Amicus Curiae Brief — Press-Enterprise Co. v. Superior Court of Cal., County of Riverside
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Supreme Court, U.S.
FILE Dp
IN THE NOV 27 1985
Supreme fs of the Cnited States ® see"
Y CTOBER TERM, 1985
& + PRESS-ENTERPRISE COMPANY,
Ss Petitioner,
PS V.
SUPERIOR COURT OF CALIFORNIA, RIVERSIDE COUNTY,
Respondent.
On Writ of Certiorari to The Supreme Court of California
BRIEF AMICI CURIAE OF AMERICAN NEWSPAPER PUBLISHERS AS-
SOCIATION; THE SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA
DELTA CHI; AMERICAN BROADCASTING COMPANIES, INC.; AMER-
ICAN SOCIETY OF NEWSPAPER EDITORS; CBS INC.; CHICAGO TRI-
BUNE COMPANY; CHRONICLE PUBLISHING CO.; THE CONCORD
MONITOR; DOW JONES & CO., INC.; GANNETT CO., INC.; GLOBE NEWS-
PAPER COMPANY; THE HEARST CORPORATION; THE MIAMI HERALD
PUBLISHING CO.; MINNEAPOLIS STAR AND TRIBUNE COMPANY; NA-
TIONAL ASSOCIATION OF BROADCASTERS; NATIONAL NEWSPAPER
ASSOCIATION; NATIONAL PUBLIC RADIO; THE PHILADELPHIA IN-
QUIRER; PHOENIX NEWSPAPERS, INC.; PUBLIC BROADCASTING
SERVICE; RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION; RE-
PORTERS COMMITTEE FOR FREEDOM OF THE PRESS; RICHMOND
NEWSPAPERS, INC.; SCRIPPS HOWARD; SEATTLE TIMES COMPANY;
AND THE WASHINGTON POST.
—_— C -
BRUCE W. SANFORD
Counsel of Record
LEE LEVINE
JAMES E. GROSSBERG
JANET REHNQUIST
ADRIENNE S. WIEAND
BAKER & HOSTETLER
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 861-1500
Counsel for Amici
[List of Counsel continued in Appendix]
PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203
vw
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES 2... ccc ccc ccccccnccccce cee ili
INTEREST OF THE AMICI CURIAE .................. ]
SUMMARY OF ARGUMENT ..............ccccccccecee l
I i RE a a a i a i 3
I. The Press And Public Have A First Amendment
Right Of Access To Judicial Proceedings in Criminal!
SE ae re oy ee Cake el eee 3
A. The First Amendment Grants The Press And
Public A Right Of Access To Criminal Proceed-
SE PeRUGRa URE AUG Os dAesaN oes kAbedBues cies. 3
B. Judicial Proceedings In Criminal Cases Have
Traditionally Been Conducted In Open Court .
C. Access To Judicial Proceedings By The Press
And Public Promotes The Integrity Of The Crim-
inal Justice Process And Our System Of Self-
EG RIES Regen ag 12
1. Open judicial proceedings provide a funda-
mental safeguard for the fair conduct of the
criminal justice system .................. 14
2. Open judicial proceedings in criminal cases
facilitate the free discussion of public affairs. 17
II. Judicial Proceedings in Criminal Cases Cannot Be
Closed To The Press And Public Unless: (A) Open
Proceedings Would Create A Clear And Present
Danger To The Fairness Of The Trial; (B) No Less
Restrictive Alternatives To Closure Are Available:
And (C) Closure Will Effectively Protect Against
**
ad
Re IE a boncccccocccescosciveces 19
A. Pretrial Publicity Will Rarely, If Ever, Prevent A
i le Cee eed Sauk oun Ki levde 64% « 21
B. Closure Is Justified Only If No Less Restrictive
Alternatives Are Available .................. 25
C. A Closure Order Must Effectively Protect
Against The Perceived Harm ............... 28
EE Sas CUNU He Suh bbna a Os Re vede-ssdeerecses 29
TCE LEY AIT 8 Da ol ee la
il
Table of Contents Continued
Description of Amici .......... 60000 eeeee seer recess
Counsel for Amici
~ i
ill
TABLE OF AUTHORITIES
CASES: Page
Application of National Broadcasting Co., 635 F.2d 945
ee coe esc c ca ceckcesccesees 23
Application of the Herald Co., 734 F.2d 93 (2d Cir.
a cbd eas ccccccececevecccccccs 11
Arkansas Television Co. v. Tedder, 281 Ark. 152, 662
ES 11
Ashland Publishing Co. v. Asbury, 612 S.W.2d 749 (Ky.
EE EEE SEES i2
Beck v. Washington, 369 U.S. 541 (1962) ............ 24
Buzbee v. Journal Newspapers, Inc., 297 Md. 68, 465
ee, . ccc cceccevcecces 12
CBS, Inc. v. United States District Court, 729 F.2d 1174
EEE EE 23
Chandler v. Judicial Council, 398 U.S. 74 (1970) ..... 16
Coleman v. Alabama, 399 U.S. 1 (1970) ....... 13, passim
Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318, cert.
denied, 449 U.S. 992 (1980) ................... 12, 26
Duncan v. Louisiana, 391 U.S. 145 (1968) ........... 15
Federated Publications, Inc. v. Kurtz, 94 Wash. 2d 51, 615
EE 12
Gannett Co. v. DePasquale, 443 U.S. 368 (1979) . 4, passim
Gannett Pacific Corp. v. Richardson, 59 Hawaii 224, 580
EEE EE 12
Gerstein v. Pugh, 420 U.S. 103 (1975) .......... 5, passim
Globe Newspaper Co. v. Superior Court, 457 U.S. 596
PTE GeeeSE665650665.0%000c0ceee 1, passim
Groppi v. Wisconsin, 400 U.S. 505 (1971) ............ 27
Herald Association v. Ellison, 138 Vt. 529, 419 A.2d 323
CECE EUR eeecececsceccceecocccces 12
Irvin v. Dowd, 366 U.S. 717 (1961) ................ 21, 22
In re Globe Newspaper Co., 729 F.2d 47 (1st Cir.
UTS dG ake cacccesccccccccecccess il
In re Mack, 386 Pa. 251, 126 A.2d 679 (1956), cert. denied,
I cc scccccccccceccccccce 28
In re Oliver, 383 U.S. 257 (1948) ................... 11
iv
Table of Authorities Continued
Page
In re P.R. v. District Court, 637 P.2d 346 (Colo.
OD vk vcdccineecdecseccossbucdsseneveeseiaces 20
Johnson v. United States, 333 U.S. 10 (1948) ......... 17
Journal Newspapers, Inc. v. State, 54 Md. App. 98, 456
DDE occ cccerssencndsesscesnetceetss 17
Kansas City Star Co. v. Fossey, 230 Kan. 240, 630 P.2d
ROU GED: 6.6 ah 6s.00cs00enbacndsacheuseene totes 20
Kearns - Tribune Corp. v. Lewis, 685 P.2d 515 (Utah
SD: cg adedvctcncnddasacnddnse rieeaesianeexs 12
Keene Publishing Corp. v. Cheshire County Superior
Court, 119 N.H. 710, 406 A.2d 137 (1979) ....... 12
Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla.
BOE i nckasvscesaeensdestenacacecetsneasesees 12
Mills v. Alabama, 384 U.S. 214 (1966) .............. 17
Minneapolis Star & Tribune Co. v. Kammeyer, 341
N.W.2d 550 (Minn. 1983) ...........eeeeeeeeeees 12
Murphy v. Florida, 421 U.S. 794 (1975) ....... 21, passim
Nebraska Press Association v. Stuart, 427 U.S. 539
i. POPPE T TTT tT te 20, passim
Patton v. Yount, 104 S. Ct. 2885 (1984) ..........4-.. 26
People v. Harris, 6 Media L. Rep. (BNA) 1399 (Mich. Cir.
May 30, 1980) ......cccccccccccvcccccerccsceces 28
Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490
ot fy .) \ wererrrererrrrer: cr rrr er 11
Press-Enterprise Co. v. Superior Court, 464 U.S. 501
1 Perr oo TT 1, passim
Press-Enterprise Co. v. Superior Court, 37 Cal. 3d 772,
691 P.2d 1026, 209 Cal. Rptr. 360 (1984) ....... 21, 25
Press-Enterprise Co. v. Superior Court, 150 Cal. App. 3d
888, 198 Cal. Rptr. 241 (1984) ............ eee eee 21
Rapid City Journal Co. v. Circuit Court, 283 N.W.2d 563
GES, BUUED acccnccéececésusseusecsectuvaneenen 12
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
CED knadedcevdycceescacateedeuastanusen 1, passim
Richmond Newspapers, Inc. v. Virginia, 222 Va. 574, 281
\ BBG GAS CRISE) ow cccccscvcsccccssesencewess 12
Table of Authorities Continued
Page
Rideau v. Louisiana, 373 U.S. 723 (1963) .......... 24, 27
R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815
EEE 6.) 5d oo 040Gb hd dddbe i bE4 bed nbn dnbehensses 12
Sheppard v. Maxwell, 384 U.S. 333 (1966) ..... 24, passim
Smith v. Daily Mail Publishing Co., 443 U.S. 97
Casa cAdecneh hv adie deed énkbiswaowkens 20
Star Journal Publishing Corp. v. County Court, 197 Colo.
ee reer ee 11, 12
State v. Burak, 38 Conn. Supp. 627, 431 A.2d 1246 (Super.
SD didn ebednentehisdketecnnveddasuscedencs 12
State v. Porter Superior Court, 274 Ind. 408, 412 N.E.2d
PE cco wen enanwes -peetecbkbncebaesinns oes 12
State v. Williams, 93 N.J. 39, 459 A.2d 641
SE bb ee nad Seanad neser anes vekiee te 11, passim
State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio
St. 2d 457, 351 N.E.2d 127 (1976) ............... 12
State ex rel. Herald Mail Co. v. Hamilton, 267 S.E.2d 544
Se I oa eset tee Cree es ee 12
State ex rel. Smith v. District Court, 654 P.2d 982 (Mont.
UE dk beddunaeiinwthe snus dcehedaerenes Giceus 12, 20
Stroble v. California, 343 U.S. 181 (1952) .......... 24, 26
The Trial of Colonel Turner, 6 Har. St. Tr. 565(O.B. 1664) 6, 7
The Trial of Count Coningsmark, 9 Har. St. Tr. 1 (O.B.
DT Gnncdhy ks dunes akadedbaseuniecennes dies 7
The Trial of George Busby, 8 Har. St. Tr. 525 (Assizes
DE shu ecubbiwkcduet ais a wigs ah 4o0.o0sn eens 7
Tumey v. Ohio, 273 U.S. 510 (1927) ................. 17
United States v. Burr, 25 F. Cas. 1(C.C.D. Va. 1807) (No.
Luk dndddhnstins kdb deacon tuvaebdeneed axe 9
United States v. Burr, 25 F. Cas. 25 (C.C.D. Va. 1807)
SD i teh gg i olden 9, 10
United States v. Brooklier, 685 F.2d 1162 (9th Cir.
SP sadeed edu cnctdeuwddeencdCakebenes 11, passim
United States v. Chagra, 701 F.2d 354 (5th Cir. 1983) . 11
vl
Table of Authorities Continued
Page
United States v. Criden, 675 F.2d 550 (3d Cir.
BED choc dpccasacescsnnevedenenqetstees 11, passim
United States v. Edwards, 430 A.2d 1321 (D.C. 1981),
cert. denied, 455 U.S. 1022 (1982) ........ 12, passim
United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976),
cert. denied, 431 U.S.,983 (1977) ...........4-- 16, 24
United States v. Mitcheil, 551 F.2d 1252 (D.C. Cir. 1976),
rev'd on other grounds, 435 U.S. 589 (1978) ...... 24
United States v. White, 28 F. Cas. 588 (C.C.D. Pa. 1807)
a -- . ecnnenhuenaese ews awae= x
Waller v. Georgia, 104 S.Ct. 2210 (1984) ....... 13, passim
Westchester Rockland Newspapers, Inc. v. Leggett, 48
N.Y.2d 430, 399 N.E.2d 518, 423 N.Y.S.2d
OND (EE na coc ck bids hob ekekeakiecatonsasnnes i2
Williams v. Florida, 399 U.S. 78 (1970) ...........4-- 15
Williams v. Stafford, 589 P.2d 322 (Wyo. 1979) ....... 12
STATUTES:
Cal. Penal Code § 868 (West 1982) ............--005- 12
Indictable Offences Act, 11 & 12 Vict., ch. 42 (1849)... Li
Metropolitan Police Act of Peel, 10 Geo. 4, ch. 44
SEE. 2 <c2 ns abccsesgadkbebantiwedwsens caeyeee's 11
Mich. Stat. Ann. § 274.1420 (Callaghan 1980) ........ 12
1 & 2 Phil. @ M., ch. 18 (1666) . on ccc cc ccc ccccvees 5, 6
29 & 3 Phil. & M., ch. 10 (1565) .........ccccceceeees 6
Prisoners’ Counsel Act, 6 & 7 Will. 4, ch. 114 (1836)... 11
Wis. Stat. Ann. § 757.14 (West 1981). ............... 12
REGULATIONS:
SR C.P RR. SERDCIED cc cccccccccscccccvcccessvees 20
TREATISES:
J. Bentham, Rationale of Judicial Evidence (1827) .... 15
J. Bishop, New Criminal Procedure (2d ed. 1913) ..... 5
vii
Table of Authorities Continued
Page
J. Goebel & T. Naughton, Law Enforcement in Colonial
New York: A Study in Criminal Procedure 1664-1776
ET Sh id ChE REE bone aden d dee canddbsdeeeks x
W. Holdsworth, A History of English Law (2d ed.
DE dtr tncgute daccuseewhtundtwentsices exe 5, passim
E. Jenks, The Book of English Law (6th ed. 1967) .... 5
Y. Kamisar, W. LaFave & J. Israel, Modern Criminal
I Gee GR, HOD ow vc vc cdvccccciccccccces 15
W. LaFave & J. Israel, Criminal Procedure (1984) .... 13
F. Maitland, Justice and Police (1972) ............... 11
R. Moley, Our Criminal Courts (1930) ..... edaakin 8, 11
F. Pollock, The Expansion of the Common Law (1904) 5, 10
F. Poliock & F. Maitland, The History of English Law (2d
TE ESS Pine ee ar ee eee Le 5
R. Pound, Criminal Justice in America (1930) ........ 8
R. Simon, The Jury: Its Role in American Society
I i dia Ae ids sgt pi ah iiNet ea wisi ties ae 22, 23
T. Smith, De Republica Anglorum (1583) (Alston ed.
Sa ia cihndedin obit cdblee ai eae ne athe 8
J. Stephen, A History of the Criminal Law of England
EE iN edruty idk d il ad oe UE ned dit eoe ake heen tae s 7, 11
C. Whitebread, Criminal Procedure (1980) ........... 13
ARTICLES:
Brill, Inside the DeLorean Jury Room, Am. Law., Dec.
Sb etae hp pte ce ke buGueuanes cues aeeny 23
Geis, Preliminary Hearings and the Press, 8 U.C.L.A.
Fe FR er a ae ee 9
Kaplan, Of Babies and Bathwater, 29 Stan. L. Rev. 621
I a he re re a nas 22
Kauper, Judicial Examination of the Accused—A Reme-
dy for the Third Degree, 30 Mich. L. Rev. 1224
sis cUcuCderidaeneauebebuesetevesvereees 8
viii
Table of Authorities Continued
Page
Kline & Jess, Prejudicial Publicity: Its Effect on Law
School Mock Juries, Journalism Q.,
Spring 1966 .........ce cece cece e eect eeeees 22
Note, First Amendment Right of Access to Pretrial Pro-
ceedings in Criminal Cases, 32 Emory L. J. 619
(3) Prey Tort Tek Te CLEP 13
Padawer-Singer, Singer & Singer, Voir Dire by Two Law-
yers: An Essential Safeguard, Judicature, April
BOBS idccdice cds cen eu db ae oe ds Saab taneses ess 26
Riley, Pretrial Publicity: A Field Study, Journalism Q.,
Spring 1973 ........ecceeeceseeeeeeceeeeeeeees 23
Simon, Murder, Juries, and the Press, Trans-Action,
May-June 1966 ..........c eee ee cece eee ee reece 22, 26
Simon & Eimermann, The Jury Finds Not Guilty: An-
other Look at Media Influence on the Jury, Jour-
nalism Q., Summer 1971 .........--05e eee renee 22
Spencer, Coverage Seldom Cause for Conviction Rever-
sal, Presstime, Oct. 1982 .........--eeeeeeeeres 24
The Men at the Bar Meeting Debate Gannett v. DePas-
quale, The Quill, March 1980 .......----.-+++: 22, 23
Wells, The Origin of the Petty Jury, 27 L.Q. Rev. 347
GEE cidvueseiaececs ep RSP Peary Pere 5
Wilcox, The Press, the Jury, and the Behavioral Sciences,
Journalism Monographs, Oct. 1968 ..........-++: 22
OTHER AUTHORITIES:
American Bar Association, Standards Relating to the
Administration of Justice, Fair Trial and Free Press,
Standard 8-3.2 (2d ed. 1980) .........--0-5ee ee 12, 20
C. Bernstein & R. Woodward, All the President’s Men
Se dicta ébndn steicnwnns4ooes keeende enerevens 16
J. Buddenbaum, D. Weaver, R. Holsinger & C. Brown,
Pretrial Publicity and Juries: A Review of Research
CE chic ba bu oie casere asl Ys cs senseeseeses 22, 26
Commissioners on Practice and Pleadings, New York
Code of Criminal Procedure, 4th Rep. (1849) ..... 9
ix
Table of Authorities Continued
Page
W. Grady, Prejudicial Pretrial Publicity: Its Effects on
Juries and Jurors (1972) (unpublished thesis, North-
ee 22, 23
N.Y. Times, Sept. 2, 1984, Jan. 25 & 27, Feb. 13 & Sept. 9,
Satake eerste th os can dunwee os 18
Revised Report of the Judicial Conference Committee on
the Operation of the Jury System on the “Free
Press—Fair Trial” Issue, 87 F.R.D. 519 (1980) ... 12
S. Riley, The Free Press—Fair Trial Controversy: A Dis-
cussion of the Issues and an Examination of Pretrial
Publicity by Survey Research (1970) (unpublished
Ph.D. dissertation, University of
Ea EE 22
U.S. Department of Justice, The Prosecution of Felony
CED So eviccccsveceasvescercesss 13, 19
Wash. Post, June 18, 1972 & May 10, 1985 ......... 16, 18
IN THE
Supreme Court of the United States
OCTOBER TERM, 1985
No. 84-1560
PRESS-ENTERPRISE COMPANY,
Petitioner.
V.
SUPERIOR COURT OF CALIFORNIA, RIVERSIDE COUNTY,
Respondent.
On Writ of Certiorari to The
Supreme Court of California
Brief Amici Curiae of American Newspaper Publishers
Association; The Society of Professional Journalists,
Sigma Delta Chi; American Broadcasting Companies.
Inc.; American Society of Newspaper Editors; CBS Inc.;
Chicago Tribune Company; Chronicle Publishing Co.;
The Concord Monitor; Dow Jones & Co., Inc.; Gannett
Co., Inc.; Globe Newspaper Company; The Hearst Cor-
poration; The Miami Herald Publishing Co.; Min-
neapolis Star and Tribune Company; National Associa-
tion of Broadcasters; National Newspaper Association;
National Public Radio; The Philadelphia Inquirer;
Phoenix Newspapers, Inc.; Public Broadcasting Service;
Radio-Television News Directors Association; Reporters
Committee for Freedom of the Press; Richmond News-
papers, Inc.; Scripps Howard; Seattle Times Company;
and The Washington Post.
ee ge ee ee es ee ee ee ee en ee) eee eS fee ee ee ee ny : ipa i.
INTEREST OF THE AMICI CURIAE
In this second case involving the Riverside Press-Enterprise
to come before this Court in the last three terms, the California
courts have ruled that a trial judge properly conducted more
than forty days of pretrial hearings in a multiple-murder pros-
ecution behind closed doors. Amici curiae and their members
are publishers, broadcasters, editors, reporters and pho-
tographers working throughout the United States. See Appen-
dix infra. Amici are keenly aware that instead of acquiring
information about criminal proceedings “by firsthand observa-
tion or by word of mouth from those who attended, people now
acquire it chiefly through the print and electronic media.”
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73
(1980) (Burger, C.J. announcing judgment). Thus, amici
and their members possess a deep and abiding interest in
ensuring that the public’s right of access to judicial pro-
ceedings in criminal cases, a right guaranteed by the First
Amendment, is not compromised, as it has been in this
case.
SUMMARY OF ARGUMENT
Three times since 1980, this Court has held that the First
Amendment affords the press and public a right of access to
judicial proceedings in criminal cases. See Press-Enterprise
Co. v. Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise
I”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596
(1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980). The right of access emanates both from our tradition of
open judicial proceedings in criminal cases and from the vital
role of public proceedings in maintaining the integrity of the
judicial process and our system of self-government. /d. at 569.
The decision of the trial court in this case to close every
minute of a forty-one day preliminary hearing in a capital case
and seal the transcript of that secret proceeding violates the
First Amendment. Throughout Anglo-American history,
when criminal proceedings have matured from the inves-
tigative or inquisitorial stage to become part of the judicial
process, they have consistently been conducted in public. From
the open-air meetings of pre-Norman England through the
preliminary hearing presided over by Chief Justice Marshall
during the prosecution of Aaron Burr for treason, our heritage
bespeaks an unbroken tradition cf open judicial proceedings in
criminal cases.
Indeed, whether a judicial officer is called upon to render an
adjudication during the course of a criminal trial or in any of a
myriad of pretrial settings, public access to those proceedings
serves an imposing array of structural values. Open proceed-
ings provide a fundamental safeguard that restrains the abuse
of power by public officials, checks corrupt practices, and pro-
tects the rights of the accused. Moreover, public access ensures
the citizenry a free flow of information about the criminal
justice system and facilitates informed debate about public
affairs. In contemporary America, the criminal justice process
has become, for all practical purposes, a pretrial process. In an
era when more than ninety percent of criminal cases are dis-
posed of prior to trial, the public must have access to pretrial
proceedings, or else it will lose confidence in the system of
dispensing criminal justice itself. To deny the press and public
access to those judicial proceedings in which the fate of the
accused is typically determined will serve only to diminish the
reservoir of public confidence enjoyed by the judiciary for more
than two centuries.
Accordingly, amici urge this Court to hold that closure of
any judicial proceeding in a criminal case is constitutionally
impermissible unless, following a hearing and findings articula-
ted in the record, the trial court finds that (i) open proceedings
would create a clear and present danger to the fairness of the
trial; (2) no less restrictive alternatives to closure are available;
and (3) closure will effectively protect the accused's right to a
fair trial. If such a standard is properly applied, closure should
rarely, if ever, become necessary, especially since pretrial pub-
licity, even intense publicity, poses a realistic threat to a fair
trial in only the most extraordinary circumstances. In the
instant case, the trial court, as well as the California appellate
courts, erroneously presumed that publicity, in and of itself, is
an evil to be avoided, and consequently ordered closure of a
preliminary hearing without making the requisite findings.
That order is constitutionally impermissible and must be
reversed.
ARGUMENT
I. THE PRESS AND PUBLIC HAVE A FIRST AMEND-
MENT RIGHT OF ACCESS TO JUDICIAL PROCEED-
INGS IN CRIMINAL CASES.
A. The First Amendment Grants The Press And Public A
Right Of Access To Criminal Proceedings.
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980), this Court declared for the first time that the First
Amendment guarantees both the press and public a right of
access to judicial proceedings in criminal cases. This self-pro-
claimed “watershed” ruling, id. at 582 (Stevens, J., concurring),
stands for the ineluctable proposition that the courtroom “is a
public place where the people generally — and representatives
of the media — have a right to be present.” /d. at 578 (Burger,
C.J., announcing judgment).
In the instant case, the trial court's order closing a prelimin-
ary hearing and prohibiting release of the hearing transcript
violates the First Amendment right of access to judicial pro-
ceedings. By summarily closing the courtroom, the trial court
failed to recognize that the twin principles underlying this
Court’s previous decisions defining the right to attend criminal
proceedings apply with equal force to the preliminary hearing
and other adjudicatory pretrial proceedings: (1) judicial pro-
ceedings — whether trial or pretrial — “historically [have]
been open to the press and general public,” and (2) access to
such proceedings “plays a particularly significant role in the
functioning of the judicial process and the governmert as a
whole.” Globe Newspaper Co. v. Superior Court, 457 U.s. 596,
605-06 (1982).
B. Judicial Proceedings In Criminal Cases Have Tradi-
tionally Been Conducted In Open Court.
From Richmond Newspapers through Press-Enterprise I,
this Court has looked to the judgment of history for assistance
in ascertaining the scope of the First Amendment right of
access to the criminal justice process. Indeed, the Court has
repeatedly asserted that the right of access to judicial proceed-
ings draws its essence from its common law heritage, not only
“*because the Constitution carries the gloss of history,’” but,
more particularly, because the “‘tradition of accessibility im-
plies the favorable judgment of experience.” Globe Newspaper
Co. v. Superior Court, 457 U.S. at 605 (quoting Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (Bren-
nan, J., concurring in judgment)).' Thus, in Richmond News-
papers itself, the Court reviewed the historical record, dating
from the adoption of the First Amendment and earlier, and
concluded that public access “has long been recognized as an
indispensable attribute of an Anglo-American trial.” 448 U.S.
at 569 (Burger, C.J., announcing judgment). Similarly, in
Press-Enterprise I, Chief Justice Burger, writing for the
Court,” recognized that “since the development of trial by jury,
the process of selection of jurors has presumptively been a
public process.” 464 U.S. at 505.
The lessons of history reveal that, beyond the criminal trial
and voir dire, the presumption of public access has long been an
“indispensable attribute” of virtually all judicial proceedings
'The relevance of history in ascertaining the scope of the First Amendment
right of access to criminal proceedings is, therefore, markedly different from
the historical analysis undertaken in Gannett Co. v. DePasquale, 443 U.S.
368 (1979), in order to determine whether the Sixth Amendment affords
third parties, in addition to the accused, the right to a “public trial.” In the
First Amendment context, this Court has looked to history as a means of
discerning a “‘tradition of accessibility,” Giobe Newspaper Co. v. Superior
Court, 457 U.S. 596, 605 (1982) (quoting Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 589 (1980) (Brennan, J., concurring in judgment)),
which, in turn, bespeaks a “presumption of openness,” 448 U.S. at 573
(Burger, C. J., announcing judgment). The historical inquiry in Gannett,
however, was designed to discern the intent of the Framers of the Sixth
Amendment with respect to the quite different issue of whether they viewed
that provision as granting substantive rights to the public, as well as to the
accused. See 443 U.S. at 385.
“Eight justices joined in the Chief Justice's opinion. Justice Marshall
concurred in the result. See 464 U.S. at 520 (Marshall, J., concurring in
result).
in which the accused or his counsel appears before a “neutral
and detached” judicial officer. See Gerstein v. Pugh, 420 U.S.
103, 112 (1975). Throughout Anglo-American history, while
certain inquisitorial functions of police and prosecutors have
traditionally been performed in secret, judicial proceedings
have consistently been conducted in public. For centuries, the
only portion of the criminal justice process characterized by
the presence of an impartial, judicial decisionmaker was the
trial itself. As recognized in Richmond Newspapers and Press-
Enterprise I, these trials were also characterized by a tradition
of public access. See 448 U.S. at 564-67; 464 U.S. at 505. From
the “open-air meetings” of pre-Norman England, F. Pollock,
The Expansion of the Common Law 140 (1904), to the “embar-
rassingly large and unwieldy” public trials of the twelfth
through fourteenth centuries, Wells, The Origin of the Petty
Jury, 27 L.Q. Rev. 347, 356 (1911), “court day” was “one of the
great rivals of the fair or pageant in the attracting of crowds,”
E. Jenks, The Book of English Law 25 (6th ed. 1967). Even
after the jury itself gradually mutated from a body of witnesses
to an impartial trier of facts, the entire proceeding was, “[b]y
immemorial usage,” held “in open court, to which spectators
were admitted.” 2J. Bishop, New Criminal Procedure § 957 (2d
ed. 1913).
Over time, the criminal justice process at common law came
to include components other than the trial itself, components
designed primarily to enable the Crown to undertake inves-
tigations of criminal conduct. In the sixteenth century, for
example, Parliament enacted the Statutes of Philip and Mary,
which created the office of magistrate. See 1 & 2 Phil. & M., ch.
13. Prior to the passage of the Statutes in 1554 and 1555,
criminal indictments were regarded as simply commencing “a
piece of litigation between the crown and the accused,” and
proceedings were the same as in a civil action. 5 W. Hold-
sworth, A History of English Law 176 (2d ed. 1937).* The
‘Accord 2 F. Pollock & F. Maitland, The History of English Law 582-83 (2d
ed. 1899). Under the thirteenth century law of arrest, felons were summarily
arrested and jailed. “[A]ny preliminary magisterial investigation, such as
that which is now-a-days conducted by our justices of “he peace, is still in the
remote future.” /d.
Statutes, however, dramatically transformed the criminal law
by empowering the magistrate, who served as a combination
police officer and public prosecutor, to investigate crimes and
bring formal charges against the accused on behalf of the
Crown.’ The magistrate was authorized to undertake inter-
rogations of suspects and witnesses in order to determine
whether to commence a criminal prosecution. See 1 & 2 Phil. &
M., ch. 13, § 4; 2 & 3 Phil. & M., ch. 10, § 2. Although these
investigations were often referred to as “preliminary hearings”
in their day, they were decidedly inquisitorial proceedings and
formed no part of the judicial process, which continued to
commence with the trial itself. Not surprisingly, in addition to
the absence of a judicial officer, proceedings before the magis-
trate lacked all other trappings of a judicial hearing as well; not
only was the magistrate an agent of the Crown, but the accused
had no right to counsel, and was not permitted to call or cross-
examine witnesses. See 5 W. Holdsworth, supra, at 192.°
The investigatory and inquisitorial function of the magis-
trate is vividly illustrated in The Trial of Colonel Turner, 6 Har.
St. Tr. 565 (O.B. 1664). The case involved a robbery and the
magistrate was the first witness called at trial. He testified that
‘Enactment of the Statutes of Philip and Mary was precipitated by the
lawlessness of the fifteenth century. In most respects, the Statutes reflect the
influence of the law of the Continent, which employed the inquisitorial pro-
ceeding as a means of repressing crime. See 5 W. Holdsworth, A History of
English Law 169-77 (2d ed. 1937). The salient features of the Continental
procedure were “secrecy, torture, and restricted opportunities of defense.”
Id. at 174.
‘Since these so-called “preliminary hearings” in England can in no sense be
characterized as judicial proceedings, the fact that “[uJnder English common
law, the public had no right to attend” them, Gannett Co. v. DePasquale, 443
U.S. at 389; see id. at 394-95 (Burger, C.J., concurring), is of little, if any,
relevance to the tradition of public access to judicial proceedings. Indeed, to
the extent that most modern pretrial proceedings, which were largely un-
known at common law, can be compared to the English experience, the
appropriate analogy is to the criminal trial itself. For example, “the modern
suppression hearing . . . is a type of objection to evidence such as took place at
common law, and as takes place today in the case of non-constitutional
objections, in open court during trial.” /d. at 437 (Blackmun, J., concurring in
part) (emphasis in original).
~]
he was called to the scene of the crime, where the victim “put
me upon the business to examine it.” /d. at 572. The magistrate
then interrogated the victim's two servants and proceeded to
the home of the suspect, Colone! Turner:
I called him in, but he denied it; but not as a person of his
spirit, which gave me some cause of further suspicion. |
desired to search his house; nay, told him I would whether
he would or no.
Id. The next day, after receiving a tip from an informant, the
magistrate apprehended Colonel Turner, elicited a confession,
and sent him to jail. /d. at 573-76. Such investigative activity
was commonplace for magistrates in the seventeenth century
— they served, for all practical purposes, as the precursor of
the modern day policeman."
Since the function of the magistrate at common law was to
gather evidence and, ultimately, bring formal charges against
the accused, he conducted his investigations in secret.’ In this
manner, the accused was denied access to the evidence against
him, which was communicated by the magistrate only to his
colleague, the prosecutor. See 5 W. Holdsworth, swpra, at 191.
In short, the secrecy inherent in these so-called “preliminary
hearings” was designed to keep the accused ignorant of the
prosecution’ case prior to the commencement of the judicial
process. By excluding the public as well as the prisoner from
these inquisitorial proceedings, the risk that details of the
Crown's case would be leaked to the accused was minimized.
"See, e.g., The Trial of Count Coningsmark, 9 Har. St. Tr. 1 (O.B. 1682)
(niagistrate searched several houses for murder suspects and upon their
arrest took them to his home for examination); The Trial of George Busby, 8
Har. St. Tr. 525 (Assizes 1681) (magistrate broke down doors of house and
conducted search throughou. the night until suspect, a “Romish Priest,” was
found).
‘See 1 J. Stephen, A History of the Criminal Law of England 225 (1883) (“I
do not think any part of the old procedure operated more harshly upon
prisoners than the summary and secret way in which justices of the peace,
acting frequently the part of detective officers, took their examinations and
committed them for trial.”).
Once the magistrate determined to bring charges, however,
the accused was bound over for a public trial before an impar-
tial judge and jury. See T. Smith, De Republica Anglorum 85-98
(1583) (Alston ed. 1806).
Prior to the American Revolution, the administration of
justice in the colonies generally followed the prescriptions of
the Statutes of Philip and Mary." Even after the war for inde-
pendence, some courts continued to conduct inquisitorial pro-
ceedings based on the English model.’ Yet, soon after the
promulgation of the Bill of Rights, preliminary hearings in the
United States acquired judicial characteristics. In fact, the
Fifth Amendment privilege against self-incrimination itself
provided the impetus for the abolition of magisterial interroga-
tion. See Kauper, Judicial Examination of the Accused — A
Remedy for the T’ ird Degree, 30 Mich. L. Rev. 1224, 1236
(1932). In its place, the new nation developed a bifurcated
system of law enforcement in which the inquisitorial and judi-
cial functions became more clearly distinct and independent
than they had been in England. The magistrate'’s inquisitorial
and prosecutorial powers were usurped at an early stage by
“the county prosecutor as an aggressive agent of law enforce-
ment, and [by] the power and prestige of the sheriff in all
frontier communities.” R. Moley, Our Criminal Courts 20
(1930). Conversely, even before the development of the modern
police force, “[t]he idea of separation of powers, so much insis-
ted on in the American polity, made [pretrial proceedings]
judicial, with all the constitutional safeguards attaching to a
judicial proceeding.” R. Pound, Criminal Justice in America 88
(1930) (emphasis added). In short, the magistrate became a
judge, who was called upon to render, in the pretrial setting, a
detached and independent judgment in matters brought before
him. Significantly, as the magistrate evolved into a judicial
officer who presided at proceedings held prior to the trial itself,
“See, e.g., J. Goebel & T. Naughton, Law Enforcement in Colonial New
York: A Study in Criminal Procedure 1664-1776, at 340-41 (1944).
*See, e.g., United States v. White, 28 F. Cas. 588 (C.C.D. Pa. 1807) (No.
16,685).
those proceedings became decidedly “public affair{s]” in most
American jurisdictions. Geis, Preliminary Hearings and the
Press, 8 U.C.L.A. L. Rev. 397, 407 (1961). Indeed, in the few
American jurisdictions in which the court retained authority to
close pretrial proceedings to the public, it is clear that the
pc wer remained “in judicial dormancy and day-to-day disuse.”
ld. 10
Perhaps the most celebrated instance of an early pretrial
hearing in this country occurred in 1807 when the United
States sought to prosecute Aaron Burr for treason. See United
States v. Burr, 25 F. Cas. 1(C.C.D. Va. 1807) (No. 14,692). A
judicial hearing was convened by Chief Justice Marshall, who
also sat as the trial judge, to determine whether probable cause
existed to charge Burr with treason. /d. at 12 (No. 14,692a).
The court reporter gave the following account:
At ten o’clock MARSHALL, Chief Justice, took his seat
on the bench, in the court room, which was densely filled
with citizens. . . . On the suggestion of counsel that it
would be impossible to accommodate the spectators in the
court room, the chief justice adjourned to the hall of the
house of delegates.
Id. at 11. As the hearing progressed, counsel for both sides
presented argument, and the accused gave testimony. The
following day, the Chief Justice ruled that the prosecution's
evidence merely showed probable cause that Burr was guilty of
the lesser crime of “carrying on a military expedition against a
nation with whom the United States were at peace.” /d. at 15.
Undaunted, the prosecution returned two months later with
additional evidence and once again moved the court to charge
Burr with treason. See United States v. Burr, 25 F. Cas. 25
(C.C.D. Va. 1807) (No. 14,692b). Because a grand jury had
“Even the existence of a statutory mechanism authorizing closure was
limited in this country to “a numerically small bloc of states which early
adopted a unique provision of the Field Code.” Geis, Preliminary Hearings
and the Press, 8 U.C.L.A. L. Rev. 397, 407 (1961) (citing Commissioners on
Practice and Pleadings, New York Code of Criminal Procedure, 4th Rep.
§ 195 (1849)).
10
been empanelled to consider the first charge, however, defense
counsel opposed holding a second probable cause hearing based
on the newly discovered evidence. In his view,
a public examination of the evidence the district attorney
might see fit to bring forward against Col. Burr would
have a tendency to increase the prejudice already existing
in the public mind against him, and in spite of all precau-
tions this testimony would reach the ears of the grand
jury.
Id. at 26. It is plain from defense counsel’s concerns that, under
normal circumstances, the preliminary hearing would be open
to the public. Recognizing “that the result of this motion may be
publications unfavorable to the justice and to the right decision
of the case,” the Chief Justice nevertheless refused to deny the
prosecution the right to another preliminary hearing. /d. at 27.
He did not even consider closing the hearing to protect Burr
from unfair prejudice.
The American evolution of pretrial proceedings from mag-
isterial inquisitions shrouded in secrecy to public hearings
presided over by a neutral, judicial officer was duplicated
shortly thereafter in England as well. In fact, by the mid- .
nineteenth century, the public character of the English pre-
liminary hearing became one of its most celebrated features. ''
This transformation of pretrial proceedings in Britain occurred
through the combined impact of a series of legislative reforms.
By 1839, a modern police force, independent from the control of
the magistrates, was firmly established, and by 1848 the ac-
cused was afforded a privilege against self-incrimination and a
In his description of English criminal procedure after 1050, Pollock
explains:
The secret inquisitorial proceeding has become open and judicial; there
is no longer an examination of the prisoner, but a preliminary trial in
court, the police-court, which in modern times is to many citizens the
only visible and understood symbol of law and justice. The magistrate’s
office is more public than ever; the feeling that justice should be done in
the light of day has been strong enough to reassert itself after a partial
eclipse.
F. Pollock, The Expansion of the Common Law 31(1904).
ears
11
full panoply of confrontational rights during the preliminary
hearing.'* And, although the magistrate, now a judicial officer,
theoretically retained authority to exclude the public from the
preliminary hearing, see 11 & 12 Vict., ch. 42, § 19, “any use of
this power of exclusion” quickly became “uncommon,” F. Mait-
land, Justice and Police 129 (1972). Thus, in England as well as
in the United States, pretrial judicial proceedings have, since
their origins, been characterized by a presumption of openness
and free public access.
In this country, it cannot be disputed that, in the more than
170 years from the Burr case through this Court's decision in
Gannett Co. v. DePasquale, 443 U.S. 368 (1979), the closure of
pretrial proceedings in criminal cases was a virtually unheard
of phenomenon, see id. at 432 n. 11 (Blackmun, J., concurring in
part) (“only the New York courts in this case, and perhaps
some isolated others, have departed from this tradition [of
open judicial proceedings] in criminal cases”); Jn re Oliver, 333
U.S. 257, 272 n.29 (1948) (no court has excluded press and
public from criminal proceedings). Indeed, the “near uniform
practice in the federal and state court systems has been to
conduct pretrial criminal proceedings in open court.” State v.
Williams, 93 N.J. 39, 55, 459 A.2d 641, 649 (1983). According-
In 1829, the Metropolitan Police Act of Peel was enacted, and first
differentiated the functions of magistrate and policeman. See 10 Geo. 4, ch. 44
(1829). By 1839, all control over the police had been transferred from the
magistrates to police commissioners. R. Moley, Our Criminal Courts 19
(1930). The Prisoners’ Counsel Act, 6 & 7 Will. 4, ch. 114 (1836), permitted all
accused persons to inspect depositions to be used against them. See 1 W.
Holdsworth, supra note 4, at 297. Finally, the Indictable Offences Act, 11 &
12 Vict., ch. 42 (1848), precluded the magistrate from examining the accused,
although the accused was permitted to make a statement. Moreover, the
accused was granted the right to call witnesses and to cross-examine the
prosecution's witnesses. /d.; see 1 J. Stephen, supra note 7, at 221.
“See, e.g., Application of the Herald Co., 734 F.2d 93 (2d Cir. 1984); /n re
Giobe Newspaper Co., 729 F.2d 47 (1st Cir. 1984); United States v. Chagra,
701 F.2d 354 (5th Cir. 1983); United States v. Brooklier, 685 F.2d 1162 (9th
Cir. 1982); United States v. Criden, 675 F.2d 550 (3a Cir. 1982); Phoenix
Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563 (1971); Arkansas
Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983); Star J.
12
ly, this Court should forthrightly declare that the tradition of
openness that has always characterized judicial pretrial pro-
ceedings in the criminal justice process has earned “‘the favora-
ble judgment of experience,’” Globe Newspaper Co. v. Superi-
or Court, 457 U.S. at 605 (quoting Richmond Newspapers,
Inc. v. Virginia, 448 U.S. at 589 (Brennan, J., concurring in
judgment)), and has created a presumptive right of public
access under the First Amendment.
C. Access To Judicial Proceedings By The Press And Pub-
lic Promotes The Integrity Of The Criminal Justice
Process And Our System Of Self-Government.
The criminal justice system in this country has over-
whelmingly become a pretrial process. “Indeed, most criminal
Publishing Corp. v. County Court, 197 Colo. 234, 591 P.2d 1028 (1979); State
v. Burak, 38 Conn. Supp. 627, 431 A.2d 1246 (Super. 1981); United States v.
Edwards, 430 A.2d 1321 (D.C. 1981), cert. denied, 455 U.S. 1022 (1982);
Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982); R.W. Page
Corp. v. Lumpkin, 249 Ga. 576, 292 S.E.2d 815 (1982); Gannett Pacific Corp.
v. Richardson, 59 Hawaii 224, 580 P.2d 49 (1978); State v. Porter Superior
Court, 274 Ind. 408, 412 N.E.2d 748 (1980); Ashland Publishing Co. v.
Asbury, 612 S.W.2d 749 (Ky. App. 1980); Buzbee v. Journal Newspapers,
Inc., 297 Md. 68, 465 A.2d 426 (1983); Minneapolis Star & Tribune Co. v.
Kammeyer, 341 N.W.2d 550 (Minn. 1983); State ex rel. Smith v. District
Court, 654 P.2d 982 (Mont. 1982); Keene Publishing Corp. v. Cheshire County
Superior Court, 119 N.H. 710, 406 A.2d 137 (1979); State v. Williams, 93 N.J.
39, 459 A.2d 641 (1983); Westchester Rockland Newspapers, Inc. v. Leggett,
48 N. Y.2d 430, 399 N.E.2d 518, 423 N. Y.S.2d 630 (1979); State ex rel. Dayton
Newspapers, Inc. v. Phillips, 46 Ohio St. 2d 457, 351 N.E.2d 127 (1976);
Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318, cert. denied, 449 U.S.
992 (1980); Rapid City J. Co. v. Circuit Court, 283 N.W.2d 563 (S.D. 1979):
Kearns-Tribune Corp. v. Lewis, 685 P.2d 515 (Utah 1984); Herald Ass'n v.
Ellison, 138 Vt. 529, 419 A.2d 323 (1980); Richmond Newspapers, Inc. v.
Virginia, 222 Va. 574, 281 S.E.2d 915 (1981); Federated Publications, Inc. v.
Kurtz, 94 Wash. 2d 51, 615 P.2d 440 (1980); State ex rel. Herald Mail Co. v.
Hamilton, 267 S.E.2d 544 (W. Va. 1980); Williams v. Stafford, 589 P.2d 322
(Wyo. 1979); Cal. Penal Code § 868 (West 1982); Mich. Stat. Ann. § 27A.1420
(Callaghan 1980); Wis. Stat. Ann. § 757.14 (West 1981); Revised Report of the
Judicial Conference Committee on the Operation of the Jury System on the
“Free Press-Fair Trial” Issue, 87 F.R.D. 519 (1980); American Bar Ass'n,
Standards Relating to the Administration of Justice, Fair Trial and Free
Press, Standard 8-3.2 (2d ed. 1980).
13
prosecutions consist solely of pretrial procedures.” United
States v. Criden, 675 F.2d 550, 557 (3d Cir. 1982) (citing Gan-
nett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (Burger, C.J.,
concurring)). As judicial resources have become increasingly
burdened and a panoply of procedural safeguards has been
afforded criminal defendants, courts and counsel necessarily
have become reliant on pretrial judicial proceedings for the fair
and efficient dispensation of criminal justice. See, e.g.. Gers-
tein v. Pugh, 420 U.S. 103, 122 n.23 (1975); State v. Williams, 93
N.J. 39, 53-54, 459 A.2d 641, 648 (1983); C. Whitebread, Crimi-
nal Procedure § 21.01 (1980).
At least eighty-five percent— and perhaps as many as nine-
ty-five percent— of all criminal cases are disposed of before
trial. Gannett Co. v. DePasquale, 443 U.S. at 397 (Burger, C.J.,
concurring); C. Whitebread, swpra, § 21.01; 1 W. LaFave & J.
Israel, Criminal Procedure § 1.4 (1984); U.S. Department of
Justice, The Prosecution of Felony Arrests, 1980, at 25 (1985).
In many of these cases, “the pretrial hearing is the only advers-
ary proceeding the accused will have in resolving his case.”
United States v. Criden, 675 F.2d at 557. Such proceedings may
take many forms, among them suppression, preliminary, bail,
due process, entrapment, competency and pretrial detention
hearings. See Note, First Amendment Right of Access to Pre-
trial Proceedings in Criminal Cases, 32 Emory L. J. 619
(1983).
This Court has recognized that pretrial hearings “often are
as important as the trial itself.” Waller v. Georgia, 104 S.Ct.
2210, 2215 (1984)."* In Coleman v. Alabama, 399 U.S. 1, 8
(1970), for example, the Court asserted that a preliminary
hearing held “to determine whether there is sufficient evidence
against the accused to warrant presenting his case to the grand
jury” may well prevent a defendant from being prosecuted at
all. Even if a pretrial hearing is not determinative of the ulti-
mate result of a criminal prosecution, the outcome of the hear-
“In Waller, the Court noted that “in many cases, the suppression hearing
was the on/y trial because the defendants thereafter pleaded guilty pursuant
to a plea bargain.” 104 S.Ct. at 2216.
14
ing still may have great significance to both the accused and the
public generally. See, e.g., Gerstein v. Pugh, 420 U.S. at 114.
In view of the substantial role played by pretrial judicial
proceedings in the criminal justice system, it follows that “[t he
principles that support a right of access to trials apply with
equal force to pretrial proceedings.” United States v. Edwards,
430 A.2d 1321, 1344 (D.C. 1981), cert. denied, 455 U.S. 1022
(1982). The distinction between trials and other proceedings “is
not necessarily dispositive, or even important, in evaluating
the First Amendment issues.” Press-Enterprise I, 464 U.S. at
516 (Stevens, J., concurring).'* In short, “{pJublic access to
judicial proceedings serves an amalgam of functions, functions
which are as applicable to critical pretrial hearings as to trials.”
United States v. Edwards, 430 A.2d 1321, 1344 (D.C. 1981),
cert. denied, 455 U.S. 1022 (1982).'*
1. Open judicial proceedings provide a fundamental -
safeguard for the fair conduct of the criminal justice
system.
Public scrutiny is an essential safeguard of the fairness and
quality of the criminal justice process. See Globe Newspaper
Co. v. Superior Court, 457 U.S. at 606. Public access to judicial
proceedings in criminal cases discourages misconduct by po-
“While a history of openness may alone compel a right of access to judicial
proceedings, it is not a prerequisite, for the right of access is based only
partly on the historical openness of the criminal ccurts. In Globe Newspaper
Co. v. Superior Court, 457 U.S. 596 (1982), for example, this Court applied
the First Amendment right of access to a trial involving the alleged rape of
two teenaged girls, despite “a long history of exclusion of the public from
trials involving sexual assaults, particularly thuse against minors,” id. at 614
(Burger, C.J., dissenting). The Court held that “[wJhether the First Amend-
ment right of access to criminal trials can be restricted in the context of any
particular trial . . . depends not on the historical openness of that type of
criminal triatbut rather on the state interests assertedly supporting the
restriction.” Jd. at 605 n.13.
‘*In Waller v. Georgia, 104 S.Ct. 2210, 2215 (1984), the Court recognized
that those same structural values that undergird its decisions recognizing a
First Amendment right of access Co trial proceedings “are no less pressing in
a hearing to suppress wrongfuily seized evidence.”
—
15
lice, prosecutors and judges, “encourages witnesses to come
forward and discourages perjury.” Waller v. Georgia, 1048. Ct.
at 2215. As this Court has declared, “‘[wJithout publicity, all
other checks are insufficient: in comparison of publicity, all
other checks are of small account.” Richmond Newspapers,
Inc. v. Virginia, 448 U.S. at 569 (Burger, C.J., announcing
judgment) (quoting J. Bentham, Rationale of Judicial Evidence
524 (1827)).
Indeed, public scrutiny of judicial decisionmaking and law
enforcement activities may nowhere be more crucial than at a
preliminary hearing where an initial judicial determination is
made either to subject the accused to the ordeal of a trial or to
set him free, see, e.g., Coleman v. Alabama, 399 U.S. 1, 8
(1970); at an entrapment, due process or suppression hearing,
where the propriety of the government's conduct is typically at
issue, see, e.g., Waller v. Georgia, 104S.Ct. 2210 (1984); or at a
bail or pretrial detention hearing, which may result in the
prolonged imprisonment of the accused, see, e.g., United
States v. Edwards, 430 A.2d 1321 (D.C. 1981), cert. denied, 455
U.S. 1022 (1982). These proceedings, if incompetently or cor-
ruptly conducted, can be as destructive of the rights of the
accused and the public as the trial itself.
Moreover, pretrial judicial proceedings are conducted with-
out the benefit of a jury, long recognized as “‘an inestimable
safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge.” Williams v.
Florida, 399 U.S. 78, 100 (1970) (quoting Duncan v. Loui-
siana, 391 U.S. 145, 159 (1968)). Thus, absent public access to
pretrial criminal proceedings, many consequential decisions
and actions of the courts and their officers “may go un-
scrutinized.” United States v. Criden, 675 F.2d at 557.
Pretrial proceedings, such as preliminary and suppression
hearings, commonly involve live testimony and cross-examina-
tion. See Y. Kamisar, W. LaFave & J. Israel, Modern Criminal
Procedure 866-69, 884, 963-72 (5th ed. 1980). Indeed, this
Court has expressly noted the importance of the preliminary
hearing in preserving testimony, impeaching witnesses, and
16
enabling the defendant to discover important witnesses. See
Coleman v. Alabama, 399 U.S. at 9. Hence, the salutary
effects of publicity in “encourag[ing] witnesses to come for-
ward and discourag[ing] perjury” are as important at these
stages of the criminal process as at the trial. See Waller v.
Georgia, 104 S.Ct. at 2215."
Information gained by the public at even the most “routine”
judicial proceedings has served to root out official misconduct
beyond the bounds of the criminal justice process itself. The
Watergate scandal might well have escaped detection if the
original bail hearing of the Watergate burglars had not been
open to the press and public. Following the June 17, 1972
break-in at the headquarters of the Democratic National Com-
mittee, Washington Post reporter Bob Woodward attended a
presumably perfunctory bail hearing. At that hearing, Wood-
ward learned the names of the burglary suspects, that one of _
the suspects was a “security consultant” and a retired CIA
employee, that the burglary may have been politically moti-
vated, and that, curiously, the suspects were represented by
retained counsel. See C. Bernstein & R. Woodward, All The
President’s Men 16-18 (1974). The first news report concerning
the Watergate burglary appeared the following day in The
Washington Post, see Wash. Post, June 18, 1972, at Al, col. 1,
which undertook an investigation that eventually would help
uncover “an unprecedented scandal at the highest levels of
government,” United States v. Haldeman, 559 F.2d 21, 51
(D.C. Cir. 1976) (en banc) (per curiam), cert. denied, 431 U.S.
933 (1977).
'"To ensure the fair and impartial administration of justice, there is also an
“imperative need for total and absolute independence of judges . . . in any
phase of the decisional function.” Chandler v. Judicial Council, 398 U.S. 74,
84 (1970). Public scrutiny of the pretrial adjudicatory process helps ensure
that the judicial branch is not subject to undue influence from officials of the
other departments of government, that judicial decisionmakers remain “neu-
tral and detached,” Gerstein v. Pugh, 420 U.S. 103, 112 (1975), and that a
judge's decisions are not “based on secret bias or partiality,” Richmond
Newspapers, Inc. v. Virginia, 448 U.S. at 569 (Burger, C.J., announcing
judgment).
17
2. Open judicial proceedings in criminal cases facili-
tate the free discussion of public affairs.
Underlying the First Amendment right of access to judicial
proceedings in criminal cases “is the commo:. understanding
that ‘a major purpose of [the First] Amendment was to protect
the free discussion of governmental affairs.’” Globe Newspaper
Co. v. Superior Court, 457 U.S. at 604 (quoting Mills v. Ala-
bama, 384 U.S. 214, 218 (1966)). Specifically, “[o]ne of the
demands of a democratic society is that the public should know
what goes on in the courts by being told by the press what
happens there.” Richmond Newspapers, Inc. v. Virginia, 448
U.S. at 573 n.9 (Burger, C.J., announcing judgment). Thus, the
right of access to judicial proceedings “ensure(s] that [the]
constitutionally protected ‘discussion of governmental affairs’
is an informed one.” Globe Newspaper Co. v. Superior Court,
457 U.S. at 605.
In our system of government, an independent judiciary is
entrusted with responsibility for bringing “offenders . . . to
account for their criminal conduct.” Press-Enterprise I, 464
U.S. at 509, holding “the balance nice, clear and true between
the state and the accused,” Tumey v. Ohio, 273 U.S. 510, 532
(1927), and defending individual liberties against official
abuses, Johnson 'v. United States, 333 U.S. 10, 13-14 (1948),
responsibilities not always shared by the other participants in
the criminal justice system. For the public to be fully informed
about the system's performance of these vital functions, it must
be able to view the entire judicial process, a process that is now
typically completed before trial. Indeed, issues of prosecutorial
misconduct, exclusions of confessions and illegally obtained
evidence, or the incompetence of the accused to stand trial, all
usually disposed of in pretrial hearings, are of greater signifi-
cance to the free discussion of public affairs in many cases than
the guilt or innocence of the accused. See Journal Newspapers,
Inc. v. State, 54 Md. App. 98, 109, 456 A.2d 963, 969 (1983).
A variety of significant issues of public policy may be raised
in pretrial criminal proceedings. In Los Angeles, for example,
a preliminary hearing lasting more than nineteen months has
18
led to a nationwide examination of the problem of child abuse."
The hearing has involved the alleged sexual abuse of scores of
preschool children over a ten-year period at the McMartin
Preschool in Manhattan Beach, California." The so-called
“McMartin” case has sparked a public debate concerning al-
leged inefficiency, unfairness, and delay in the preliminary
hearing process,” as well as “the judicial system's ability to
deal effectively and fairly with the emotionally charged issue of
allegations of sexual abuse of children,” Reporter's Notebook: 6
Months of California Case, New York Times, Feb. 13, 1985,
§ A, at 16, col. 2.7 Prompted by the McMartin preliminary
hearing, the California legislature passed controversial reform
legislation allowing certain child victims of sexual abuse to
testify by closed circuit television.” Testimony at the prelimin-
ary hearing also helped engender a nationwide examination of
the quality of day care facilities” and resulted in the creation of
model day care guidelines by the United States Department of
Health and Human Services.* These ramifications of public
access to the preliminary hearing in the McMartin case illus-
trate the necessary dependence of an informed discussion of
public affairs on open judicial proceedings.
Ultimately, public access to pretrial judicial proceedings
enhances “the appearance of fairness so essential to public
“See, e.g., Child Molestation Case A Long Way From Trial; Preliminary
Hearings Are 9 Months Old, Wash. Post, May 10, 1985, § 1, at El; Boy’s
Responses At Sex Abuse Trial Underscore Lega! Conflict, N.Y. Times, Jan.
27, 1985, § 1, part 1, at 14, col. 1; Reporter's Notebook: 6 Months of California
Case, N.Y. Times, Feb. 13, 1985, § A, at 16, col. 2.
'*See Child Abuse Case Marked by Delays, N.Y. Times, Sept. 9, 1984, § B,
at 21, col. 1.
*See, e.g., N.Y. Times, Sept. 9, 1985, § B, at 21, col. 1; Wash. Post, May
10, 1985, § 1, at El.
“See also N.Y. Times, Jan. 27, 1985, § 1, part 1, at 14, col. 1.
See Wash. Post, May 10, 1985, § 1, at E1; N.Y. Times, Sept. 9, 1985, § B,
at 21, col. 1.
“See, e.g., Increased Demand For Day Care Prompts A Debate On Regu-
lation, N.Y. Times, Sept. 2, 1984. § 1, part 1, at 1, col. 1.
*See, e.g., Boy Recants Testimony In Child Abuse Case, N.Y. Times, Jan.
25, 1985, § A, at 10, col. 6.
19
confidence” in the criminal justice system, Press-Enterprise I,
464 U.S. at 508, and serves “an important prophylactic pur-
pose, providing an outlet for community concern, hostility, and
emotion,” Richmond Newspapers, Inc. v. Virginia, 448 U.S. at
571 (Burger, C.J., announcing judgment). If a defendant is
unexpectedly released following a closed hearing, such an
event “can cause a reaction that the system at best has failed
and at worst has been corrupted.” Jd. Conversely, since plea
bargaining has become the predominant means of resolving
criminal cases, see U.S. Department of Justice, The Prosecu-
tion of Felony Arrests, 1980, at 18 (1985), a pretrial hearing is
typically the only occasion at which the community can satisfy
its “urge to retaliate and desire to have justice done,” Press-
Enterprise I, 464 U.S. at 509. “[R]esults alone” cannot assuage
“the natural community desire for ‘satisfaction,’”” Richmond
Newspapers, Inc. v. Virginia, 448 U.S. at 571 (Burger, C.J.,
announcing judgment), and open proceedings have proven to be
the most effective mechanism for ensuring public awareness
and acceptance.
Il. JUDICIAL PROCEEDINGS IN CRIMINAL CASES
CANNOT BE CLOSED TO THE PRESS AND PUBLIC
UNLESS:
A. OPEN PROCEEDINGS WOULD CREATE A
CLEAR AND PRESENT DANGER TO THE FAIR-
NESS OF THE TRIAL;
B. NO LESS RESTRICTIVE ALTERNATIVES TO
CLOSURE ARE AVAILABLE; AND
C. CLOSURE WILL EFFECTIVELY PROTECT
AGAINST THE PERCEIVED HARM.
Because of the constitutional presumption against barring
the press and public from judicial proceedings in criminal
cases, the justification for closure “must be a weighty one.”
Globe Newspaper Co. v. Superior Court, 457 U.S. at 606. The
need for closure must be demonstrably “compelling” and any
measures to accommodate that need must be “narrowly tai-
lored.” Jd. at 607. To ensure protection of precious First
Amendment rights, it is crucial that appellate courts “impress
20
upon trial courts the need for meticulous and conscientious
decision-making in evaluating motions for closure.” State v.
Williams, 93 N.J. 39, 70 n.17, 459 A.2d 641, 657 n.17 (1983).
Thus, a number of courts have adopted the standards proposed
by the American Bar Association for determining when “clo-
sure is essential to preserve higher values.” Press-Enterprise
I, 464 U.S. at 510.% Under the ABA test, a court may close a
pretrial proceeding and seal the record only if the party seek-
ing closure can meet the burden of proving: (A) “the dissemina-
tion of information from the pretrial proceeding and its record
would create a clear and present danger to the fairness of the
trial,” and (B) “the prejudicial effect of such information on trial
fairness cannot be avoided by any reasonable alternative
means.”
In addition, an infringement of First Amendment liberties
can never be tolerated if it will realistically be unable to accom-
plish its intended purpose. See Nebraska Press Association v.
Stuart, 427 U.S. 539, 565-67 (1976); Smith v. Daily Mail Pub-
lishing Co., 443 U.S. 97, 104-05 (1979); id at 110 & n.3 (Rehn-
quist, J., concurring). Finally, the trial court must articulate
the reasons for closure on the record in “findings specific
enough that a reviewing court can determine whether the
*See, e.g., In re P.R. v. District Court, 637 P.2d 346, 352-53 (Colo. 1981)
(en bane); Kansas City Star Co. v. Fossey, 230 Kan. 240, 247-50, 630 P.2d
1176, 1181-84 (1981); State ex vel. Smith v. District Court, 654 P.2d 982, 987
(Mont. 1982).
*American Bar Ass'n, Standards Relating to the Administration of Jus-
tice, Fair Trial and Free Press, Standard 8-3.2 (2d ed. 1980). See United
States v. Brooklier, 685 F.2d 1162, 1167 (9th Cir. 1982). The Ninth Circuit in
Brooklier articulated a test permitting closure only when a court makes
findings, articulated in the record, that (A) there is a substantial probability
that a compelling interest will suffer irreparable harm absent closure; (B) no
adequate alternatives to closure are available; and (C) closure will effectively
protect against the perceived harm. /d. at 1167 (quoting Gannett Co. v.
DePasquale, 443 U.S. at 440-42 (Blackmun, J., concurring in part)). See also
28 C.F.R. § 50.9 (1985) (requiring United States attorneys to oppose closure
of any federal trial, pre- or post-trial evidentiary hearing, or plea or sentenc-
ing proceeding, with specified exceptions, except in those “very few cases”
where “closure is plainly essential to the interests of justice”).
21
closure order was properly entered.” Press-Enterprise I, 464
U.S. at 510.7
A. Pretrial Publicity Will Rarely, If Ever, Prevent A Fair
Trial.
This Court has squarely held that “pretrial publicity — even
pervasive, adverse publicity — does not inevitably lead to an
unfair trial.” Nebraska Press Association v. Stuari, 427 U.S. at
554. Jurors need not begin the trial unaware of news reports
regarding the crime with which the defendant is charged, even
though those reports contain material inadmissible at trial. See
7Although the California Supreme Court did not discuss in its opinion
below whether the record in this case contains sufficient evidence to meet its
test of “reasonable likelihood of prejudice” to the defendant's fair trial right,
the court of appeal concluded that the test was met in this instance by the
mere existence of extensive, although factual, news coverage of the alleged
crime over a two-year period. See Press-Enterprise Co. v. Superior Court,
150 Cal. App. 3d 888, 198 Cal. Rptr. 241, 248-149 (1984). This standard utterly
“ignore(s] the real difference in the potential for prejudice” between largely
factual publicity and “that which is invidious or inflammatory.” Murphy v.
Florida, 421 U.S. 794, 800 n.4 (1975). For all practical purposes, the Califor-
nia courts’ standard at best creates a presumption of closure of pretrial
proceedings in any publicized criminal case; at worst, it is a requirement of
closure under such circumstances. For, as this Court has noted, to demand
that jurors in such cases be “totally ignorant of the facts” of the case to be
tried at the time they are sworn “‘would be to establish an impossible
standard.” Jd. at 800 (quoting /rvin v. Dowd, 366 U.S. 717, 723 (1961)).
In addition, the California Supreme Court asserted that, because “(t]he
problem of potential prejudice to the defendant is substantially different in
relation to public trials than it is in relation to public preliminary hearings,”
Press-Enterprise Co. v. Superior Court, 37 Cal. 3d 772, 776, 691 P.2d 1026,
1028, 209 Cal. Rptr. 360, 362 (1984), the First Amendment is inapplicable to
preliminary hearings. Assuming arguendo that news coverage of preliminary
hearings produces a greater risk of prejudice than does trial publicity, even a
compelling governmental interest “does not justify a mandatory closure rule,
for it is clear that the circumstances of the particular case may affect the
significance of the interest. A trial court can determine on a case-by-case
basis whether closure is necessary . . . .” Globe Newspaper Co. v. Superior
Court, 457 U.S. at 608. The concerns of the California Supreme Court can be
adequately “addressed by balancing the need for closure against the right of
access, not by refusing to recognize such a right.” United States v. Edwards,
430 A.2d 1321, 1344 (D.C. 1981), cert. denied, 455 U.S. 1022 (1982).
22
Murphy v. Florida, 421 U.S. 794, 799 (1975). As this Court has
stated, even if pretrial publicity would likely create in the
minds of all prospective jurors a “preconceived notion as to the
guilt or innocence of an accused,” that fact, “without more,” is
insufficient to demonstrate a violation of the accused's right toa
fair trial. Irvin v. Dowd, 366 U.S. 717, 723 (1961). “It is suffi-
cient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.” Jd.
Empirical research reinforces this Court's traditional skep-
ticism concerning the prejudicial impact of pretrial publicity.
These studies “indicate that for the most part juries are able
and willing to put aside extraneous information and base their
decisions on the evidence.” R. Simon, The Jury: Its Role in
American Society 117 (1980). Accord J. Buddenbaum, D.
Weaver, R. Holsinger & C. Brown, Pretrial Publicity and
Juries: A Review of Research 2 (1981) [hereinafter cited as J.
Buddenbaum]. For example, an experiment at the University
of Minnesota identified no difference in the verdict patterns of
jurors exposed to prejudicial news stories before a mock trial
and jurors who were not so exposed. See Kline & Jess, Preju-
dicial Publicity: Its Effect on Law School Mock Juries, Jour-
nalism Q., Spring 1966, at 113-16. Another study utilizing
subjects drawn from local voter registration lists found that, to
the extent jurors are influenced by sensational news stories
before the trial, the trial process virtually eliminates any influ-
ence of the stories and leads to a verdict based solely on the
trial evidence. See Simon, Murder, Juries, and the Press,
Trans-Action, May-June 1966, at 40. “The results show that
when ordinary citizens become jurors, they assume a special
role in which they apply different standards of proof, more
vigorous reasoning, and greater detachment.” R. Simon, sw-
pra, at 117. Other studies have produced similar findings.*
*See, e.g., The Men at the Bar Meeting Debate Gannett v. DePasquale, The
Quill, March 1980, at 8; W. Grady, Prejudicial Pretrial Publicity: Its Effects
on Juries and Jurors (1972) (unpublished thesis, Northwestern University);
Simon & Eimermann, The Jury Finds Not Guilty: Another Look at Media
Influence on the Jury, Journalism Q., Summer 1971, at 343; S. Riley, The
Free Press-Fair Trial Controversy: A Discussion of the Issues and an Exam-
ination of Pretrial Publicity by Survey Research (1970) (unpublished Ph.D.
dissertation, University of North Carolina); Kaplan, Of Babies and Bath-
water, 29 Stan. L. Rev. 621 (1977); Wilcox, The Press, the Jury, and the
Behavioral Sciences, Journalism Monographs, Oct. 1968, at 20.
93
Moreover, research indicates that prospective jurors exposed
to pretrial media coverage of a criminal case are less likely to
prejudge the case than those who learned about it from other
second-hand accounts. See Riley, Pretrial Publicity: A Field
Study, Journalism Q., Spring 1973, at 17.
Such findings are emphatically confirmed by actual experi-
ence. Despite substantial adverse pretrial publicity, the trials
of such notable criminal defendants as John | sLorean, John
Hinkley, Claus Von Bulow, Dan White, Maurice Stans, John
Connally and Angela Davis all ended in verdicts of acquittal.
“These verdicts may be.the most reliable and powerful data we
have about jurors ability to withstand pretrial publicity.” R.
Simon, supra, 117-18.
In the DeLorean case, for example, a poll taken before the
trial, and before a major television network aired a highly
incriminating videotape, indicated that ninety-two percent of
those living in the trial locale were familiar with the case and
seventy percent believed the defendant was guilty. See Brill,
Inside the DeLorean Jury Room, Am. Law., Dec. 1984, at 1.
Yet, following a four-month trial, the jury returned a verdict of
not guilty. Jd. Similarly, a survey of twenty trials in the Chicago
area that were preceded by “massive pretrial publicity” found
that in all twenty cases, the defendants were acquitted. See The
Men at the Bar Meeting Debate Gannett v. DePasquale, The
Quill, March 1980, at 8.
Even when publicity from a sensational case arguably satu-
rates a community, many potential jurors usually are not even
aware of the existence of press coverage. See CBS, Inc. v.
United States District Court, 729 F.2d 1174, 1179 (9th Cir.
1983). In one of the recent “Abscam” prosecutions of con-
gressmen and other public officials on charges arising from an
elaborate F.B.I. undercover “sting” operation, for example,
the Second Circuit concluded that, despite extensive media
coverage, “only about one-half of the prospective jurors indi-
cated that they had ever heard of Abscam. . . [and] only eight
or ten [of those] had anything more than a most generalized
kind of recollection what it was all about.” Application of Na-
tional Broadcasting Co., 635 F.2d 945, 948 (2d Cir 1980).
24
Accord United States v. Mitchell, 551 F.2d 1252, 1262 n.46
(D.C. Cir. 1976), rev’d on other grounds, 435 U.S. 589 (1978)
(“it would be possible to empanel a jury whose members had
never even heard the [Watergate] tapes”).
Only on rare occasions are convictions so tainted by preju-
dicial publicity that they must be reversed. Nebraska Press
Association v. Stuart, 427 U.S. at 554; see United States v.
Haldeman, 559 F.2d 31, 60-61 & n.32 (D.C. Cir. 1976) (en banc)
(per curiam), cert. denied, 431 U.S. 933 (1977). Indeed, a study
of 63,000 appeals of criminal convictions in-all fifty states over a
five-year period found that in only twenty-one cases did the
states’ highest appellate courts overturn convictions based all
or in part on prejudicial publicity. See Spencer, Coverage Sel-
dom Cause for Conviction Reversal, Presstime, Oct. 1982, at
16. In only 368 cases did defense attorneys even raise the issue
of prejudicial publicity. Jd. Notably, only once has this Court
reversed a conviction because it found that pretrial publicity,
standing alone, made a fair adjudication impossible. Sez
Rideau v. Louisiana, 373 U.S. 723 (1963).” Thus, both em-
In Rideau, film of a police interrogation of the defendant, in which he
confessed to murder, kidnapping, and robbery, was broadcast on three con-
secutive days by local television stations. Because the Court concluded that
“this spectacle . . . in a very real sense was Rideau’s trial,” it held that the
accused's actual trial became “but a hollow formality.” 373 U.S. at 726. Even in
this extreme case, Justices Harlan and Clark dissented on the ground that
the defendant's right to a fair trial had not been violated, id. at 727-33, and the
majority noted that a change of venue would have adequately protected that
right, id. at 727. All other cases in which this Court has invalidated convic-
tions because of violations of defendants’ fair trial rights have turned on
factors other than the presence of pretrial publicity. See, e.g., Sheppard v.
Maxwell, 384 U.S. 333 (1966).
On other occasions, this Court has found trials to be fair despite jurors
admitted predisposition against the accused. See, e.g., Murphy v. Florida,
421 U.S. 794 (1975) (no due process violation despite jurors’ knowledge of
defendant's criminal record and admissions by several jurors that such know|-
edge probably would influence the verdict); Beck v. Washington, 369 U.S.
541, 579-88 (1962) (Douglas , J., dissenting) (due process claim rejected by
Court despite unprecedented pretrial publicity which “thoroughly dis-
credited” defendant, and failure of trial judge to admonish jurors regarding
publicity and bias); Strobie v. California, 343 U.S. 181, 199-202 (1952)
(Frankfurter, J., dissenting) (due process claim rejected despite “notorious
widespread public excitement” and sensational news coverage of defendant's
alleged sex crime).
aa
25
pirical research and practical experience teach that pretrial
publicity rarely, if ever, poses a serious threat to a criminal
defendant's right to a fair trial.
In the instant case, the courts below dismissed objections to
the language of the closure standard invoked by a trial judge as
squabbles over semantics. See, e.g., Press-Enterprise Co. v
Superior Court, 37 Cal. 3d 772, 781, 691 P.2d 1026, 1032, 209
Cal. Rptr. 360, 366 (1984). Given the demonstrated im-
probability that pretrial publicity will even place a criminal
defendant's right to a fair trial in jeopardy, however, the sub-
stantive standard applied by the trial judge assumes crucial
importance. Unless trial courts understand that closure is only
appropriate on those rare occasions when the defendant's con-
stitutional rights are in fact endangered, they will continue to
; subordinate the public's acknowledged First Amendment right
of access to the remote possibility that another constitutional
right may otherwise be infringed. In short, as the ABA has
recognized by adopting a “clear and present danger” standard,
the test for closure miust have “teeth” so that trial judges will
apply it diligently to the facts of concrete cases with an in-
formed appreciation of its purpose.
B. Closure Is Justified Only If No Less Restrictive Alter-
natives Are Available.
“In the overwhelming majority of criminal trials, pretrial
publicity presents few unmanageable threats” to the rights of
the accused. Nebraska Press Association v. Stuart, 427 U.S. at
551. Consequently, in order to justify closure of any portion of a
pretrial proceeding, the court must first consider and reject
alternatives to closure that are less restrictive of the exercise of
First Amendment rights. See Richmond Newspapers, Inc. v.
Virginia, 448 U.S. at 580-81 (Burger, C.J., announcing judg-
ment); Press-Enterprise I, 464 U.S. at 511. These alternatives
include “searching questioning of prospective jurors” during
voir dire “to screen out those with fixed opinions as to guilt or
innocence,” Nebraska Press Association v. Stuart, 427 U.S. at
564; “emphatic and clear instructions on the sworn duty of each
juror to decide the issues only on evidence presented in open
i court,” id.; change of trial venue to a locale less exposed to
—_
26
pretrial publicity, id. at 563; “postponement of the trial to allow
public attention to subside,” id. at 563-64; and sequestration of
jurors, id. at 564. Moreover, the trial court retains wide lati-
tude to craft other alternatives to closure in order to minimize
the effect of pretrial publicity. See, e.g., Sheppard v. Maxwell,
384 U.S. 333, 358 (1966).
Foremost among the alternatives to closure is voir dire.
Courts regularly rely upon carefully conducted voir dire as the
most effective means to “screen out” individuals who may have
been prejudiced by pretrial news reports. See, e.g., Patton v.
Yount, 104 S. Ct. 2885 (1984); Murphy v. Florida, 421 U.S.
794, 800-04 (1975). Research data demonstrate that “the effects
of any pretrial publicity can be decreased, if not completely
removed” by such “careful voir dire examination.” J. Budden-
baum, supra, at 11; see Padawer-Singer, Singer & Singer, Voir
Dire by Two Lawyers: An Essential Safeguard, Judicature,
April 1974, at 386.
Empirical studies also provide evidence of how careful in-
structions and admonitions can be effective in ensuring that
jurors give weight only to the evidence before them. See, e.g.,
Simon, Murder, Juries, and the Press, Trans-Action, May-
June 1966, at 40. The presumption that jurors will follow prop-
er and adequately explained instructions is a cornerstone of the
criminal judicial system. See Nebraska Press Association v.
Stuart, 427 U.S. at 564.
This Court has recognized that the passage of time alone
substantially dilutes any effect of adverse news coverage. See
Patton v. Yount, 1048S. Ct. at 2889-90; Stroble v. California, 343
U.S. 181, 191-94 (1952). Sequestration, of course, can be em-
ployed only after the jury has been selected. Nevertheless,
some courts have opted for sequestration by postponing pre-
trial proceedings until the jury has been sworn. See, ¢.g.,
Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318, cert.
denied, 449 U.S. 992 (1980). This approach eliminates any
possibility of prejudice to the accused without infringing the
public’s First Amendment rights. Even if the jury is not se-
questered during pretrial proceedings, sequestration still “en-
27
hances the likelihood of dissipating the impact of pretrial pub-
licity and emphasizes the elements of the jurors’ oaths.”
Nebraska Press Association v. Stuart, 427 U.S. at 564. Finally,
this Court has encouraged a change of venue where pretrial
publicity is likely to prevent the empanelling of an impartial
jury. See, e.g., Groppi v. Wisconsin, 400 U.S. 505 (1971);
Rideau v. Louisiana, 373 U.S. 723 (1963).
In the instant case, the trial court did not consider any
alternatives to closure of a forty-one day preliminary hearing.
This fact alone warrants invalidation of the closure order. See
Press-Enterprise I, 464 U.S. at 511. Post hoc assertions by the
California Court of Appeal that the trial court somehow bal-
anced the public's right to an open hearing against the defen-
dant’s fair trial right “cannot satisfy the deficiencies in the trial
court's record.” Waller v. Georgia, 104S.Ct. at 2217 n. 8. In any
event, neither appellate court below examined the record for
itself to determine whether probing voir dire or careful jury
instructions would adequately protect the defendant's rights.
Moreover, neither appellate court even considered a con-
tinuance, change of venue or sequestration to be legitimate
alternatives to closure, despite the fact that this Court has
repeatedly invoked precisely these mechanisms as judicial re-
sponses preferable to the infringement of First Amendment
rights, see Nebraska Press Association v. Stuart, 427 U.S. at
564, that adequately safeguard the fairness of a criminal pros-
ecution, see Rideau v. Louisiana, 373 U.S. at 727; Sheppard v.
Maxwell, 384 U.S. 333 (1966).
C. A Closure Order Must Effectively Protect Against The
Perceived Harm.
Before closing any portion of a judicial proceeding in a crimi-
nal case, a trial court must also demonstrate that closure will
effectively vindicate the defendant's right to a fair trial. See
Globe Newspaper Co. v. Superior Court, 457 U.S. at 608-10;
United States v. Brooklier, 685 F.2d at 1169. This principle
demands that closure of judicial proceedings be denied unless
there is a substantial probability that closure will! be effective in
protecting against the perceived harm. /d.
28
Thus, before closing a proceeding, the trial court must deter-
mine that the information sought to be withheld from public
exposure by closure will not be made public anyway. Globe
Newspaper Co. v. Superior Court, 457 U.S. at 609-10; Gannett
Co. v. DePasquale, 443 U.S. at 442 (Blackmun, J., concurring
in part). Closing a court proceeding does not restrict the press
from gathering news from alternative sources or from publish-
ing information intentionally or inadvertently leaked from a
closed proceeding. Jd. Moreover, when “there has already been
a substantial amount of pre-trial publicity,” a court simply
“cannot unscramble the scrambled egg.” People v. Harris, 6
Media L. Rep. (BNA) 1399, 1400 (Mich. Cir. May 30, 1980).
Closure most certainly cannot stifle the spread of rumors,
which may even be spawned by the suggestion of suppression
that pervades a secret proceeding, see Jn re Mack, 386 Pa. 251,
277, 126 A.2d 679, 691-92 (1956), cert. denied, 352 U.S. 1002
(1957) (Musmanno, J., dissenting), and might be “more damag-
ing than reasonably accurate news accounts,” Nebraska Press
Association v. Stuart, 427 U.S. at 567.
ee
29
CONCLUSION
For the foregoing reasons, amici respectfully request that
the decision below be reversed.
Respectfully submitted,
Bruce W. Sanford
Counsel of Record
Lee Levine
James E. Grossberg
Janet Rehnquist
Adrienne S. Wieand
BAKER & HOSTETLER
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 861-1500
Counsel for Amici
APPENDIX
la
APPENDIX A
DESCRIPTION OF AMICI
The American Newspaper Publishers Association is a non-
profit membership corporation organized unc »r the laws of the
Commonwealth of Virginia. Its membersh’ onsists of about
1,400 newspapers constituting over ninety percent of the total
daily and Sunday newspaper circulation, and a substantial
portion of the weekly newspaper circulation, in the United
States.
The Society of Professional Journalists, Sigma Delta Chi, is a
voluntary, non-profit organization of 24,000 members repre-
senting every branch and rank of print and broadcast jour-
nalism. Formed in 1909, it is the largest organization of jour-
nalists in the United States. Among the Society's purposes are
its commitments to ensure that the public's business is con-
ducted in public and to keep governmental proceedings, includ-
ing court hearings, open to the public.
American Broadcasting Companies, Inc. is a New York cor-
poration which owns and operates a national television network
(ABC), national radio networks, television and radio broad-
casting stations, and, through various subsidiaries, also pub-
lishes magazines and books.
The American Society of Newspaper Editors (ASNE) is a
nationwide, professional organization of more than 950 persons
who hold positions as directing editors of daily newspapers
throughout the United States. The purposes of the Society,
which was founded over 50 years ago, include the maintenance
of “the dignity and rights of the profession” (ASNE Constitu-
tion, Preamble) and “the ongoing responsibility to improve the
manner in which the journalism profession carries out its re-
sponsibilities in providing an unfettered and effective press in
the service of the American people.”
CBS Ine. is engaged, through its news division, in the na-
tionwide dissemination of news, operates national television
and radio networks, and owns and operates television and radio
stations.
2a
Chicago Tribune Company, a wholly-owned subsidiary of the
Tribune Company, publishes the Chicago Tribune, tne news-
paper with the largest circulation in Illinois.
Chronicle Publishing Co. publishes The San Francisco
Chronicle, a daily newspaper in San Francisco, California with
a daily circulation of 535,562 and a Sunday circulation of
669,591. The Chronicle Broadcasting Co., a wholly-owned sub-
sidiary of Chronicle Publishing Co., operates three television
stations.
The Concord Monitor is a newspaper serving New
Hampshire's capital city.
Dow Jones & Co., Inc. publishes, inter alia, The Wall Street
Journal, Barron’s National Business and Financial Weekly, a
variety of national and international electronic news services,
textbooks through its Richard D. Irwin, Inc. subsidiary, and’
twenty-two community daily newspapers through its Ottaway
Newspapers, Inc. subsidiary.
Gannett Co., Inc. publishes USA TODAY and 85 other daily
newspapers, 38 non-daily newspapers, and USA WEEKEND;
it operates six television stations and fourteen radio stations.
These Gannett subsidiaries operate newsrooms in 38 states, in
Guam, The Virgin Islands, and the District of Columbia.
Globe Newspaper Company publishes The Boston Globe, a
daily newspaper in Boston, Massachusetts.
The Hearst Corporation is a diversified privately-held com-
pany which is engaged in a broad spectrum of commercial
activities including communications. It publishes nationally
distributed magazines, newspapers and hard-cover and soft-
cover books, and it owns and operates a leading feature syndi-
cate, television and radio broadcast stations and cable televi-
sion systems.
The Miami Herald Publishing Co., a division of Knight-
Ridder Newspapers, Inc., publishes The Miami Herald, which
has a daily circulation of 422,275.
3a
The Minneapolis Star and Tribune Company, a division of
Cowles Media Company, a Delaware corporation, publishes
The Minneapolis Star and Tribune, a seven-days-a-week
newspaper which circulates throughout the State of
Minnesota.
The National Association of Broadcasters (NAB), organized
in 1922, is a non-profit incorporated association of radio and
television broadcast stations and networks. NAB membership
includes more than 4500 radio stations, 850 television stations
and the major commercial broadcast networks.
The National Newspaper Association is a trade association
consisting of more than 5,000 weekly and daily newspapers
located throughout the United States. Since 1885, a major
purpose of the Association has been to preserve the constitu-
tional guarantee of freedom of the press.
National Public Radio (NPR), an organization with over 300
member stations, produces the news programs “Morning Edi-
tion” and “All Things Considered.” These programs cover legal
issues and criminal proceedings in depth. Access to court pro-
ceedings is an essential tool for the reporters of NPR and its
member stations.
The Philadelphia Inquirer is a daily and Sunday newspaper
published in Philadelphia, Pennsylvania, and distributed in
Pennsylvania, New Jersey and Delaware by Philadelphia
Newspapers, Inc., which is a subsidiary of Knight-Ridder
Newspapers, Inc.
Phoenix Newspapers, Inc. publishes The Arizona Republic
and The Phoenix Gazette, with a combined daily circulation of
408,763, and The Arizona Business Gazette, a weekly news-
paper in Phoenix, Arizona.
The Public Broadcasting Service (PBS) is a non-profit, mem-
bership corporation, the members of which are licensees of
non-commercial, educational television stations. PBS’s mem-
bers produce a significant body of news, public affairs, and
documentary programming both for their own local broadcast
and for national distribution by PBS. PBS has a vital interest in
4a
assuring its members access to important pretrial
proceedings.
The Radio-Television News Directors Association (RTNDA)
is a professional organization of more than 2000 news directors
and others who are active in the supervising, reporting and
editing of news and public affairs programming on radio and
television, both broadcast and cable.
The Reporters Committee for Freedom of the Press is a
voluntary, unincorporated association of reporters and news
editors from the print and broadcast media devoted to the
protection of the First Amendment interests of the press. It
has provided representation, information, legal guidance or
research in virtually every major press freedoms case litigated
since 1970. The Committee provided research assistance in the
preparation of this brief.
Richmond Newspapers, Inc. publishes a morning news-
paper, the Richmond-Times Dispatch, and an evening news-
paper, The Richmond News Leader (combined circulation in
excess of 250,000 and Sunday morning circulation 230,878),
which are distributed in twenty-one cities and seventy-one
counties throughout the Commonwealth of Virginia.
Scripps Howard, one of the nation’s largest communications
companies, is engaged in virtually every aspect of news and
information gathering and dissemination. One American in
nine is a Scripps Howard reader, viewer, or listener. Scripps
Howard publishes daily newspapers in fourteen cities as well as
a variety of non-daily newspapers, magazines, and business
journals, and owns and operates radio and television stations,
cable systems, Scripps Howard News Service, and United
Media Enterprises, a multi-media service company.
Seattle Times Company is a Delaware corporation with its
principal place of business in Seattle, Washington, where it
publishes The Seattle Times, a daily newspaper.
The Washington Post, a division of the Washington Post Co..,
publishes a daily newspaper of general circulation in the Wash-
ington, D.C. area (circulation approximately 800,000 week-
days, 1,050,000 Sundays), and maintains a substantial news-
gathering organization.
APPENDIX B
COUNSEL FOR AMICI
W. Terry Maguire
Claudia M. James
Box 17407
Dulles International
Airport
Washington, D.C. 20041
Attorneys for American
Newspaper Publishers
Association
Sam Antar
7 West 66th Street
New York, New York
10023
Attorney for American
Broadcasting Companies,
Inc.
Richard M. Schmidt, Jr.
Cohn & Marks
1333 New Hampshire
Avenue, N.W.
Washington, D.C. 20036
Attorneys for American
Society of Newspaper
Editors
George A. Vradenburg, III
Howard F. Jaeckel
51 West 52nd Street
New York, New York
10019
Attorneys for CBS Inc.
Lawrence Gunnels
435 North Michigan
Avenue
Chicago, Illinois 60611
Attorney for Chicago
Tribune Company
Mark L. Tuft
Cooper, White & Cooper
101 California Street
San Francisco, California
94111
Attorneys for Chronicle
Publishing Co.
Robert D. Sack
Patterson, Belknap, Webb
& Tyler
30 Rockefeller Plaza
New York, New York
10112
Attorneys for Dow Jones &
Co., Ince.
Alice Neff Lucan
1100 Wilson Boulevard
Arlington, Virginia 22209
Attorney for Gannett Co..,
Inc.
E. Susan Garsh
Bingham, Dana & Gould
100 Federal Street
Boston, Massachusetts
02110
Attorneys for Globe
Newspaper Company
Harvey L. Lipton
Robert J. Hawley
959 Eighth Avenue
New York, New York
10019
Attorneys for The Hearst
Corporation
Richard J. Ovelmen
One Herald Plaza
Miami, Florida 33101
Attorney for The Miami
Herald Publishing Co.
Norton L. Armour
425 Portland Avenue
Minneapolis, Minnesota
55488
Attorney for The
Minneapolis Star and
Tribune Company
Henry L. Baumann
Steven A. Bookshester
1771 N Street, N.W.
Washington, D.C. 20036
Attorneys for National
Association of
Broadcasters
Robert J. Brinkmann
1627 K Street, N.W.
Washington, D.C. 20006
Attorney for National
Newspaper Association
Lois J. Schiffer
2025 M Street, N.W.
Washington, D.C. 20036
Attorney for National Public
Radio
6a
Samuel E. Klein
Kohn, Savett, Marion &
Graf, P.C.
2400 One Reading Center
1101 Market Street
Philadelphia, Pennsylvania
19107
Attorneys for The
Philadelphia Inquirer
James F. Henderson
Gust, Rosenfeld,
Divelbess & Henderson
3300 Valley Center
Phoenix, Arizona 85073
Attorneys for Phoenix
Newspapers, Inc.
Nancy H. Hendry
475 L’Enfant Plaza West,
S.W.
Washington, D.C. 20024
Attorney for Public
Broadcasting Service
J. Laurent Scharff
Pierson, Ball & Dowd
1200 Eighteenth Street,
N.W.
Washington, D.C. 20036
Attorneys for Radio-
Television News Directors
Association
Jane E. Kirtley
Room 405
1125 Fifteenth Street,
N.W.
Washington, D.C. 20005
Attorney for Reporters
Committee for Freedom of
the Press
ee EE ee ON ne
“yur <
Alexander Wellford
David C. Kohler
Christian, Barton, Epps,
Brent & Chappell
1200 Mutual Building
Richmond, Virginia 23219
Attorneys for Richmond
Newspapers, Inc.
P. Cameron De Vore
Davis, Wright, Todd,
Riese & Jones
4200 Seattle-First
National Bank Building
Seattle, Washington 98154
Attorneys for Seattle Times
Company
7a
Boisfeuillet Jones, Jr.
Carol D. Melamed
Patrick J. Carome
1150 Fifteenth Street,
N.W.
Washington, D.C. 20071
Attorneys for The
Washington Post
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.