El Vocero de Puerto Rico v. Puerto Rico - 508 U.S. 147 (1993)
OCTOBER TERM, 1992
EL VOCERO DE PUERTO RICO ET AL. v. PUERTO RICO ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF PUERTO RICO
No. 92-949. Decided May 17, 1993
Puerto Rico Rule of Criminal Procedure 23(c) provides that preliminary hearings in criminal cases "shall be held privately" unless the defendant requests otherwise. Petitioners, a newspaper and reporter, challenged this provision, claiming that it violates the First Amendment for the same reasons that a similar California law was struck down in PressEnterprise Co. v. Superior Court ofCal., County of Riverside, 478 U. S. 1. There, this Court applied the experience and logic test of Globe Newspaper Co. v. Superior Court of County of Norfolk, 457 U. S. 596, to hold that preliminary criminal hearings have traditionally been public and that California's hearings were sufficiently like a trial that public access was essential to their proper functioning. The Puerto Rico Superior Court dismissed petitioners' suit, and the Commonwealth's Supreme Court affirmed, holding that several differences between California hearings and Rule 23(c) hearings made Press-Enterprise inapposite. Applying the Globe Newspaper tests anew, it concluded that closed hearings were compatible with the Commonwealth's unique history and traditions and that open hearings would prejudice defendants' rights to fair trials because of Puerto Rico's small size and dense population.
Held: Rule 23(c)'s privacy provision is unconstitutional. The decision below is irreconcilable with Press-Enterprise. Each of the features cited by Press-Enterprise in support of the finding that the California hearings were like a trial--e. g., hearings before a neutral magistrate and a defendant's right to cross-examine witnesses-is present here. The commonalities are not coincidental, as one source for Rule 23 was the California law. Rule 23(c)'s privacy provision is also more clearly suspect than California's law, which allowed hearings to be closed only upon a determination that there was a substantial likelihood of prejudice to the defendant. Contrary to the lower court's finding, the experience test of Globe Newspaper looks not to the particular practice of anyone jurisdiction, but to the experience in that type or kind of hearing throughout the United States. The lower court's concern that publicity will prejudice defendants' fair trial rights is legitimate but can be addressed on a case-by-case basis.
Certiorari granted; 132 D. P. R. -, reversed.
Under the Puerto Rico Rules of Criminal Procedure, an accused felon is entitled to a hearing to determine if he shall be held for trial. P. R. Laws Ann., Tit. 34, App. II, Rule 23 (1991). A neutral magistrate presides over the hearing, People v. Opio Opio, 104 P. R. R. (4 Official Translations 231, 239) (1975), for which the defendant has the rights to appear and to counsel, Rules 23(a), (b). Both the prosecution and the defendant may introduce evidence and cross-examine witnesses, Rule 23(c), and the defendant may,present certain affirmative defenses, People v. Lebron Lebron, 116 P. R. R. (16 Official Translations 1052, 1058) (1986). The magistrate must determine whether there is probable cause to believe that the defendant committed the offense charged. Rule 23(c) provides that the hearing "shall be held privately" unless the defendant requests otherwise.
Petitioner Jose Purcell is a reporter for petitioner El Vocero de Puerto Rico, the largest newspaper in the Commonwealth. By written request to respondent District Judges, he sought to attend preliminary hearings over which they were to preside. In the alternative, he sought access to recordings of the hearings. After these requests were denied, petitioners brought this action in Puerto Rico Superior Court seeking a declaration that the privacy provision of Rule 23(c) violates the First Amendment, applicable to the Commonwealth through the Fourteenth Amendment,l and an injunction against its enforcement. Petitioners based their claim on Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U. S. 1 (1986), which addressed a California law that allowed magistrates to close preliminary hearings quite similar in form and function to those held under Rule 23 if it was reasonably likely that the
1 The Free Speech Clause of the First Amendment fully applies to Puerto Rico. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328, 331, n. 1 (1986).