, the lower court failed to follow even these

guidelines, and reversal of the closure order would be

49a

Appendiz.

appropriate for that reason.!¥

Our decision in Jerome, however, preceded the Su-

preme Court’s decision in Gannett, and must be reevalu-

ated in light of that decision.2° More importantly, the

effect of Article 1, Section 11 of the Pennsylvania Con-

stitution was not considered in Jerome, and the stricter

standards set forth in this opinion appear to be more

appropriately suited to protect the public access right

envisioned by that constitutional guarantee.

IV. CONCLUSION

It has long been held that “justice cannot survive

behind walls of silence.” Sheppard v. Maxwell, 384 U.S.

333, 349, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966). This

maxim is true even when those walls are erected at the

19. Defendant Hayes made no effort to demon-

strate that his right to a fair trial would be prejudiced

by an open suppression hearing. Moreover, the trial

court failed to balance the defendant’s right to a fair

trial against the constitutionally protected right of

public access and failed to consider the alternatives to

closure that were available.

20. Although the origin and scope of the public’s

federal constitutional right of access to pretrial sup-

pression hearings remains unsettled, a majority of the

Supreme Court had now expressly recognized such a

right based solely on the United States Constitution.

In Jerome, this Court premised its decision, at least in

part, on the need to avoid delayed trials and retrials

and the concomitant expenditure of public funds and

judicial resources. 478 Pa. at 507, 387 A.2d at 436. While

this objective is a salutary one in a context where the

constitutional right of the public and the press is not

present, it cannot, as Gannett demonstrates, be used to

tip the scales in favor of closing a pretrial suppression

hearing.

50a

Appendix.

behest of a criminal defendant. The confluence uf the

need to maintain public confidence in the integrity of the

administration of criminal justice, the need to expose

misconduct or ineptitude in the criminal justice process,

and the right of the public to be informed of the alleged

crimes of accused persons, requires that pretrial sup-

pression hearings be shrouded in secrecy only when it is

strictly and inescapably necessary to do so in order to

preserve the right of an accused to a fair trial.

A democratic society ultimately can survive only so

long as its leaders and institutions have the consent of

its citizens. Secret judicial proceedings would be a sig-

nificant first step in undermining that consent.

I would hold that the public and the press have a

right of access to pretrial suppression hearings protected

by both the United States and Pennsylvania Constitu-

tions, reverse the Order of the trial court?! and remand

for a hearing22 in accordance with the standards set

forth in this opinion.?4

21. Implicit in the conclusions which I have

reached is a finding that Rules 323(f)-(g), 326 and 327

of the Pennsylvania Rules of Criminal Procedure must

be read to include a requirement for evidentiary hear-

ings as described in this opinion. Otherwise, those rules,

which facially permit closure of a judicial proceeding

simply upon motion by the defendant, would be uncon-

stitutional.

22. The matter should be remanded to the trial

court for an evidentiary hearing to determine whether

any restriction on access is strictly and inescapably

necessary in order to protect defendant’s right to a

fair trial. In making that determination, all available

alternatives to closure should be carefully and expressly

considered.

23. The accused public official in this case asserted

at oral argument that an open suppression hearing

— |

Dla

Appendix.

RoBERT, Justice, dissenting.

Only two years ago this Court, presented with pre-

cisely the same question now before us, denied by a

unanimous vote a petition for extraordinary review chal-

lenging those provisions of our Rules of Criminal Pro-

cedure which allow the trial court to close pretrial sup-

pression of evidence hearings on a showing of a serious

threat to the fair trial rights of an accused. Philadelphia

Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425

(1978). On appeal the United States Supreme Court

unanimously dismissed for want of a substantial federal

question, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877

(1979), a disposition on the merits, see Hicks v. M iranda,

422 U.S. 332, 95 S.Ct. 2281, 95 S.Ct. 2281, 45 L.Ed.2d 223

(1975). On the same day, the United States Supreme

Court upheld the closure of a pretrial suppression of

evidence hearing against the challenge that the sixth and

fourteenth amendments insure the public and the media

a right of attendance. Gannett Co., Inc. v. DePasquale,

443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

Whatever then may be said about the public inter-

ests involved in the resolution of the merits of this issue,

surely any “need for clear and decisive judicial direc-

tion,” Opinion of Mr. Justice Nix, ante at ——, is not

served by the type of ad hoc determination indulged in

by the Court today. This Court has occasionally been

required to modify its views in light of contrary pro-

nouncements by the United States Supreme Court, see

e. g., Ferri v. Ackerman, —— U.S. ——, 100 S.Ct. 402,

62 L.Ed.2d 355 (1979) rev’g 483 Pa. 90, 394 A.2d 553

(1978). But I cannot discover any prior instance in

would jeopardize his right of privacy. I join the Opinion

of the Court in rejecting this claim.

52a

Appendix.

which this Court has changed its views because the

United States Supreme Court has declared them correct.

It must regrettably be concluded that today’s determina-

tion is based on something less than neutral principles of

law or a need for ‘“‘clear and decisive judicial direction,”

and is instead based on perhaps little more than the pur-

suit of media approval. Today’s decision represents a

raw exercise of judicial power which must necessarily

unsettle all those who have trusted in the process of

principled judicial decisionmaking.

The exercise of extracirdinary jurisdiction in this

case is plainly inappropriate. This is so not only because

this Court has only recently unanimously rejected the

appropriateness of such an intrusion. Today’s exercise

of extraordinary jurisdiction is particularly irrespons-

ible given that those voting to exercise that jurisdiction

cannot agree on what, if any, error the trial court in this

case has committed.

Mr. Justice Nix votes to exercise extraordinary

jurisdiction only to offer his advice that the trial court

should consider, as an alternative to closure, the novel

procedure of selecting and sequestering a jury before the

suppression hearing and then permitting the hearing to

be open to the media. But Mr. Justice Nix does not sug-

gest that our guidelines established in Jerome’s permit-

ting closure on a showing of a serious threat to the fair

trial rights of an accused are no longer controlling. Nor

does he suggest that the trial court, on reconsideration,

may not reinstate its order of closure. Remarkably, then,

Mr. Justice Nix votes to exercise extraordinary jurisdic-

tion merely to ask the trial court to consider a proposal

which the record establishes the trial court has already

considered and properly rejected.

038

Appendix.

Mr. Justice Kauffman also votes to exercise extra-

ordinary jurisdiction so that he may take the opportun-

ity to express his views on the question of closing pre-

trial suppression hearings. Unlike Mr. Justice Nix, how-

ever, Mr. Justice Kauffman would expressly limit the

permissibility of an order of closure to cases of strict

and inescapable necessity. This view, accepted by no

other member of this Court, is plainly contrary to this

Court’s unanimous decision in Jerome. Although Mr.

Justice Kauffman asserts that he has discovered this

principle from a plain reading of the Pennsylvania Con-

stitution, it is obvious that this view represents little

more than a personal preference for media prerogatives

and is not based on any adequate consideration of the

constitutionally guaranteed fair trial rights of citizens

involved in our criminal justice system. It must be em-

phasized, however, that Mr. Justice Kauffman, like Mr.

Justice Nix, does not deny the possibility that closure

of the suppression hearing may have been and may still

be the appropriate procedure in this case.

Finally, Mr. Justice Larsen and Mr. Justice Flaherty

also vote to exercise extraordinary jurisdiction so that

they may also now express their views on the question

of closure. In contrast with Mr. Justice Nix and Mr. Jus-

tice Kauffman, however, Mr. Justice Larsen and Mr. Jus-

tice Flaherty would hold, as an absolute rule, that all

criminal proceedings should be open to the public and

the media. These two Justices, in refusing to acknowl-

edge the possibility of any limiting considerations, thus

adopt a position not seriously advocated by any prior

caselaw or scholarship and, indeed, a position which the

media itself has never purported in advance. This posi-

tion, if accepted, would plainly deny to those citizens

involved in cases widespread publicity rights expressly

o4a

Appendix.

guaranteed by both the federal and state Constitutions.

Thus, in complete disregard of the defendant’s right

to a speedy trial and the public interest in the prompt

resolution of criminal proceedings, a majority of this

Court has interrupted and delayed the present criminal

case in order to do little more than create a forum for

the expression of the separate and inconsistent views of

its members. This unnecessary tampering with our crim-

inal justice system is a clear misuse of the judicial

power. I dissent and would deny this petition for extra-

ordinary review.

THE NARROW ISSUE PRESENTED HAS

ALREADY BEEN DECIDED BY THIS COURT

It is important to make clear what issues are not in-

volved in this case. Not presented here is any question

concerning the propriety of closing from the public or

the media the trial of any criminal case.! The order

which we are asked to review authorizes only the closure

of a pretrial suppression proceeding.”

1. The media litigants in this case make no claim

that their right of access is greater than that of the

public. See Pell v. Procunier, 417 U.S. 817, 833-35, 94

S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974) ; compare Gan-

nett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898,

2914-15, 61 L.Ed.2d 608 (1979) (Powell, J., concurring) ;

Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct.

2811, 2815, 41 L.Ed.2d 514 (1974) (Powell, J., dis-

senting).

2. The permissibility of closing the trial of a

criminal case, in so far as the question is controlled

by the federal Constitution, is raised by a case presently

pending before the United States Supreme Court, Rich-

mond Newspapers, Inc. v. Virginia, Va. juris. post-

poned,—U.S.—, 100 S.Ct. 204, 62 L.Ed.2d 132 (1979).

Jerome considered only closure, pursuant to Pa.

R.Crim.P. 323(f), of a pretrial suppression hearing.

—

55a

Appendix.

Not presented here is any question concerning the

permissibility of an order preventing the media from

publishing any material or information in their posses-

sion or from writing about whatever they please. The

order authorizing closure of the pretrial suppression

proceeding is not a prior restraint on the media. Gan-

nett, supra 443 U.S. at 393 n. 25, 99 S.Ct. at 2912; id at

398-399, 99 S.Ct. at 2915 (Powell, J., concurring) ; id at

411-412, 99 S.Ct. at 2922 (Blackmun, J., dissenting) ;

Jerome, supra 478 Pa. at 499-500, 387 A.2d at 432-33;

compare Nebraska Press Ass’n v. Stuart, 427 U.S. 539,

96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

Also not presented here is the permissibility of

permanently withdrawing from the public view or from

the media any part of any judicial proceeding. It is clear

that our criminal procedural rules require, in the event

that a pretrial suppression hearing is closed, that a

transcript of the hearing be made and that the tran-

script be made available when the dangers of public

disclosure have abated. Pa.R.Crim.P. 323(g).

Finally, not presented here is any objection by the

defendant to closure of the hearing. Our rules clearly

permit closure only on the defendant’s own motion.’ In

3. Both the federal Constitution, Amends. VI &

XIV and our state Constitution, art. I, § 9, insure the

“accused” a “public trial.” This case does not require

consideration of whether these constitutional guaran-

tees provide a defendant an absolute right to public

pretrial proceedings.

On the other hand, Jerome, in allowing a trial judge

to close pretrial suppressing hearings only when the

defendant’s constitutional right to a fair trial and the

public’s interest in orderly prompt criminal proceedings

56a

Appendix.

the present case the defendant’s motion for closure was

joined by the Commonwealth, which has filed a brief in

this Court in support of the motion.

The narrow substantive question presented by this

case is the propriety, on motion of the defendant and the

prosecution, of temporarily excluding the press from a

pretrial suppression proceeding in a criminal case when

the trial judge is satisfied that public disclosure of the

information to be adduced at the hearing will likely

prejudice the defendant’s rights at his subsequent pub-

lic jury trial. Crucially, however, the issue today is even

narrower, for we are required to consider the need for

addressing the question presented on a petition for

extraordinary review.

This is precisely the issue we decided in Jerome,

where this Court unanimously dismissed such a petition

because there was no showing that any clear rights of

the media petitioners in that case had been violated.

Today’s petitioners fail to demonstrate any basis on

which to distinguish this case from Jerome, and they do

not present any reason why the rights they claim cannot

be adequately protected by the ordinary means of ap-

pellate review. Accordingly I can see absolutely no rea-

son why this petition should not be similarly dismissed.

Because, however, of the unfortunate failure of a ma-

are seriously threatened, 478 Pa. at 503, 387 A.2d at

434-35, necessarily forecloses the argument that a de-

fendant has an absolute right to waive public pretrial

suppression proceedings and insist that they be closed.

Jerome clearly acknowledged the general interest in

open judicial proceedings, id. at 501, 513, 387 A.2d at

434, 439, and required the trial court to exercise sound

discretion in resolving the question of pretrial suppres-

sion closure.

57a

Appendix.

jority of my Brethren to be guided by recent binding

decisional law, it is apparently necessary to restate and

explain controlling principles.

THE CONSTITUTIONAL RIGHT TO A FAIR TRIAL

REQUIRES THAT THE JURY NOT CONSIDER

EVIDENCE INADMISSIBLE AT TRIAL

Both the federal Constitution and our state Consti-

tution guarantee to the criminally accused a fair trial

by an impartial jury. U.S.Const., Amends. VI & XIV; Pa.

Const. art. I, § 9. And minimum standards of due process

require that the “impartial jury” will base its verdict

only on evidence properly received in open court, and

not from outside sources. Sheppard v. Maxwell, 384 U.S.

333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Turner v.

Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424

(1965) ; Irwin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6

L.Ed.2d 751 (1961); Commonwealth v. Bruno, 466 Pa.

245, 352 A.2d 40 (1976) ; Commonwealth v. Pierce, 451

Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct.

164, 28 L.Ed.2d 124 (1973) ; Commonwealth v. Stewart,

449 Pa. 50, 295 A.2d 303 (1972), cert. denied, 417 U.S.

949, 93 S.Ct. 3078, 41 L.Ed.2d 670 (1974). “Legal trials

are not like elections, to be won through the use of the

meeting-hall, the radio, and the newspaper.” Bridges v.

State of California, 314 U.S. 252, 271, 62 S.Ct. 190, 197,

86 L.Ed. 192 (1941). For as Justice Holmes observed

many years ago:

“The theory of our system is that the conclusions to

be reached in a case will be induced only by evidence

and argument in open court, and not by any outside

influence, whether of private talk or public print.”

58a

Appendix.

Patterson v. State of Colorado ex rel. Attorney General,

205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907).

It is now well-established that evidence obtained in

violation of a defendant’s constitutional rights is not

admissible at the defendant’s trial. Mapp v. Ohio, 367

U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). To pro-

tect this basic right the Constitution requires that the

trial judge, outside the hearing of the jury, must deter-

mine if challenged evidence is the product of constitu-

tionally impermissible government conduct and so must

be excluded. Jackson v. Denno, 378, U.S. 368, 84 S.Ct.

1774, 12 L.Ed.2d 908 (1964). Only if the judge is satis-

fied that the evidence is admissible may the jury then

hear it.

In response to this constitutional obligation to allow

a defendant the opportunity, outside the hearing of the

jury, to test the admissibility of the evidence obtained

by the Commonwealth, our Rules of Criminal Procedure

provide the defendant a pretrial hearing. Pa.R.Crim.P.

323. Generally these hearings are open to the public. Yet

in the ordinary case testimony taken at such a suppres-

sion hearing will receive little if any public attention,

4. The Supreme Court has squarely rejected any

system which permits the jury to hear such evidence

and relies on cautionary instructions to the jurors that

they must disregard incriminating evidence they believe

impermissibly obtained. Clearly it is unrealistic to be-

lieve that, having heard such impermissible evidence,

jurors will be able to exclude it from their minds. “The

naive assumption that prejudicial effects can be over-

come by instructions to the jury, ...all practicing law-

yers know to be unmitigated fiction.” Krulewitch v.

United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93

L.Ed. 790 (1949) (Jackson, J., concurring) quoted in

Jackson, supra 378 U.S. at 338 n. 15, 84 S.Ct. at 1787.

39a

Appendix.

and those jurors eventually sworn to judge a defendant’s

case will neither have heard any of the evidence before

nor be aware if any evidence has been excluded.

This is not so, however, in cases of high publicity. In

such cases, should there be a suppression hearing, any

evidence or testimony produced at the hearing will likely

reach the general public, including potential jurors.

Even in the event that all the challenged evidence is

found admissible there is always the problem that poten-

tial jurors will prematurely become aware of incrimi-

nating evidence without the due process safeguards

afforded by trial procedures or by cross-examination.

In the event, however, that any evidence is suppressed,

publicity of the hearing will in all probability inform

potential jurors of evidence which, by definition, the

courts have found that jurors should not hear. Addi-

tionally, should the defendant testify at his suppression

hearing it is likely that media coverage will report this

testimony. Yet it is established that, on the defendant’s

objection, the Constitution forbids the use of this testi-

mony at trial. Simmons v. United States, 390 U.S. 377,

88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

In cases receiving substantial media attention the

possibility that a significant portion of the jury pool will

become aware of inadmissible evidence is not specula-

tive or imaginary. Indeed, courts have not infrequently

been required to reverse convictions when it has ap-

peared that jurors have been exposed to prejudicial

pretrial publicity. E. g., Sheppard v. Maxwell, supra;

Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d

543 (1965) ; Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct.

1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, supra;

Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224

60a

Appendix.

(1977) ; Commonwealth v. Pierce, supra. Thus recog-

nizing in these special cases the potential for unfairness

to citizens involved in the criminal process and the

potential for disruption of the orderly administration

of our criminal justice system, our Rules of Criminal

Procedure permit a trial judge, on motion of the de-

fendant, to exclude the media from a pretrial suppres-

sion hearing. Pa.R.Crim.P. 323 (f) .5

JEROME PROPERLY PERMITS ORDERS CLOSING

PRE-TRIAL SUPPRESSION HEARINGS BASED

ON THE EXISTENCE OF A SERIOUS THREAT

TO A FAIR TRIAL

In Philadelphia Newspapers, Inc. v. Jerome this

Court considered challenges to the permissibility of

trial court orders under this section of our Rules. There

this Court was asked to assume extraordinary jurisdic-

tion to review orders by three trial judges closing three

pre-trial suppression hearings. Each case involved a

5. Rule 323(f) provides:

““(f) The hearing, either before or at trial, shall

be held in open court unless defendant moves that

it be held in the presence of only the defendant,

counsel for the parties, court officers and necessary

witnesses. If the hearing is held after the jury has

been sworn, it shall be held outside the hearing and

presence of the jury. In all cases the court may

make such order concerning publicity of the pro-

ee as it deems appropriate under Rules 326

and 327.”

Rule 326 grants the trial court authority to issue orders

governing witnesses and parties and concerning other

procedures in widely-publicized or sensational cases.

Rule 327 regulates public disclosure by court personnel

in pending or imminent criminal proceedings. The pres-

ent case presents no question under these rules.

6la

Appendix.

serious crime and was an event of high-publicity. One

of these three cases, Commonwealth v. Boyle, was the

nationally reported murder trial of former United Mine

Workers President W. A. “Tony” Boyle.

Jerome began by carefully reviewing the purposes

served by our Rules of Criminal Procedure. This re-

view started with the recognition that the Rules “are

intended to provide for the just determination of every

criminal proceedings,” and “to secure simplicity in pro-

cedure, fairness in administration and the elimination

of unjustified expense and delay.” Pa.R.Crim.P. 2. Our

unanimous Court clearly explained the genuine public

advantage to be served by the use, in an appropriate

case, of our Rules concerning closure:

“These Rules are designed to promote the clear

public interest in having persons accused of crime

tried fairly, expeditiously, economically, and only

once. If prejudicial publicity occurs, the trial court

may have to continue the case, change venue, resort

to extensive voir dire to assure that the attitudes

of jurors have not been influenced by disclosure,

or use the costly and inconvenient device of jury

sequestration. See Simmons v. United States, 390

U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) ;

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12

L.Ed.2d 908 (1946). If the trial court takes in-

adequate remedial measures, an appellate court

would be compelled to reverse a conviction, starting

the trial process anew.

. * * * +

Prejudicial publicity from pre-trial suppression

hearings injures the Commonwealth as well as the

accused. Prejudicial disclosures may taint a trial

62a

Appendix.

or require a trial court to delay trial until publicity

subsides. Neither delayed trials nor retrials pre-

sent as favorable opportunities for establishing

truth as timely first trials. By precluding prejudicial

disclosures arising from pre-trial suppression hear-

ings, the Rules promote the speedy and effective

enforcement of the criminal laws, ensure swift

convictions deterring crime, see A. von Hirsch,

Doing Justice (1976), and avoid unnecessary ex-

penditures of public funds and judicial resources.”

478 Pa. at 498, 507, 387 A.2d at 432, 436-37 (footnote

omitted); see Barker v. Wingo, 407 U.S. 514, 519, 92

S.Ct. 2182, 2186, 33 L.Ed.2d 101 (1972) (“there is a

societal interest in providing a speedy trial which exists

separate from...the interests of the accused.’’).

Jerome next fully considered claims by the media

that a right of access to pretrial proceedings is guar-

anteed by the first and sixth amendments as applied

to the states through the due process clause of the

fourteenth amendment. We acknowledged the important

interest in public trials and in maintaining the judicial

process open to public view. Without doubt open judicial

proceedings serve to advance the quality of justice by

insuring that all participants act conscientiously and

by enhancing the possibility that those with information

or evidence will be alerted or will be willing to come

forward. And, indeed, the mere possibility of public

scrutiny certainly promotes public confidence that the

process of criminal justice is operating as it should.

478 Pa. at 501, 513, 387 A.2d at 434, 439; see Gannett,

supra 443 U.S. at 382-383, 99 S.Ct. at 2907. In the case

of pretrial suppression hearings, however, Jerome re-

fused to find an absolute right of acess constitutionally

63a

Appendix.

guaranteed. Rather this Court unanimously concluded

that in appropriate cases the need to protect an ac-

cused’s right to a fair trial and the goal of promoting

the public interest in an orderly criminal process per-

mitted the closure of a pretrial suppression hearing.

We in no way suggested that such hearings should be

casually or frequently closed. Nor did this Court permit

closure on nothing more than the motion of the de-

fendant. Jerome was firm that “any limitation on access

should be carefully drawn.”

“First, the right of access to court proceedings

should not be limited for any reason less than the

compelling state obligation to protect constitutional

rights of criminal defendants and the public interest

in the fair, orderly, prompt, and final disposition

of criminal proceedings. Second, access should not

be limited unless the threat posed to the protected

interest is serious. Third, rules or orders limiting

access should effectively prevent the harms at which

they are aimed. Finally, the rules or orders should

limit no more than is necessary to accomplish the

end sought.”

478 Pa. at 503-504, 387 A.2d at 434-35 (footnotes omit-

ted).

Based on these standards this Court concluded

that the media petitioners, in Jerome had not demon-

strated such an invasion of their rights as required

extraordinary relief and this Court denied their peti-

tions. On appeal to the United States Supreme Court

the case was dismissed for want of a substantial federal

question, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877

(1979) , see Hicks v. Miranda, supra.

64a

Appendix.

This was the very same day the Supreme Court

decided Gannett, in which the Court rejected the claim

that the “public trial” clause of the sixth amendment

guarantees the public or the media any right to attend

pretrial suppression hearings. In addition, the Court,

although reserving consideration of any right of access

under the first amendment, indicated that if any such

right exists, it had been satisfied by the trial court,

which had entertained media arguments in favor of

access before deciding to close the suppression hearing

in that case.6 Importantly, in upholding the action of

the trial court, the Supreme Court expressly rejected

any rule which would limit the availability of closure

orders in cases of “strict and inescapable necessity.”’

443 U.S. at 378, 99 S.Ct. at 2904.

In the circumstances of the present case, it is un-

necessary to predict exactly what place the first amend-

ment will eventually find. Rather it is sufficient to note

that Gannett forecloses any claim that the first amend-

ment requires a showing of strict necessity in order

to authorize an order of closure. I am convinced that

Jerome’s approval of closure orciers based on a showing

of a “serious threat” to fair trial rights gives adequate

protection to both sixth and first amendment values

6. Mr. Justice Powell, a member of the majority,

wrote separately to indicate his belief that the first

amendment guaranteed media access absent a showing

that without closure the defendant’s right to a fair trial

would likely be jeopardized. 443 U.S. at 400-401, 99 S.Ct.

a, 2916. But he concluded that the trial court had prop-

erly considered first amendment interests in authorizing

closure. On the otner hand, Mr. Justice Rehnquist, also

joining the opinion of the Court, wrote separately to

note that he would not find any first amendment right

of access. 443 U.S. at 404-406, 99 S.Ct. at 2918-19.

65a

Appendix.

and that the guidelines established in Jerome will sur-

vive any subsequent federal constitutional scrutiny.

Moreover, I do not understand any member of this

Court to suggest otherwise.

Similarly, the Pennsylvania Constitution does not

preclude the possibility of closure in the circumstances

described in Jerome. As Mr. Justice Nix acknowledges,

nothing in our prior cases suggests that either art. I,

§ 9 or art. I, § 11 of our state Constitution can be read

as guaranteeing the media a right to attend pretrial

suppression hearings in every case. And it must be

emphasized that only three Justices purport to find any

basis in our state Constitution for requiring that closure

orders must be limited more strictly than this Court

suggested in Jerome.

These three Justices focus on art. I, §$ 11, which

provides:

“All courts shall be open; and every man for

an injury done him in his lands, goods, person or

reputation shall have remedy by due course of law,

and right and justice administered without sale,

denial or delay. Suits may be brought against the

Commonwealth in such manner, in such courts and

in such cages as the Legislature may by law direct.”

Two of these three Justices, Mr. Justice Larsen and Mr.

Justice Flaherty, would read this provision as an ab-

solute prohibition against closed pretrial suppression

proceedings. Yet this Court has already clearly rejected

such an absolute principle. For in Commonwealth v.

Trinkle, 279 Pa. 564, 124 A. 191 (1924), a case relied

on by Mr. Justice Nix, this Court stated:

“Public trials, with public records, were intro-

duced, and our Constitution perpetuates this prac-

66a

Appendix.

tice; but it must not be carried to an illogical and,

requiring unreasonable or impossible things...”

Id, at 568, 124 A. at 192.

Indeed, all three Justices who rely on art. I, § 11

simply fail to locate any single prior decision of this

Court or any contemporary historical materials which

support their views.7 Rather, each of these Justices

suggests that his view is compelled by a plain reading

of the constitutional text. Yet these assertions about

the plain meaning of this provision are obviously belied

by the fact that these three Justices cannot themselves

agree on what the constitutional language means.

Notwithstanding the absolutist view of Mr. Justice

Larsen or Mr. Justice Flaherty, it must be obvious that

the provisions of our Constitution must be read to-

gether. Accordingly the blanket refusal of these two

Justices to consider those pr visions of our Constitu-

tion which guarantee criminal defendants the right to

a fair trial before an impartial jury, art. I, §§ 6, 9, is

entirely inappropriate. Their approach evidences re-

markable disregard for the realities of our criminal

justice system and for established principles of fairness

and due process.

Although Mr. Justice Kauffman acknowledges the

constitutional requirements of a fair trial, I am con-

vinced that his test of strict and inescapable necessity, if

followed, would in fact never permit the closure of a sup-

pression hearing. See, Remarks of Prof. Kamisar at the

7. Mr. Justice Nix is correct in noting that nearly

all our prior cases concerning this provision have con-

strued it as a guarantee of a legal remedy for a wrong

or injury. Opinion of Mr. Justice Nix, ante at 321.

67a

Appendix.

First Annual Supreme Court Review and Constitutional

Law Symposium, reprinted in the Supreme Court. 1978-

1979 at 217 (1979). Thus, Mr. Justice Kauffman’s ap-

proach would also fail to protect either fair trial rights

or to account for the public interest in fair and prompt

criminal proceedings.’ I am in agreement with Mr. Jus-

tice Powell’s thoughtful opposition to a rule allowing

closure only on a showing of strict and inescapable

necessity :

“Tt is difficult to imagine a case where closure could

be ordered appropriately under this standard. A rule

of such apparent inflexibility could prejudice de-

fendant’s rights and disserve society’s interest in

the fair and prompt disposition of criminal trials.

As a result of pretrial publicity, defendants could be

convicted after less than the meticulously fair trial

that the Constitution demands, There also could be

an increase in reversal of convictions on appeals. In

either event, it seems to me that the approach sug-

gested ... would not adequately safeguard the de-

fendant’s right to a fair trial, a right of equal con-

stitutional significance to the right of access. The

better course would be a more flexible accommoda-

tion . . .—an accommodation under which neither

defendant’s rights nor the rights of members of the

press and public should be made subordinate.”

Gannett, supra at 399, 99 S.Ct. at 2915-16 (concurring

opinion). There is simply no valid reason under either

8. It must be noted that Mr. Justice Kauffman’s

proposed solution was squarely rejected by the Supreme

Court in Gannett, supra, 443 U.S. at 376-378, 99 S.Ct. at

9904. Thus his suggestion that reconsideration of Jerome

in light of Gannett is now required, ante at 337, is, to

say the least, astonishing.

68a

Appendix.

federal or state constitutional law for now reconsidering

the guidelines recently articulated in Jerome.

EXERCISE OF EXTRAORDINARY JURISDICTION

IS PLAINLY INAPPROPRIATE

The present case is a prosecution for sex offenses

brought against. a state legislator. There is no doubt

that it has attracted the special interest and curiosity

of the media and the public. In the trial court the de-

fendant, pursuant to our Rules of Criminal Procedure,

moved to suppress certain evidence and to have the sup-

pression hearing closed. At the time of this motion

representatives of the media were apparently present,

were permitted by the trial court to intervene and were

given an opportunity to present oral argument and to

file briefs in opposition to the motion for closure. Al-

though petitioners have not as yet provided this Court

with a transcript of these proceedings, we do note that

petitioner’s trial court briefs contain discussion and

citation of Jerome as well as Gannett. And the record

does clearly indicate that the trial judge afforded peti-

tioners a full hearing with a complete opportunity to

argue their position. Petitioner Press presented to the

trial court its proposal that a jury be selected, sworn

and sequestered before a suppression hearing and that

the hearing then be held in public. The trial judge re-

jected this suggestion and granted the defendant’s mo-

tion, supported by the Commonwealth, for closure. Given

these proceedings, there is absolutely nothing to suggest

that the trial court did not give due consideration to all

constitutional values and that the trial court’s ruling

69a

Appendix.

was not entirely consistent with the guidelines estab-

lished in Jerome, and of course Gannett.®

Since the Jerome case itself did not require our as-

sumption of extraordinary jurisdiction because, as the

unanimous Court held, no clear rights were violated,

surely in this case, where the trial judge has exercised

his discretion under the guidelines announced in Jerome,

extraordinary jurisdiction is inappropriate.

This Court’s view in Jerome of the acceptability of

pretrial closure orders explicitly rested on our unani-

mous judgment that other procedural precautions would

not always serve to insure the citizen accused a fair trial

or serve to protect the public interest in fair, orderly

9. Mr. Justice Kauffman bases his determination

to exercise extraordinary jurisdiction on an erroneous

belief that because there was no extended evidentiary

hearing in the trial court that therefore the trial court

necessarily gave no consideration whatsoever to claims

of public access or to the possibility of alternative pro-

cedures. Ante at 330 n. 6, 337 n. 19, These inferences

are wholly impermissible. It is manifestly clear that

the trial court did consider the very claims for seques-

tration now pressed upon this Court, and there is, quite

simply, no reason to believe that the trial court failed

properly to consider media claims of access. Even as-

suming that some or all of the elaborate procedural

requirements suggested by Mr. Justice Kauffman are

appropriate, the possibility that they may not have

been followed in this case is simply not a sufficient basis

for extraordinary instrusion into this criminal pro-

ceeding. Whatever the defendant’s burden may properly

be when he moves for an order closing the suppression

hearing, Mr. Justice Kauffman overlooks the obvious

fact that it is the party seeking extraordinary review

in this Court, here the media, that always has the affirm-

ative burden of showing such a denial of clear rights

as to require this Court’s intervention.

70a

Appendix.

proceedings. Voir dire, continuance, cautionary instruc-

tions, sequestration and change of venue were all con-

sidered and difficulties with each of them described.10

Jerome of course did not reject the possibility that in a

given criminal case one or a combination of these pro-

cedures might serve to provide a fair trial. But Jerome

clearly recognized that each of these procedures has its

flaws and that in the event of a case of high publicity

the closure of the pretrial hearing may obviate the need

for these measures. Crucially, Jerome did not require

that closure be used only upon a showing that it was the

only possible procedural device capable of providing a

defendant a fair trial. Jerome did not establish any test

of strict necessity. Rather, Jerome permitted the trial

10. As this Court said in Jerome:

“Courts in the past have attempted to deal with

prejudicial disclosure by lengthy voir dire of poten-

tial jurors, extensive continuances, burdensome

sequestration, and cautionary instructions. Be-

cause these techniques do not eliminate preju-

dicial disclosure, but only may reduce some of its

effects, all have proven unsatisfactory in many

cases. Only one other method, change of venue,

may in some cases put a case beyond the physical

range of disclosure, but it may not be effective in

cases of statewide or national attention, such as

Commonwealth v. Boyle, or Estes v. Texas, 381 U.S.

532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Further,

pre-trial publicity may follow a case to its new

venue.

Through voir dire, a court attempts to mini-

mize the effect of pre-trial publicity by excluding

from the jury those whom publicity has biased, But

it cannot hope to eliminate all jurors who have been

exposed to prejudicial information. In a highly

publicized case, effective voir dire may distort the

composition of the jury by screening out all those

T1la

Appendix.

court, in the exercise of its sound discretion, to grant a

motion for closure on a showing that such an order

would serve to avert a serious threat of a defendant’s

right to a fair trial.

By their very nature, decisions concerning the con-

duct of pretrial and trial proceedings will, in the indi-

vidual case, be left to the considered judgment of the

trial court. It is the trial court which must shoulder the

basic affirmative responsibility to provide a fair trial.

Sheppard v. Maxwell, supra. And in large measure ap-

pellate courts must, here as in many other areas, rely

upon the trial court to perform that responsibility prop-

erly. Commonwealth v. Stewart, supra; Commonwealth

v. Bruno, supra; see Commonwealth v, Knight, 469 Pa.

57, 364 A.2d 902 (1976) (decision to exclude spectators

who take an active interest in news and public

affairs. Neither a defendant nor the Commonwealth

has an interest in seating such a jury. Other meth-

ods of dealing with prejudicial disclosure, such as

sequestration, continuances, or cautionary instruc-

tions to the jury, do not realistically reduce prema-

ool crass disclosure to which a jury is ex-

posed,

Finally, many of the methods for eliminating

the effects of prejudicial disclosure have other draw-

backs. A continuance allows evidence to become

stale and lengthens the period during which charges

remain unresolved and the accused confined or held

on bail pending disposition of the charges. Cf. Ger-

stein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863,

43 L.Ed.2d 54 (1975) (restraints on liberty caused

by prolonged detention). Changes of venue and se-

questration pose further problems of administra-

tion for courts and inconvenience for all persons

connected with a case.”

478 Pa, at 511, 387 A.2d at 438-39.

72a

Appendix.

from courtroom during testimony of young witness

within discretion of trial court). The trial judge is clear-

ly in a superior position to consider the atmosphere

surrounding a trial and in a superior position to consider

the practicality of adopting any given procedure.

In substantial part it was an appreciation of these

considerations which led this Court to reject the exer-

cise of extraordinary jurisdiction in Jerome. Now, hav-

ing identified the important constitutional values which

must be weighed when a defendant moves to have a sup-

pression hearing closed, we must, as an initial matter,

trust to the wisdom of the trial judge to consider those

values and to authorize closure only upon an appropriate

showing. This point is made clearly by Mr. Justice

Powell:

“The task of determining the application of these

limitations in each individual trial necessarily falls

almost exclusively upon the trial court asked to

exclude members of the press and public from the

courtroom. For it would be entirely impractical to

require criminal proceedings to cease while appel-

late courts were afforded an opportunity to review

a trial court’s decision to close proceedings.”

Gannett, supra, 443 U.S. at 398, 99 S.Ct. at 2915 (con-

curring opinion).

In this case, where there is absolutely no affirmative

showing that the trial court has acted erroneously in

ordering closure, the disruptive exercise of extraordi-

nary jurisdiction is glaringly inappropriate. Here the

trial of the underlying criminal case has been signifi-

cantly delayed awaiting these attempts at extraordinary

review. Such delays, at the behest of parties other than

73a

Appendix.

the defendant or tie Commonwealth, ignore the de-

fendant’s right to a speedy trial, U.S.Const. Amend.

VI (speedy trial); Pa. Const. art. I, § 9 (same);

Pa.R.Crim.P. 1100 (accused must be brought to trial

within 180 days of initiation of criminal proceedings),

and ignore the independent public interest in swift

and fair proceedings. Barker v. Wingo, supra. No in-

terest is served by today’s unwise attempt at super-

vision.

THE PROPOSED SEQUESTRATION SCHEME

IMPOSES ENORMOUS COSTS, PLAINLY

FRUSTRATES THE ADMINISTRATION OF

CRIMINAL JUSTICE AND MANIFESTLY

THREATENS THE RIGHT TO A FAIR TRIAL

Finally, but importantly, the sequestration scheme

suggested by Mr. Justice Nix will impose upon the trial

court, the defendant, the prosecution and the Common-

wealth a completely impractical, unfair and burdensome

procedure. The proposal of selecting and swearing a jury

prior to the suppression hearing and of sequestering

that jury from the time of the hearing until the end of

the trial would place pressures and difficulties upon all

involved that make such a scheme a clearly unworkable

and impermissible alternative.

Mr. Justice Nix asserts, that, at least in the present

case, the suppression hearing will occur just prior to

trial and thus there will be little delay between seques-

tration and the beginning of trial. In fact the pretrial

scheduling of this case has already produced extended

and unforeseen delay. Nothing in the record suggests

what further turus the trial of this case may take. In-

deed it is unlikely that this Court is ever in a position to

judge with any certainty on exactly what schedule any

case will proceed.

74a

Appendix.

Of course under this scheme even the shortest delay

between the suppression hearing and the trial will not

obviate the need to maintain sequestration of the jury

throughout the trial, at least in the likely event that the

public suppression hearing produces testimony or evi-

dence which will be inadmissible at trial. Clearly the

decision to sequester a jury prior to the suppression

hearing carries with it the commitment to continue se-

questration until a verdict is reached. Thus, this scheme

will reguixe sequestration of a jury during the full course

of the trial in cases where a closure order may obviate

the need for any sequestration whatsoever. Even in the

event that trial sequestration may be necessary, under

today’s proposal any delay between the suppression

hearing and the trial will obviously increase the time

period during which the jury must be sequestered. As a

practical matter this sequestration procedure will result

in enormous cost to the counties of this Commonwealth,

and cause severe problems of administration and fair-

ness.

First, the Commonwealth must pay, house and feed

all twelve jurors and two alternates throughout the en-

tire time of their sequestration. Court administrators in

this Commonwealth uniformly report that the average

cost for food and lodging alone for only one day is, at a

minimum, $600.00. These costs, however, are just the

beginning. Sequestration also demands court personnel

to supervise and attend to the jurors and security per-

sonnel to insure against impermissible contact with the

outside community. These groups are necessarily paid at

increased rates of compensation for this special around

the clock service. There is also the cost of special trans-

portation to and from the court each day. And there are

75a

Appendix.

always a variety of necessary miscellaneous costs for

the safety, entertainment and comfort of the seques-

tered jurors. Finally, in cases of extended sequestration,

arrangements must be made for contact visits, for the

supervised receipt of mail and for the medical needs or

other personal requirements of the jurors. Court admin-

istrators report that the average cost of a sequestered

jury for a single day is now at least $1500.00 to $1800.00.

See State v. Allen, 73 N.J. 132, 141, 373 A.2d 377, 381

(1977) (costs of sequestration “enormous” ).

The financial costs of this procedure are indeed sub-

stantial. But economic objections are overshadowed by

the extreme unfairness this procedure poses for the de-

fendant.

Having sequestered a jury at such heavy public

expense, pressure will inevitably fall upon the trial judge

to hurry his disposition of the suppression claims, as

well as all other pretrial matters. At a minimum, judicial

control of pretrial proceedings will be compromised and

matters normally requiring last minute attention or re-

arrangement quite possibly will be brushed aside.

Clearly, under such self-imposed pressure, any sup-

pression claims will be hastily decided, including those

which may require research and reflection. A decision

rendered in these circumstances will undoubtedly pro-

vide grounds for subsequent appellate review. An erro-

neous suppression decision may well require that any

conviction be reversed and a new trial granted.

Surely those urging this sequestration scheme do

not mean to suggest that the Commonwealth or the de-

fendant will not be permitted a continuance after the

suppression hearing should they require more time in

order properly to prepare for trial. These normal and

76a

Appendix.

necessary delays will pose substantial difficulties, how-

ever, when a jury waits, impatiently sequestered. In ad-

dition, this sequestration scheme is plainly inconsistent

with our established rule that the Commonwealth has a

right of appellate review, before trial, in the event that

important Commonwealth evidence is suppressed. Com-

monwealth v. McDade, 462 Pa. 414, 416 n.1, 341 A.2d

450, 451 (1975) cert. denied, 424 U.S. 909, 96 S.Ct. 1102,

47 L.Ed.2d 312 (1976) ; Commonwealth v. Bosurgi, 411

Pa, 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct.

204, 11 L.Ed.2d 149 (1963). The trial judge’s awareness

of the possibility of a Commonwealth appeal may well

dispose him toward denying arguable suppression claims

rather than permit the delay which a Commonwealth

appeal would require. And of course in the event that

evidence is suppressed and an appeal taken, Mr. Justice

Nix’s sequestered jury will remain, in its hotel, at

Commonwealth expense, isolated and idle.

Once the jury is selected and sworn jeopardy at-

taches. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57

L.Ed.2d 24 (1978). Accordingly, if any problem less

than “manifest necessity” results in the discharge of

the first jury, the constitutional prohibition against

double jeopardy will prohibit “retrial” of the defendant.

United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed.

165 (1824). Realistically, we must expect that any

number of problems which may arise during the ex-

tended time between selection and sequestration of the

jury and the start of trial will be improperly swept

under the rug in an attempt to proceed to trial with

the original jury. On the other hand, should some serious

problem amounting to “manifest necessity” require dis-

charge of the first jury after the hearing but before

77a

Appendix.

trial, then the new pool of jurors will have been ex-

posed to the publicity attendant on that hearing. In

that event a continuance or a change of venue may be

necessitated. At a miniznum, further delay and substan-

tial additional expense will ensue.

Fairness will of course require that the trial judge

inform members of the jury pool that if selected they

may be sequestered for a substantial period of time,

for a period far longer than the time required for the

trial alone. Thus we may safely anticipate an extended

and burdensome selection process as large numbers of

potential jurors seeks to be excused on the ground of

personal hardship. Inevitably only those jurors who do

not have business or personal affairs requiring attention

will serve. The natural result of such a skewed selection

scheme will be to produce a panel of jurors out of the

mainstream of community life. Such a procedure is in

direct conflict with the constitutional requirement that

jury selection procedures serve to produce a cross-

section of the community. Ballew v. Georgia, 435 U.S.

223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978); see Wither-

spoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d

776 (1968). As this Court has already emphasized:

“Neither a defendant nor the Commonwealth has an

interest in seating such a jury.” Jerome, supra 478 Pa.

at 511, 387 A.2d at 438.

Additionally, it is well known that a sequestered

jury is at best an impatient jury, and that such juries

are likely to develop hostility or resentment toward

the defendant. State v. Allen, supra 73 N.J. at 141, 373

A.2d at 381; id. at 164, 373 A.2d at 393 (Pashman, J.,

concurring) ; United States v. Schiavo, 504 F.2d 1, 23-24

(3rd Cir. 1974) (Aldisert, J., joined by Weis, J., dis-

78a

Appendix.

senting); Amsterdam, Segal & Miller, Trial Manual 3

for the Defense of Criminal Cases, {[[343], at p. 1-350

(3d ed. 1974 & Supp.1978). Obviously, the possibility of

such hostility is markedly increased when the jury

spends its days idly in a hotel room rather than, at

least, attending court and considering testimony. Not

unlikely is the possibility that such a captive jury,

frustrated by the entire affair, will attempt to perform

its function quickly and without adequate deliberation.

United States v. Acuff, 410 F.2d 463, 467 (6th Cir. 1969).

Again, no interest of justice is served by such a scheme.

Today’s novel sequestration scheme will also force

the defendant to select a jury before he knows what

the Commonwealth’s evidence will be. In truth, this

scheme deprives both the defendant and the Common-

wealth of a pretrial suppression hearing altogether.

Yet the opportunity to test the admissibility of Com-

monwealth evidence in order to prepare for trial is an

important benefit to the defendant. And no less, the

usual pretrial hearing provided by our Rules affords

the Commonwealth the related benefit of preparing its

case based on the knowledge of what evidence will be

available to it. W. LaFave, 3 Search and Seizure, § 11.1,

p. 476-77 (1978). As already indicated, our usual pro-

cedure allows the Commonwealth the opportunity to

appeal those suppression decisions which significantly

effect its case. It is clearly unfair to force the defendant

and the Commonwealth to forego these advantages. In-

deed it is established that constitutional due process

places limits on the degree to which the state may

circumscribe the defendant’s freedom in making trial

decisions. See Brooks v. Tennessee, 406 U.S. 605, 92

S.Ct. 1891, 32 L.Ed.2d 358 (1972) (state may not re-

quire defendant, wishing to testify, to do so before other

79a

Appendix.

defense evidence is offered). In rejecting the type of

sequestration scheme proposed today, the New York

Court of Appeals has just recently emphasized these

same difficulties:

“The suggestion that sequestration may serve as

an alternative to closure is impractical when a

pretrial proceeding is involved. Generally at that

stage there are no jurors to sequester and to delay

the hearing until the jury has been, or is about to

be drawn, would deprive the accused, and often

the prosecutor, of the benefit of a pretrial ruling—

that is, advance warning and time to prepare for

trial on matters essential to the case.”

Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d

430, 444, 423 N.Y.S.2d 630, 639, 399 N.E.2d 518, 526

(1979). Given our system of pretrial suppression hear-

ings, it would be a serious denial of due process for

any trial court to require an objecting defendant either

to select a jury or to decide whether to waive a jury

trial before his suppression motions are decided.

Perhaps worst of all, this scheme will place con-

siderable pressure on a defendant to avoid these difficul-

ties by foregoing his right to a suppression hearing.

Few defendants will look happily upon the opportunity

to argue their case before a jury which has been left

isolated for days or weeks prior to trial. Basic notions

of fairness and due process do not permit this Court

to condition the availability of a suppression hearing on

consent to such a trial. See Simmons v. United States,

390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)

(government may not condition opportunity to suppress

evidence on possibility that testimony at suppression

hearing might become admissible at trial); cf. United

80a

Appendix.

States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d

138 (1968) (government may not use fear of death

penalty to dissuade defendant from asserting right to

jury trial) ; Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct.

616, 17 L.Ed.2d 562 (1967) (prosecution cannot use

statements obtained from police officers threatened with

discharge if they refused to testify). The proposed se-

questration scheme would obviously place an impermis-

sible chill on the exercise of fundamental fair trial

rights.

The proposed sequestration scheme will place oner-

ous burdens on the resources and administration of our

criminal justice system. Today’s proposal will frustrate

and delay prosecutions of criminal trials, will impose

severe burdens on sequestered jurors and will create

pressures which can operate only to deprive citizens of

a fair trial. Inevitably this scheme will force those

citizens it affects to face a criminal process significantly

more hostile and less fair than ever anticipated by our

Rules. It will also create a system clearly contrary to

established concepts of due process.

8la

Conclusion.

CONCLUSION

Surely, as Jerome acknowledged, generally open

judicial proceedings promote public confidence in the

judicial system. But equally, courts do not gain or

retain public confidence by the denial of fair treatment

to those citizens involved in our criminal process. To-

day’s ad hoc departure from the established limitations

on our exercise of extraordinary jurisdiction is plainly

misguided and today’s action, at the expense of the

proper and orderly administration of criminal justice

and at the expense of those citizens involved in the

criminal justice system, manifestly disserves the in-

terests of justice. One can only hope that a majority

of this Court, less swayed by its perceptions of the

fashionable trends of the moment, will soon recognize

the error of today’s misjudgment.

EaGcEN, C. J., and O’ BrigEn, J., join in this Dissent-

ing Opinion.