California filed a complaint against a nurse charging him with
murdering 12 patients by administering massive doses of the heart
drug lidocaine. The Magistrate granted the defendant's motion to
exclude the public from the preliminary hearing on the complaint
under a California statute that requires such proceedings to be
open unless "exclusion of the public is necessary in order to
protect the defendant's right to a fair and impartial trial." At
the conclusion of the 41-day preliminary hearing, the Magistrate
refused petitioner's request that the transcript of the proceedings
be released. Thereafter, the State, supported by petitioner and
opposed by the defendant, moved unsuccessfully in the California
Superior Court to have the transcript released. Petitioner then
filed a peremptory writ of mandate with the California Court of
Appeal. Meanwhile, the defendant waived his right to a jury trial,
and the Superior Court released the transcript. After holding that
the controversy was not moot, the Court of Appeal denied the writ.
The California Supreme Court also denied the writ, holding that
there is no general First Amendment right of access to preliminary
hearings, and that. under the California statute, if the defendant
establishes a "reasonable likelihood of substantial prejudice," the
burden shifts to the prosecution or the media to show by a
preponderance of the evidence that there is no such reasonable
probability of prejudice.
Page 478 U. S. 2
Held:
1. Even though the Superior Court ultimately released the
transcript in question, the case is not moot, because the
controversy is "capable of repetition, yet evading review."
Globe Newspaper Co. v. Superior Court, 457 U.
S. 596;
Gannett Co. v. DePasquale, 443 U.
S. 368. Thus, this Court has jurisdiction. P.
478 U. S. 6.
2. The qualified First Amendment right of access to criminal
proceedings applies to preliminary hearings as conducted in
California. First, there has been a tradition of public
accessibility to preliminary hearings of the type conducted in
California. As opposed to grand jury proceedings, preliminary
hearings conducted before neutral and detached magistrates have
been open to the public. Second, public access to such preliminary
hearings is essential to the proper functioning of the criminal
justice system. This proper functioning is not made any less
essential by the fact that a preliminary hearing cannot result in a
conviction and the adjudication is before a magistrate without a
jury. The absence of a jury makes the importance of public access
even more significant. Pp.
478
U. S. 6-13.
3. Since a qualified First Amendment right of access attaches to
preliminary hearings as conducted in California, the proceedings
cannot be closed unless specific, on-the-record findings are made
demonstrating that "closure is essential to preserve higher values
and is narrowly tailored to serve that interest."
Press-Enterprise Co. v. Superior Court, 464 U.
S. 501,
464 U. S. 510.
If the interest asserted is the defendant's right to a fair trial,
the preliminary hearing shall not be closed unless there is a
"substantial probability" that that right will be prejudiced by
publicity that closure would prevent, and that reasonable
alternatives to closure cannot adequately protect the right. Here,
the "reasonable likelihood" test applied by the California Supreme
Court placed a lesser burden on the defendant than the "substantial
probability" test required by the First Amendment. Moreover, the
court failed to consider whether alternatives short of closure
would have protected the defendant's interests. Pp.
478 U. S.
13-15.
37 Cal. 3d 773,
691 P.2d 1026,
reversed.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in Part II of
which REHNQUIST, J., joined,
post, p.
478 U. S. 15.
Page 478 U. S. 3
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether petitioner has a First
Amendment right of access to the transcript of a preliminary
hearing growing out of a criminal prosecution.
I
On December 23, 1981, the State of California filed a complaint
in the Riverside County Municipal Court, charging Robert Diaz with
12 counts of murder and seeking the death penalty. The complaint
alleged that Diaz, a nurse, murdered 12 patients by administering
massive doses of the heart drug lidocaine. The preliminary hearing
on the complaint commenced on July 6, 1982. Diaz moved to exclude
the public from the proceedings under Cal.Penal Code Ann. § 868
(West 1985), which requires such proceedings to be
Page 478 U. S. 4
open unless "exclusion of the public is necessary in order to
protect the defendant's right to a fair and impartial trial."
[
Footnote 1] The Magistrate
granted the unopposed motion, finding that closure was necessary
because the case had attracted national publicity and "only one
side may get reported in the media." App. 22a.
The preliminary hearing continued for 41 days. Most of the
testimony and the evidence presented by the State was medical and
scientific; the remainder consisted of testimony by personnel who
worked with Diaz on the shifts when the 12 patients died. Diaz did
not introduce any evidence, but his counsel subjected most of the
witnesses to vigorous cross-examination. Diaz was held to answer on
all charges. At the conclusion of the hearing, petitioner
Press-Enterprise
Page 478 U. S. 5
Company asked that the transcript of the proceedings be
released. The Magistrate refused, and sealed the record.
On January 21, 1983, the State moved in Superior Court to have
the transcript of the preliminary hearing released to the public;
petitioner later joined in support of the motion. Diaz opposed the
motion, contending that release of the transcript would result in
prejudicial pretrial publicity. The Superior Court found that the
information in the transcript was "as factual as it could be," and
that the facts were neither "inflammatory" nor "exciting," but that
there was, nonetheless, "a reasonable likelihood that release of
all or any part of the transcripts might prejudice defendant's
right to a fair and impartial trial."
Id. at 60a, 61a.
Petitioner then filed a peremptory writ of mandate with the
Court of Appeal. That court originally denied the writ but, after
being so ordered by the California Supreme Court, set the matter
for a hearing. Meanwhile, Diaz waived his right to a jury trial and
the Superior Court released the transcript. After holding that the
controversy was not moot, the Court of Appeal denied the writ of
mandate.
The California Supreme Court thereafter denied petitioner's
peremptory writ of mandate, holding that there is no general First
Amendment right of access to preliminary hearings.
37 Cal. 3d
772,
691 P.2d 1026
(1984). The court reasoned that the right of access to criminal
proceedings recognized in
Press-Enterprise Co. v. Superior
Court, 464 U. S. 501
(1984) (
Press-Enterprise I), and
Globe Newspaper Co.
v. Superior Court, 457 U. S. 596
(1982), extended only to actual criminal trials. 37 Cal. 3d at 776,
691 P.2d at 1028. Furthermore, the reasons that had been asserted
for closing the proceedings in
Press-Enterprise I and
Globe -- the interests of witnesses and other third
parties -- were not the same as the right asserted in this case --
the defendant's right to a fair and impartial trial by a jury
uninfluenced by news accounts.
Having found no general First Amendment right of access, the
court then considered the circumstances in which the closure
Page 478 U. S. 6
would be proper under the California access statute, Cal.Penal
Code Ann. § 868 (West 1985). Under the statute, the court reasoned,
if the defendant establishes a "reasonable likelihood of
substantial prejudice," the burden shifts to the prosecution or the
media to show by a preponderance of the evidence that there is no
such reasonable probability of prejudice. 37 Cal. 3d at 782, 691
P.2d at 1032.
We granted certiorari. 474 U.S. 899 (1985). We reverse.
II
We must first consider whether we have jurisdiction under
Article III, § 2, of the Constitution. In this Court, petitioner
challenges the Superior Court's original refusal to release the
transcript of the preliminary hearing. As noted above, the specific
relief petitioner seeks has already been granted -- the transcript
of the preliminary hearing was released after Diaz waived his right
to a jury trial. However, as in
Globe Newspaper, supra, at
457 U. S. 603,
and
Gannett Co. v. DePasquale, 443 U.
S. 368,
443 U. S.
377-378 (1979), this controversy is "
capable of
repetition, yet evading review.'" It can reasonably be assumed that
petitioner will be subjected to a similar closure order and,
because criminal proceedings are typically of short duration, such
an order will likely evade review. Globe and
Gannett, therefore, require the conclusion that this case
is not moot. Accordingly, we turn to the merits.
III
It is important to identify precisely what the California
Supreme Court decided:
"[W]e conclude that the magistrate shall close the preliminary
hearing upon finding a reasonable likelihood of substantial
prejudice which would impinge upon the right to a fair trial. Penal
code section 868 makes clear that the primary right is the right to
a fair trial, and that the public's right of access must give way
when there is conflict."
37 Cal. 3d at 781, 691 P.2d at 1032.
Page 478 U. S. 7
It is difficult to disagree in the abstract with that court's
analysis balancing the defendant's right to a fair trial against
the public right of access. It is also important to remember that
these interests are not necessarily inconsistent. Plainly, the
defendant has a right to a fair trial but, as we have repeatedly
recognized, one of the important means of assuring a fair trial is
that the process be open to neutral observers.
The right to an open public trial is a shared right of the
accused and the public, the common concern being the assurance of
fairness. Only recently, in
Waller v. Georgia,
467 U. S. 39
(1984), for example, we considered whether the defendant's Sixth
Amendment right to an open trial prevented the closure of a
suppression hearing over the defendant's objection. We noted that
the First Amendment right of access would in most instances attach
to such proceedings, and that
"the explicit Sixth Amendment right of the accused is no less
protective of a public trial than the implicit First Amendment
right of the press and public."
Id. at
467 U. S. 46.
When the defendant objects to the closure of a suppression hearing,
therefore, the hearing must be open unless the party seeking to
close the hearing advances an overriding interest that is likely to
be prejudiced.
Id. at
467 U. S.
47.
Here, unlike
Waller, the right asserted is not the
defendant's Sixth Amendment right to a public trial, since the
defendant requested a closed preliminary hearing. Instead, the
right asserted here is that of the public under the First
Amendment.
See Gannett, supra, at
443 U. S. 397
(POWELL, J., concurring). The California Supreme Court concluded
that the First Amendment was not implicated, because the proceeding
was not a criminal trial, but a preliminary hearing. However, the
First Amendment question cannot be resolved solely on the label we
give the event,
i.e., "trial" or otherwise, particularly
where the preliminary hearing functions much like a full-scale
trial.
Page 478 U. S. 8
In cases dealing with the claim of a First Amendment right of
access to criminal proceedings, our decisions have emphasized two
complementary considerations. First, because a "
tradition of
accessibility implies the favorable judgment of experience,'"
Globe Newspaper, 457 U.S. at 457 U. S. 605
(quoting Richmond Newspapers, Inc. v. Virginia,
448 U. S. 555,
448 U. S. 589
(1980) (BRENNAN, J., concurring in judgment)), we have considered
whether the place and process have historically been open to the
press and general public.
In
Press-Enterprise I, for example, we observed
that,
"since the development of trial by jury, the process of
selection of jurors has presumptively been a public process with
exceptions only for good cause shown."
464 U.S. at
464 U. S. 505.
In
Richmond Newspapers, we reviewed some of the early
history of England's open trials from the day when a trial was much
like a "town meeting." In the days before the Norman Conquest,
criminal cases were brought before "moots," a collection of the
freemen in the community. The public trial, "one of the essential
qualities of a court of justice" in England, was recognized early
on in the Colonies. There were risks, of course, inherent in such a
"town meeting" trial -- the risk that it might become a gathering
moved by emotions or passions growing from the nature of a crime; a
"lynch mob" ambience is hardly conducive to calm, reasoned
decisionmaking based on evidence. Plainly, the modern trial with
jurors open to interrogation for possible bias is a far cry from
the "town meeting trial" of ancient English practice. Yet even our
modern procedural protections have their origin in the ancient
common law principle which provided, not for closed proceedings,
but rather for rules of conduct for those who attend trials.
Richmond Newspapers, supra, at
448 U. S.
567.
Second, in this setting, the Court has traditionally considered
whether public access plays a significant positive role in the
functioning of the particular process in question.
Globe
Newspaper, supra, at
457 U. S. 606.
Although many governmental processes operate best under public
scrutiny, it takes little
Page 478 U. S. 9
imagination to recognize that there are some kinds of government
operations that would be totally frustrated if conducted openly. A
classic example is that "the proper functioning of our grand jury
system depends upon the secrecy of grand jury proceedings."
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.
S. 211,
441 U. S. 218
(1979). Other proceedings plainly require public access. In
Press-Enterprise I, we summarized the holdings of prior
cases, noting that openness in criminal trials, including the
selection of jurors, "enhances both the basic fairness of the
criminal trial and the appearance of fairness so essential to
public confidence in the system." 464 U.S. at
464 U. S. 501.
These considerations of experience and logic are, of course,
related, for history and experience shape the functioning of
governmental processes. If the particular proceeding in question
passes these tests of experience and logic, a qualified First
Amendment right of public access attaches. But even when a right of
access attaches, it is not absolute.
Globe Newspaper Co. v.
Superior Court, supra, at
457 U. S. 606.
While open criminal proceedings give assurances of fairness to both
the public and the accused, there are some limited circumstances in
which the right of the accused to a fair trial might be undermined
by publicity. [
Footnote 2] In
such cases, the trial court must determine whether the situation is
such that the rights of the accused override the qualified First
Amendment right of access. In
Press-Enterprise I, we
stated:
"[T]he presumption may be overcome only by an overriding
interest based on findings that closure is essential to preserve
higher values, and is narrowly tailored to serve that interest. The
interest is to be articulated along with findings specific enough
that a reviewing court can
Page 478 U. S. 10
determine whether the closure order was properly entered."
464 U.S. at
464 U. S.
510.
IV
A
The considerations that led the Court to apply the First
Amendment right of access to criminal trials in
Richmond
Newspapers and
Globe, and the selection of jurors in
Press-Enterprise I, lead us to conclude that the right of
access applies to preliminary hearings as conducted in
California.
First, there has been a tradition of accessibility to
preliminary hearings of the type conducted in California. Although
grand jury proceedings have traditionally been closed to the public
and the accused, preliminary hearings conducted before neutral and
detached magistrates have been open to the public. Long ago, in the
celebrated trial of Aaron Burr for treason, for example, with Chief
Justice Marshall sitting as trial judge, the probable cause hearing
was held in the Hall of the House of Delegates in Virginia, the
courtroom being too small to accommodate the crush of interested
citizens.
United States v. Burr, 25 F. Cas. 1 (No. 14,692)
(CC Va. 1807). From
Burr until the present day, the
near-uniform practice of state and federal courts has been to
conduct preliminary hearings in open court. [
Footnote 3] As we noted in
Gannett,
Page 478 U. S. 11
several States following the original New York Field Code of
Criminal Procedure published in 1850 have allowed preliminary
hearings to be closed on the motion of the accused. 443 U.S. at
443 U. S.
390-391. But even in these States, the proceedings are
presumptively open to the public, and are closed only for cause
shown. [
Footnote 4] Open
preliminary hearings, therefore, have been accorded "
the
favorable judgment of experience.'" Globe, 457 U.S. at
457 U. S.
605.
The second question is whether public access to preliminary
hearings, as they are conducted in California, plays a particularly
significant positive role in the actual functioning of the process.
We have already determined in
Richmond
Page 478 U. S. 12
Newspapers, Globe, and
Press-Enterprise I that
public access to criminal trials and the selection of jurors is
essential to the proper functioning of the criminal justice system.
California preliminary hearings are sufficiently like a trial to
justify the same conclusion.
In California, to bring a felon to trial, the prosecutor has a
choice of securing a grand jury indictment or a finding of probable
cause following a preliminary hearing. Even when the accused has
been indicted by a grand jury, however, he has an absolute right to
an elaborate preliminary hearing before a neutral magistrate.
Hawkins v. Superior Court, 22 Cal. 3d
584, 586 P.2d 918 (1978). The accused has the right to
personally appear at the hearing, to be represented by counsel, to
cross-examine hostile witnesses, to present exculpatory evidence,
and to exclude illegally obtained evidence. Cal.Penal Code Ann. §§
859-866 (West 1985), § 1538.5 (West Supp.1986). If the magistrate
determines that probable cause exists, the accused is bound over
for trial; such a finding leads to a guilty plea in the majority of
cases.
It is true that, unlike a criminal trial, the California
preliminary hearing cannot result in the conviction of the accused,
and the adjudication is before a magistrate or other judicial
officer, without a jury. But these features, standing alone, do not
make public access any less essential to the proper functioning of
the proceedings in the overall criminal justice process. Because of
its extensive scope, the preliminary hearing is often the final and
most important step in the criminal proceeding.
See Waller v.
Georgia, 467 U.S. at
467 U. S. 46-47.
As the California Supreme Court stated in
San Jose Mercury-News
v. Municipal Court, 30 Cal. 3d
498, 511, 638 P.2d 655, 663 (1982), the preliminary hearing in
many cases provides "the sole occasion for public observation of
the criminal justice system."
See also Richmond
Newspapers, 448 U.S. at
448 U. S.
572.
Similarly, the absence of a jury, long recognized as "an
inestimable safeguard against the corrupt or overzealous
prosecutor
Page 478 U. S. 13
and against the compliant, biased, or eccentric judge,"
Duncan v. Louisiana, 391 U. S. 145,
391 U. S. 156
(1968), makes the importance of public access to a preliminary
hearing even more significant.
"People in an open society do not demand infallibility from
their institutions, but it is difficult for them to accept what
they are prohibited from observing."
Richmond Newspapers, 448 U.S. at
448 U. S.
572.
Denying the transcript of a 41-day preliminary hearing would
frustrate what we have characterized as the "community therapeutic
value" of openness.
Id. at
448 U. S. 570.
Criminal acts, especially certain violent crimes, provoke public
concern, outrage, and hostility.
"When the public is aware that the law is being enforced and the
criminal justice system is functioning, an outlet is provided for
these understandable reactions and emotions."
Press-Enterprise I, 464 U.S. at
464 U. S. 509.
See also H. Weihofen, The Urge to Punish 130-131 (1956);
T. Reik, The Compulsion to Confess (1959). In sum:
"The value of openness lies in the fact that people not actually
attending trials can have confidence that standards of fairness are
being observed; the sure knowledge that
anyone is free to
attend gives assurance that established procedures are being
followed and that deviations will become known. Openness thus
enhances both the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the
system."
Press-Enterprise I, supra, at
464 U. S. 508
(emphasis in original).
We therefore conclude that the qualified First Amendment right
of access to criminal proceedings applies to preliminary hearings
as they are conducted in California.
B
Since a qualified First Amendment right of access attaches to
preliminary hearings in California under Cal.Penal Code Ann. § 858
et seq. (West 1985), the proceedings cannot be closed
unless specific, on-the-record findings are made demonstrating that
"closure is essential to preserve higher values,
Page 478 U. S. 14
and is narrowly tailored to serve that interest."
Press-Enterprise I, supra, at
464 U. S. 510.
See also Globe Newspaper, 457 U.S. at
457 U. S.
606-607. If the interest asserted is the right of the
accused to a fair trial, the preliminary hearing shall be closed
only if specific findings are made demonstrating that, first, there
is a substantial probability that the defendant's right to a fair
trial will be prejudiced by publicity that closure would prevent
and, second, reasonable alternatives to closure cannot adequately
protect the defendant's fair trial rights.
See Press-Enterprise
I, supra; Richmond Newspapers, supra, at
448 U. S.
581.
The California Supreme Court, interpreting its access statute,
concluded that "the magistrate shall close the preliminary hearing
upon finding a reasonable likelihood of substantial prejudice." 37
Cal. 3d at 781, 691 P.2d at 1032. As the court itself acknowledged,
the "reasonable likelihood" test places a lesser burden on the
defendant than the "substantial probability" test which we hold is
called for by the First Amendment.
See ibid.; see also id.
at 783, 691 P.2d at 1033 (Lucas, J., concurring and dissenting).
Moreover, that court failed to consider whether alternatives short
of complete closure would have protected the interests of the
accused.
In
Gannett, we observed:
"Publicity concerning pretrial suppression hearings such as the
one involved in the present case poses special risks of unfairness.
The whole purpose of such hearings is to screen out unreliable or
illegally obtained evidence and insure that this evidence does not
become known to the jury.
Cf. Jackson v. Denno,
378 U. S.
368. Publicity concerning the proceedings at a pretrial
hearing, however, could influence public opinion against a
defendant and inform potential jurors of inculpatory information
wholly inadmissible at the actual trial."
443 U.S. at
443 U. S.
378.
Page 478 U. S. 15
But this risk of prejudice does not automatically justify
refusing public access to hearings on every motion to suppress.
Through
voir dire, cumbersome as it is in some
circumstances, a court can identify those jurors whose prior
knowledge of the case would disable them from rendering an
impartial verdict. And even if closure were justified for the
hearings on a motion to suppress, closure of an entire 41-day
proceeding would rarely be warranted. The First Amendment right of
access cannot be overcome by the conclusory assertion that
publicity might deprive the defendant of that right. And any
limitation must be "narrowly tailored to serve that interest."
Press-Enterprise I, supra, at
464 U. S.
510.
The standard applied by the California Supreme Court failed to
consider the First Amendment right of access to criminal
proceedings. Accordingly, the judgment of the California Supreme
Court is reversed.
It is so ordered.
[
Footnote 1]
Section 868, as amended in 1982, provides in full:
"The examination shall be open and public. However, upon the
request of the defendant and a finding by the magistrate that
exclusion of the public is necessary in order to protect the
defendant's right to a fair and impartial trial, the magistrate
shall exclude from the examination every person except the clerk,
court reporter and bailiff, the prosecutor and his or her counsel,
the Attorney General, the district attorney of the county, the
investigating officer, the officer having custody of a prisoner
witness while the witness is testifying, the defendant and his or
her counsel, the officer having the defendant in custody and a
person chosen by the prosecuting witness who is not himself or
herself a witness but who is present to provide the prosecuting
witness moral support, provided that the person so chosen shall not
discuss prior to or during the preliminary examination the
testimony of the prosecuting witness with any person, other than
the prosecuting witness, who is a witness in the examination.
Nothing in this section shall affect the right to exclude witnesses
as provided in Section 687 of the Penal Code."
Before 1982, the statute gave the defendant the unqualified
right to close the proceedings. After the California Supreme Court
rejected a First Amendment attack on the old statute in
San
Jose Mercury-News v. Superior Court, 30 Cal. 3d
498, 638 P.2d 655 (1982), the California Legislature amended
the statute to include the present requirement that the hearing be
closed only upon a finding by the magistrate that closure is
"necessary in order to protect the defendant's right to a fair and
impartial trial."
[
Footnote 2]
Similarly, the interests of those other than the accused may be
implicated. The protection of victims of sex crimes from the trauma
and embarrassment of public scrutiny may justify closing certain
aspects of a criminal proceeding.
See Globe Newspaper Co. v.
Superior Court, 457 U.S. at
457 U. S.
607-610.
[
Footnote 3]
The vast majority of States considering the issue have concluded
that the same tradition of accessibility that applies to criminal
trials applies to preliminary proceedings.
See, e.g., Arkansas
Television Co. v. Tedder, 281 Ark. 152,
662 S.W.2d
174 (1983);
Miami Herald Publishing Co. v.
Lewis, 426 So. 2d 1
(Fla.1982);
R. W. Page Corp. v. Lumpkin, 249 Ga. 576,
578-579,
292 S.E.2d
815, 819 (1982);
Gannett Pacific Corp. v. Richardson,
59 Haw. 224,
580 P.2d 49, 56
(1978);
State ex rel. Post-Tribune Publishing Co. v. Porter
Superior Court, 274 Ind. 408,
412 N.E.2d
748 (1980);
Ashland Publishing Co. v.
Asbury, 612
S.W.2d 749, 752 (Ky.App.1980);
Great Falls Tribune v.
District Court, 186 Mont. 433, 608 P.2d 116 (1980);
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 v.
Leggett, 48 N.Y.2d 430, 439, 399 N.E.2d 518, 523 (1979);
Minot Daily News v. Holum, 380
N.W.2d 347 (N.D.1986);
State ex rel. Dayton Newspapers,
Inc. v. Phillips, 46 Ohio St.2d 457, 351 N.E.2d 127 (1976);
Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 503,
387 A.2d
425, 434 (1978);
Kearns-Tribune Corp. v.
Lewes, 685 P.2d 515
(Utah 1984);
Herald Assn., Inc. v. Ellison, 138 Vt. 529,
534,
419 A.2d 323,
326 (1980);
Federated Publications, Inc. v.
Kurtz, 94 Wash. 2d
51,
615 P.2d
440 (1980);
State ex rel. Herald Mail Co. v. Hamilton,
165 W.Va. 103,
267 S.E.2d
544 (1980);
Williams v. Stafford, 589 P.2d 322
(Wyo.1979).
Cf. In re Midland Publishing, 420 Mich. 148,
173,
362 N.W.2d
580, 593 (1984) (proceedings leading to a person's indictment
have not been open to the public).
Other courts have noted that some pretrial proceedings have no
historical counterpart, but, given the importance of the pretrial
proceeding to the criminal trial, the traditional right of access
should still apply.
See, e.g., Iowa Freedom of Information
Council v. Wifvat, 328 N.W.2d 920 (Iowa 1983);
Minneapolis
Star and Tribune Co. v. Kammeyer, 341
N.W.2d 550 (Minn.1983);
Richmond Newspapers, Inc. v.
Commonwealth, 222 Va. 574,
281 S.E.2d
915 (1981).
[
Footnote 4]
See State v. McKenna, 78 Idaho 647, 309 P.2d 206
(1957);
Davis v. Sheriff, 93 Nev. 511,
569 P.2d 402
(1977). Although Arizona, Iowa, Montana, North Dakota,
Pennsylvania, and Utah have closure statutes based on the Field
Code,
see Gannett, 443 U.S. at 391, in each of these
States, the Supreme Court has found either a common law or state
constitutional right of the public to attend pretrial proceedings.
See Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz.
257,
418 P.2d 594
(1966);
Iowa Freedom of Information Council v. Wifvat, supra;
Great Falls Tribune v. District Court, supra; Minot Daily News v.
Holum, supra; Commonwealth v. Hayes, 489 Pa. 419,
414 A.2d
318 (1980);
Kearns-Tribune Corp. v. Lewis, supra.
JUSTICE STEVENS, with whom JUSTICE REHNQUIST joins as to Part
II, dissenting.
The constitutional question presented by this case is whether
members of the public have a First Amendment right to insist upon
access to the transcript of a preliminary hearing during the period
before the public trial, even though the accused, the prosecutor,
and the trial judge have all agreed to the sealing of the
transcript in order to assure a fair trial.
The preliminary hearing transcript to which petitioner sought
access consists of 4,239 pages of testimony by prosecution
witnesses heard over eight weeks. The testimony, contained in 47
volumes, accuses Mr. Robert Diaz, a nurse, of murdering 12 patients
in the hospital in which he worked by injecting them with lethal
doses of a heart drug. The transcript reveals that the defense put
on no witnesses of its own.
Immediately after the Magistrate ordered the defendant bound
over for trial, defense counsel moved that the transcript of the
preliminary hearing be sealed to protect his client's
Page 478 U. S. 16
right to a fair trial. The transcript, in the words of the
Magistrate, revealed "only one side of the story." App. 28a. The
transcript also contained the Magistrate's characterization of Mr.
Diaz as "the most dangerous type of individual there is."
Id. at 27a. The prosecutor did not oppose this motion, and
the Magistrate, after hearing petitioner's objection, ordered the
transcript sealed.
The Superior Court trial judge denied a motion to unseal the
transcript. He found -- and the finding is amply supported by the
record -- that
"there is a reasonable likelihood that making all or any part of
the transcripts public might prejudice the defendant's right to a
fair and impartial trial."
Id. at 61a.
Accord, id. at 62a. The Magistrate
had earlier rejected less restrictive alternatives to sealing the
transcript, concluding that "the only way to protect" the
defendant's "[fair trial] right would be to seal the transcript."
Id. at 37a. [
Footnote
2/1]
The Court of Appeal agreed with the trial judge, and denied the
peremptory writ of mandate sought by petitioner. It rejected
petitioner's assertion that "the superior court failed to state any
reasons or make a specific finding to support the sealing order."
App. to Pet. for Cert. E-11. Instead, it confirmed the trial
judge's determinations that "the transcript is indicative of only
the prosecutorial side of the case,"
id. at E-14; that the
public's right of access was overborne by the "reasonable
likelihood of substantial prejudice" to "the defendant's right to a
fair trial,"
id. at E-9; and that "[a]lternatives to
sealing the transcript would not suffice in this
Page 478 U. S. 17
case,"
id. at E-14. [
Footnote 2/2] The California Supreme Court similarly
denied petitioner's request for a peremptory writ of mandate,
affirming that a preliminary hearing transcript can be sealed upon
a showing of a "reasonable likelihood of substantial prejudice
which would impinge upon the right to a fair trial."
37 Cal. 3d
772, 781,
691 P.2d 1026,
1032 (1984).
In view of the above, the trial judge had an obvious and
legitimate reason for refusing to make the transcript public any
sooner than he did. His decision plainly did not violate the
defendant's right to a public trial under the Sixth Amendment, for
it was the defendant who objected to release of the transcript.
See Gannett Co. v. DePasquale, 443 U.
S. 368,
443 U. S.
383-384 (1979). In my opinion, the judge's decision did
not violate the First Amendment, either.
I
Although perhaps obvious, it bears emphasis that the First
Amendment right asserted
Page 478 U. S. 18
by petitioner is not a right to publish or otherwise communicate
information lawfully or unlawfully acquired. That right, which lies
at the core of the First Amendment, and which erased the legacy of
restraints on publication against which the drafters of that
Amendment rebelled,
see Grosjean v. American Press Co.,
297 U. S. 233,
297 U. S.
245-250 (1936), may be overcome only by a governmental
objective of the highest order attainable in a no less intrusive
way.
See, e.g., Smith v. Daily Mail Publishing Co.,
443 U. S. 97,
443 U. S.
101-106 (1979);
Landmark Communications, Inc. v.
Virginia, 435 U. S. 829,
435 U. S.
837-845 (1978);
Oklahoma Publishing Co. v. District
Court, 430 U. S. 308,
430 U. S.
310-312 (1977) (per curiam);
Nebraska Press Assn. v.
Stuart, 427 U. S. 539,
427 U. S.
556-570 (1976);
Cox Broadcasting Corp. v. Cohn,
420 U. S. 469,
420 U. S.
487-497 (1975). The First Amendment right asserted by
petitioner in this case, in contrast, is not the right to publicize
information in its possession, but the right to acquire access
thereto.
I have long believed that a proper construction of the First
Amendment embraces a right of access to information about the
conduct of public affairs.
"As Madison wrote:"
"A popular Government, without popular information or the means
of acquiring it, is but a Prologue to a Farce or a Tragedy; or,
perhaps both. Knowledge will forever govern ignorance: and a people
who mean to be their own Governors must arm themselves with the
power which knowledge gives."
"9 Writings of James Madison 103 (G. Hunt ed.1910). It is not
sufficient, therefore, that the channels of communication be free
of governmental restraints. Without some protection for the
acquisition of information about the operation of public
institutions such as prisons by the public at large, the process of
self-governance contemplated by the Framers would be stripped of
its substance."
"For that reason, information-gathering is entitled to some
measure of constitutional protection."
Houchins v. KQED, Inc., 438 U. S.
1,
438 U. S. 31-32
(1978) (STEVENS, J., dissenting). [
Footnote 2/3]
Page 478 U. S. 19
Neither our elected nor our appointed representatives may
abridge the free flow of information simply to protect their own
activities from public scrutiny. An official policy of secrecy must
be supported by some legitimate justification that serves the
interest of the public office. Thus, in
Pell v. Procunier,
417 U. S. 817
(1974), and
Saxbe v. Washington Post Co., 417 U.
S. 843 (1974), we confirmed that the warden's regulation
of prearranged inmate press interviews had a legitimate
disciplinary and penological basis, and was
"not part of an attempt by the State to conceal the conditions
in its prisons or to frustrate the press' investigation and
reporting of those conditions."
Pell v. Procunier, 417 U.S. at
417 U. S. 830.
Accord, Saxbe v. Washington Post Co., 417 U.S. at
417 U. S. 848.
Likewise, in
Gannett Co. v. DePasquale, 443 U.
S. 368 (1979), we held that any First Amendment access
right "was given all appropriate deference by the state
nisi
prius court,"
id. at
443 U. S. 392,
which had entered a "finding on the record that an open suppression
hearing would pose a
reasonable probability of prejudice to
these defendants,'" id. at 443 U. S. 376.
Conversely, in Richmond Newspapers, Inc. v. Virginia,
448 U. S. 555
(1980), a violation of the First Amendment was established by the
"total absence of any record justification for the closure order,"
id. at 448 U. S. 584
(STEVENS, J., concurring). Accord, id. at 448 U. S.
580-581 (opinion of BURGER, C.J.). The same
constitutional infirmity afflicted the order excluding the public
from attending the testimony of minor victims in a sex offense
trial in Globe Newspaper Co. v. Superior Court,
457 U. S. 596,
457 U. S.
608-609 (1982) ("the record indicates that the victims
may have been willing to testify despite the presence of the press"
(footnote omitted)), and the order closing the voir dire
proceedings and sealing the transcript in Press-Enterprise Co.
v. Superior Court, 464 U. S. 501,
464 U. S.
510-511 (1984) ("prolonged closure was unsupported by
findings"); id. at 464 U. S. 513
("trial judge provided no explanation" for his
Page 478 U. S. 20
"broad order");
id. at
464 U. S. 515
(BLACKMUN, J., concurring).
Cf. Waller v. Georgia,
467 U. S. 39,
467 U. S. 48, n.
7,
467 U. S. 49, n.
8 (1984). [
Footnote 2/4]
But it has always been apparent that the freedom to obtain
information that the government has a legitimate interest in not
disclosing,
see Globe Newspaper Co. v. Superior Court, 457
U.S. at
457 U. S. 621
(STEVENS, J., dissenting), is far narrower than the freedom to
disseminate information, which is "virtually absolute" in most
contexts,
Richmond Newspapers, Inc. v. Virginia, 448 U.S.
at
448 U. S. 582
(STEVENS, J., concurring). In this case, the risk of prejudice to
the defendant's right to a fair trial is perfectly obvious. For me,
that risk is far more significant than the countervailing interest
in publishing the transcript of the preliminary hearing sooner,
rather than later.
Cf. Gannett Co. v. DePasquale, 443 U.S.
at
443 U. S. 393
(upholding closure of suppression hearing in part because "any
denial of access in this case was not absolute, but only
temporary"). The interest in prompt publication -- in my view -- is
no greater than the interest in prompt publication of grand jury
transcripts. As explained more fully below, we have always
recognized the legitimacy of the governmental interest in the
secrecy of grand jury proceedings, and I am unpersuaded that the
difference between such proceedings and the rather elaborate
procedure for determining probable cause that California has
adopted strengthens the First Amendment claim to access asserted in
this case.
Page 478 U. S. 21
II
The Court nevertheless reaches the opposite conclusion by
applying the "two complementary considerations,"
ante at
478 U. S. 8, of
"experience and logic,"
ante at
478 U. S. 9. In my
view, neither the Court's reasoning nor the result it reaches is
supported by our precedents.
The historical evidence proffered in this case is far less
probative than the evidence adduced in prior cases granting public
access to criminal proceedings. In those cases, a common law
tradition of openness at the time the First Amendment was ratified
suggested an intention and expectation on the part of the Framers
and ratifiers that those proceedings would remain presumptively
open. Thus, in
Richmond Newspapers, Inc. v. Virginia, 448
U.S. at
448 U. S. 564,
THE CHIEF JUSTICE explained that "[w]hat is significant for present
purposes is that, throughout its evolution, the trial has been open
to all who cared to observe."
"[T]he historical evidence demonstrates conclusively that,
at the time when our organic laws were adopted, criminal
trials both here and in England had long been presumptively
open."
Id. at
448 U. S. 569
(emphasis added). History was relevant because it demonstrated
that
"[t]he Bill of Rights was enacted against the backdrop of the
long history of trials' being presumptively open. Public access to
trials was then regarded as an important aspect of the process
itself."
Id. at
448 U. S. 575.
The opinion for the Court in
Globe Newspaper Co. v. Superior
Court, 457 U.S. at
457 U. S. 605,
which also concerned the presumptive openness of a criminal trial,
relied expressly on the opinion of THE CHIEF JUSTICE in
Richmond Newspapers for the point that criminal trials
were open "at the time when our organic laws were adopted." 448
U.S. at
448 U. S. 569.
Later, in
Press-Enterprise Co. v. Superior Court, the
Court quoted the identical passage from
Richmond Newspapers,
see 464 U.S. at
464 U. S. 505,
and concluded that "[p]ublic jury selection thus was the common
practice in America when the Constitution was
Page 478 U. S. 22
adopted,"
id. at
464 U. S. 508.
To dispel any doubt regarding the significance of this evidence, we
explained that
"the question we address -- whether the
voir dire
process must be open -- focuses on First . . . Amendment values
and the historical backdrop against which the First Amendment
was enacted."
Id. at
464 U. S. 509,
n. 8 (emphasis added). Thus, in our prior cases, history mattered
primarily for what it revealed about the intentions of the Framers
and ratifiers of the First Amendment.
In this case, however, it is uncontroverted that a common law
right of access did not inhere in preliminary proceedings at the
time the First Amendment was adopted, and that the Framers and
ratifiers of that provision could not have intended such
proceedings to remain open. As Justice Stewart wrote for the Court
in
Gannett Co. v. DePasquale:
"[T]here exists no persuasive evidence that, at common law,
members of the public had any right to attend pretrial proceedings;
indeed, there is substantial evidence to the contrary. By the time
of the adoption of the Constitution, . . . pretrial proceedings,
precisely because of the . . . concern for a fair trial, were never
characterized by the same degree of openness as were actual
trials."
"Under English common law, the public had no right to attend
pretrial proceedings.
E.g., E. Jenks, The Book of English
Law 75 (6th ed.1967) ("It must, of course, be remembered that the
principle of publicity only applies to the actual trial of a case,
not necessarily to the preliminary or prefatory stages of the
proceedings. . . ."); F. Maitland, Justice and Police 129 (1885)
(The "preliminary examination of accused persons had gradually
assumed a very judicial form. . . . The place in which it is held
is indeed no
open court,' the public can be excluded if the
magistrate thinks that the ends of justice will thus be best
answered. . . ."). See also Indictable Offences Act, 11
& 12 Vict., ch. 42, § 19 (1848) (providing
Page 478 U. S. 23
that pretrial proceedings should not be deemed an open court,
and that the public could therefore be excluded); Magistrates'
Courts Act, 15 & 16 Geo. 6 & 1 Eliz. 2, ch. 55, § 4(2)
(1952) (same)."
443 U.S. at
443 U. S.
387-389 (footnotes omitted). [
Footnote 2/5] Justice Stewart included in his discussion
the following quotation from Lord Ellenborough; the Law Lord
explains, in reasons as relevant today as they were when the Bill
of Rights was adopted, the historical basis for the closure of
preliminary proceedings:
"If anything is more important than another in the
administration of justice, it is that jurymen should come to the
trial of those persons on whose guilt or innocence they are to
decide with minds pure and unprejudiced. . . . Trials at law fairly
reported, although they may occasionally prove injurious to
individuals, have been held to be privileged. Let them continue so
privileged. . . . But these preliminary examinations have no such
privilege. Their only tendency is to prejudge those whom the law
still presumes to be innocent, and to poison the sources of
justice."
King v. Fisher, 2 Camp. 563, 570-571, 170 Eng.Rep.
1253, 1255 (N.P. 1811).
In the final analysis, the Court's lengthy historical
disquisition demonstrates only that, in many States, preliminary
proceedings are generally open to the public.
See ante at
478 U. S. 10-11,
n. 3. In other States, numbering California and Michigan among
them,
see In re Midland Publishing Co.,
Page 478 U. S. 24
420 Mich. 148, 162, 172-174,
362 N.W.2d
580, 588, 593-594 (1984), such proceedings have been closed.
[
Footnote 2/6] To paraphrase the
Court's analysis in
McMillan v. Pennsylvania, 477 U. S.
79,
477 U. S. 90
(1986) (footnote omitted), "the fact that the States" have adopted
different rules regarding the openness of preliminary
proceedings
"is merely a reflection of our federal system, which demands
'[t]olerance for a spectrum of state procedures dealing with a
common problem of law enforcement,'
Spencer v. Texas,
385 U. S.
554,
385 U. S. 566 (1967). That
[California's] particular approach has been adopted in few other
States does not render [its] choice unconstitutional.
Page 478 U. S. 25
As Justice Stewart admonished: we must not 'confus[e] the
existence of a constitutional right with the common law tradition
of open . . . proceedings.'
Gannett Co. v. DePasquale, 443
U.S. at
443 U. S. 389, n.19. The
recent common law developments reported by the Court are relevant,
if at all, only insofar as they suggest that preliminary
proceedings merit the 'beneficial effects of public scrutiny.'
Cox Broadcasting Corp. v. Cohn, 420 U.S. at
420 U. S.
492. The Court's historical crutch cannot carry the
weight of opening a preliminary proceeding that the State has
ordered closed; that determination must stand or fall on whether it
satisfies the second component of the Court's test."
If the Court's historical evidence proves too little, the
"
value of openness,'" ante at 478 U. S. 13
(quoting Press-Enterprise Co. v. Superior Court, 464 U.S.
at 464 U. S.
508), on which it relies proves too much, for this
measure would open to public scrutiny far more than preliminary
hearings "as they are conducted in California" (a comforting phrase
invoked by the Court in one form or another more than eight times
in its opinion). [Footnote 2/7] In
brief, the Court's rationale for opening the "California
preliminary hearing" is that it "is often the final and most
important step in the criminal proceeding"; that it provides "`the
sole occasion for public observation of the criminal justice
system;'" that it lacks the protective presence
Page 478 U. S. 26
of a jury; and that closure denies an outlet for community
catharsis.
Ante at
478 U. S. 12,
478 U. S. 13
(quotation omitted). The obvious defect in the Court's approach is
that its reasoning applies to the traditionally secret grand jury
with as much force as it applies to California preliminary
hearings. A grand jury indictment is just as likely to be the
"final step" in a criminal proceeding and the "sole occasion" for
public scrutiny as is a preliminary hearing. Moreover, many critics
of the grand jury maintain that the grand jury protects the accused
less well than does a legally knowledgeable judge who personally
presides over a preliminary hearing.
See Hawkins v. Superior
Court, 22 Cal. 2d 584, 590, 586 P.2d 916, 919-920 (1978)
(holding deprivation of preliminary hearing to constitute a denial
of equal protection under State Constitution in part because "`the
grand jury is the total captive of the prosecutor who, if he is
candid, will concede that he can indict anybody, at any time, for
almost anything, before any grand jury'" (quoting Campbell,
Eliminate the Grand Jury, 64 J.Crim.L. & C. 174 (1973))).
Finally, closure of grand juries denies an outlet for community
rage. When the Court's explanatory veneer is stripped away, what
emerges is the reality that the California preliminary hearing is
functionally identical to the traditional grand jury. As THE CHIEF
JUSTICE emphasized by his quotation of
Cox v. Coleridge, 1
B. & C. 37, 49-50, 107 Eng.Rep. 15, 19-20 (1822), in his
concurring opinion in
Gannett Co. v. DePasquale, 443 U.S.
at
443 U. S. 395,
n. (emphasis added):
"'It [the proceeding] is only a preliminary inquiry, whether
there be sufficient ground to commit the prisoner for trial. The
proceeding before the grand jury is
precisely of the same
nature, and it would be difficult, if the right exists in the
present case, to deny it in that. This being only a
preliminary inquiry, and not a trial, makes, in my mind, all the
difference.'"
The Court's reasoning -- if carried to its logical outcome --
thus contravenes the "long-established policy that maintains
Page 478 U. S. 27
the secrecy of the grand jury proceedings in the federal courts"
and in the courts of 19 States.
United States v. Procter &
Gamble Co., 356 U. S. 677,
356 U. S. 681
(1958). "Despite the fact that newsgathering may be hampered, the
press is regularly excluded from grand jury proceedings."
Branzburg v. Hayes, 408 U. S. 665,
408 U. S.
684-685 (1972). This Court has previously described
grand jury secrecy as "indispensable,"
United States v.
Johnson, 319 U. S. 503,
319 U. S. 513
(1943), and has remarked that "
the proper functioning of our
grand jury system depends upon the secrecy of grand jury
proceedings,'" United States v. Sells Engineering, Inc.,
463 U. S. 418,
463 U. S. 424
(1983) (quoting Douglas Oil Co. v. Petrol Stops Northwest,
441 U. S. 211,
441 U. S. 218
(1979)). [Footnote 2/8]
In fact, the logic of the Court's access right extends even
beyond the confines of the criminal justice system to encompass
proceedings held on the civil side of the docket as well. As
Justice Stewart explained:
"If the existence of a common law rule were the test for whether
there is a Sixth Amendment public right to a public trial,
therefore, there would be such a right in civil, as well as
criminal, cases. . . . In short, there is no principled basis upon
which a public right of access to judicial
Page 478 U. S. 28
proceedings can be limited to criminal cases if the scope of the
right is defined by the common law, rather than the text and
structure of the Constitution."
"Indeed, many of the advantages of public criminal trials are
equally applicable in the civil trial context. Thus, in some civil
cases, the public interest in access, and the salutary effect of
publicity, may be as strong as, or stronger than, in most criminal
cases."
Gannett Co. v. DePasquale, 443 U.S. at
443 U. S.
386-387, n. 15.
Cf. Seattle Times Co. v.
Rhinehart, 467 U. S. 20,
467 U. S. 29-37
(1984) (newspaper not allowed to publish information to which it
was privy as a litigant in a civil action). Despite the Court's
valiant attempt to limit the logic of its holding, the
ratio
decidendi of today's decision knows no bounds.
By abjuring strict reliance on history and emphasizing the broad
value of openness, the Court tacitly recognizes the importance of
public access to government proceedings generally. Regrettably, the
Court has taken seriously the stated requirement that the sealing
of a transcript be justified by a "compelling" or "overriding"
governmental interest, and that the closure order be "
narrowly
tailored to serve that interest.'" Ante at 487 U. S. 9
(quoting Press-Enterprise Co. v. Superior Court, 464 U.S.
at 464 U. S. 501);
Press-Enterprise Co. v. Superior Court, 464 U.S. at
464 U. S. 510
(quoting Globe Newspaper Co. v. Superior Court, 457 U.S.
at 457 U. S.
607). See ante at 487 U. S. 13-14.
This standard -- as well as the two-part test of history and logic
that formed the basis for the decision today -- originated as two
"helpful principles" in JUSTICE BRENNAN's eloquent concurrence in
Richmond Newspapers, Inc. v. Virginia, 448 U.S. at
448 U. S. 589.
That concurrence recognized that "`[t]here are few restrictions on
action which could not be clothed by ingenious argument in the garb
of decreased data flow,'" id. at 448 U. S. 588
(quoting Zemel v. Rusk, 381 U. S. 1,
381 U. S. 16-17
(1965)), and -- in contrast with the decision today -- stressed
that
"[a]n assertion of the prerogative to gather information must
accordingly be assayed by considering the information sought
Page 478 U. S. 29
and the opposing interests invaded,"
448 U.S. at
448 U. S. 588
(footnote omitted) -- a determination "as much a matter of
sensitivity to practical necessities as . . . of abstract
reasoning,"
ibid. The cases denying access have done so on
a far lesser showing than that required by a compelling
governmental interest/least restrictive means analysis,
see
supra, at
478 U. S. 19-20,
and cases granting access have recognized as legitimate grounds for
closure interests that fall far short of those traditionally
thought to be "compelling,"
see Press-Enterprise Co. v.
Superior Court, 464 U.S. at
464 U. S.
511-512 (privacy interest of venirepersons sufficient
reason to close presumptively open
voir dire proceeding);
see also Richmond Newspapers, Inc. v. Virginia, 448 U.S.
at
448 U. S. 600
(Stewart, J., concurring in judgment).
The presence of a legitimate reason for closure in this case
requires an affirmance. The constitutionally grounded fair trial
interests of the accused if he is bound over for trial, and the
reputational interests of the accused if he is not, provide a
substantial reason for delaying access to the transcript for at
least the short time before trial. By taking its own verbal
formulation seriously, the Court reverses -- without comment or
explanation or any attempt at reconciliation -- the holding in
Gannett that a "reasonable probability of prejudice" is
enough to overcome the First Amendment right of access to a
preliminary proceeding. It is unfortunate that the Court neglects
this opportunity to fit the result in this case into the body of
precedent dealing with access rights generally. I fear that today's
decision will simply further unsettle the law in this area.
I respectfully dissent.
[
Footnote 2/1]
In so ruling, the Magistrate recognized that he had "an
affirmative constitutional duty to insure that a defendant has a
fair trial," App. 37a, under
Gannett Co. v. DePasquale,
443 U. S. 368,
443 U. S. 378
(1979) ("To safeguard the due process rights of the accused, a
trial judge has an affirmative constitutional duty to minimize the
effects of prejudicial pretrial publicity. And because of the
Constitution's pervasive concern for these due process rights, a
trial judge may surely take protective measures even when they are
not strictly and inescapably necessary" (citation omitted)).
[
Footnote 2/2]
Indeed, the Court of Appeal determined that "[t]he release of
the transcript and employment of these alternatives would tend to
exacerbate the existing prejudice." App. to Pet. for Cert.
E-15 (emphasis added and citation omitted).
[
Footnote 2/3]
See Richmond Newspapers, Inc. v. Virginia, 448 U.
S. 555,
448 U. S.
586-589 (1980) (BRENNAN, J., concurring in judgment);
Saxbe v. Washington Post Co., 417 U.
S. 843,
417 U. S.
862-864 (1974) (POWELL, J., dissenting). In a footnote
to my separate writing in
Houchins, I appended a quotation
from Justice Stewart's dissenting opinion in
Branzburg v.
Hayes, 408 U. S. 665,
408 U. S. 728
(1972) (emphasis added), where he stated that "a right to gather
news,
of some dimensions, must exist." The majority agreed
with this observation, acknowledging that "news gathering is not
without its First Amendment protections,"
id. at
408 U. S. 707,
for "without some protection for seeking out the news, freedom of
press could be eviscerated,"
id. at
408 U. S. 681.
See also Zemel v. Rusk, 381 U. S. 1,
381 U. S. 16-17
(1965) ("The right to speak and publish does not carry with it the
unrestrained right to gather information" (emphasis
added)).
[
Footnote 2/4]
In
Houchins, I explained why I believed that the
plaintiffs were entitled to put an end to the warden's policy of
concealing prison conditions from the public.
"Those conditions are wholly without claim to confidentiality.
While prison officials have an interest in the time and manner of
public acquisition of information about the institutions they
administer, there is no legitimate penological justification for
concealing from citizens the conditions in which their fellow
citizens are being confined."
438 U.S. at
438 U. S. 35-36.
It seemed clear that an
"official prison policy of concealing such knowledge from the
public by arbitrarily cutting off the flow of information at its
source abridges the freedom of speech and of the press protected by
the First and Fourteenth Amendments to the Constitution."
Id. at
438 U. S. 38
(footnote omitted).
[
Footnote 2/5]
Accord, Geis, Preliminary Hearings and the Press, 8
UCLA L.Rev. 397, 406 (1961) ("Preliminary hearings in the American
colonies closely followed the prescriptions of the sixteenth
century English statutes" (footnote omitted)). THE CHIEF JUSTICE
pointed out in his concurring opinion in
Gannett that,
"[a]t common law, there was a very different presumption
[
i.e., in favor of closure] for proceedings which preceded
the trial." 443 U.S. at
443 U. S.
394.
"[N]o one ever suggested that there was any 'right' of the
public to be present at such pretrial proceedings as were available
in that time [that the Bill of Rights was adopted]."
Id. at
443 U. S.
396.
[
Footnote 2/6]
Ironically, California and Michigan are both States in which
preliminary proceedings are generally open to the public, and are
thus -- surprisingly -- part of the recent common law trend in
favor of openness relied on by the Court. It is only on the facts
of record in this case that the California courts ordered the
transcript sealed. Since many -- if not most -- of the state court
decisions collected by the Court hold that the right to a public
preliminary hearing is personal to the accused,
see, e.g.,
State v. Porter Superior Court, 274 Ind. 408, 409-410,
412 N.E.2d
748, 750 (1980);
Azbill v. Fisher, 84 Nev. 414, 419,
442 P.2d 916,
918-919 (1968), or, more commonly, that it is overcome by a showing
of potentially prejudicial publicity equivalent to or less than
that required in California,
see, e.g., State v. Burak, 37
Conn.Supp. 627, 630, 431 A.2d 1246, 1248 (1981) ("likelihood of
prejudice");
United States v. Edwards, 430
A.2d 1321, 1345 (D.C.1981) ("likelihood"),
cert.
denied, 455 U.S. 1022 (1982);
Gannett Pacific Corp. v.
Richardson, 59 Haw. 224, 233,
580 P.2d 49, 56
(1978) ("substantial likelihood");
Westchester Rockland
Newspapers v. Leggett, 48 N.Y.2d 430, 442, 399 N.E.2d 518, 525
(1979) ("strong likelihood");
Kearns-Tribune Corp. v.
Lewis, 685 P.2d 515, 523
(Utah 1984) ("
realistic likelihood of prejudice'");
Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574,
589, 281 S.E.2d
915, 923 (1981) ("likelihood"); Federated Publications,
Inc. v. Kurtz, 94 Wash. 2d
51, 62, 615 P.2d
440, 446 (1980) ("likelihood of jeopardy"), courts in these
States would presumably have also denied access if presented with
the facts of this case. On this observation, and in view of the
fact that the reasoning of the state courts is heavily dependent on
this Court's cases granting access to criminal proceedings (even if
they are ultimately grounded in state law), it is remarkable that
the Court finds any historical basis for a public right of access
to preliminary proceedings on a showing in excess of that required
in California and met by the defendant in this case.
[
Footnote 2/7]
Given the Court's focus on the history of preliminary
proceedings in general, and its reliance on the broad values served
by openness,
see ante at 13, I do not see the relevance of
the fact that preliminary proceedings in California bear an outward
resemblance to criminal trials. To the extent that it matters that,
in California,
"[t]he accused has the right to personally appear at the
hearing, to be represented by counsel, to cross-examine hostile
witnesses, to present exculpatory evidence, and to exclude
illegally obtained evidence,"
ante at 12 (citing Cal.Penal Code Ann. §§ 859-866 (West
1985), § 1538.5 (West 1982)), it bears mention that many other
States have reformed their grand juries to include one or more of
these procedural reforms,
see W. LaFave & J. Israel,
Criminal Procedure § 15.2(b) (1984). After today's decision, one
can only wonder whether the public enjoys a right of access to any
or all of these proceedings as well.
[
Footnote 2/8]
Five reasons are commonly given for the policy of grand jury
secrecy:
"'(1) To prevent the escape of those whose indictment may be
contemplated; (2) to insure the utmost freedom to the grand jury in
its deliberations, and to prevent persons subject to indictment or
their friends from importuning the grand jurors; (3) to prevent
subornation of perjury or tampering with the witnesses who may
testify before [the] grand jury and later appear at the trial of
those indicted by it; (4) to encourage free and untrammeled
disclosures by persons who have information with respect to the
commission of crimes; (5) to protect the innocent accused who is
exonerated from disclosure of the fact that he has been under
investigation, and from the expense of standing trial where there
was no probability of guilt.'"
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at
441 U. S. 219,
n. 10 (quoting
United States v. Rose, 215 F.2d 617,
628-629 (CA3 1954));
United States v. Procter & Gamble
Co., 356 U. S. 677,
356 U. S. 681,
n. 6 (1958) (same).
See Illinois v. Abbott & Associates,
Inc., 460 U. S. 557,
460 U. S.
566-567, n. 11 (1983).