# Petition — Hayes v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0164%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 992 ## Text 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 ap [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0164%3A1. Public record. Not legal advice.