At a pretrial hearing on a motion to suppress allegedly
involuntary confessions and certain physical evidence, respondents
Greathouse and Jones, who were defendants in a state prosecution
for second-degree murder, robbery, and grand larceny, requested
that the public and the press be excluded from the hearing, arguing
that the unabated buildup of adverse publicity had jeopardized
their ability to receive a fair trial. The District Attorney did
not oppose the motion, and a reporter employed by petitioner, whose
newspapers had given extensive coverage of the crime through the
defendants' indictment and arraignment, made no objection at the
time of the closure motion, though she was present in the
courtroom. Respondent trial judge granted the motion, and, in
response to the reporter's letter on the next day asserting a right
to cover the hearing and requesting access to the transcript,
stated that the suppression hearing had concluded and that any
decision on immediate release of the transcript had been reserved.
Petitioner then moved to have the closure order set aside but the
trial judge, after a hearing, refused to vacate the order or grant
petitioner immediate access to the transcript, ruling that the
interest of the press and the public was outweighed by the
defendants' right to a fair trial. Petitioner immediately commenced
a proceeding in the nature of prohibition and mandamus in the New
York Supreme Court, Appellate Division, challenging the trial
court's orders on First, Sixth, and Fourteenth Amendment grounds.
The Appellate Division vacated the orders, holding that they
transgressed the public's vital interest in open judicial
proceedings and further constituted an unlawful prior restraint in
violation of the First and Fourteenth Amendments. The New York
Court of Appeals, although holding that the case was technically
moot because, shortly before entry of the Appellate Division's
judgment, the defendants had pleaded guilty to lesser included
offenses and a transcript of the suppression hearing was made
available to petitioner, nevertheless retained jurisdiction in view
of the importance of the issues, and upheld the exclusion of the
press and the public from the pretrial proceeding.
Held:
1. The controversy is not moot. This Court's jurisdiction is not
defeated
Page 443 U. S. 369
"simply because the order attacked has expired, if the
underlying dispute between the parties is one 'capable of
repetition, yet evading review.'"
Nebraska Press Assn. v. Stuart, 427 U.
S. 539,
427 U. S. 546.
Here, the order closing the pretrial hearing is too short in its
duration to permit full review, and it is reasonably to be expected
that petitioner will be subjected to similar closure orders in the
future. Pp.
443 U. S.
377-378.
2. The Constitution does not give petitioner an affirmative
right of access to the pretrial proceeding, all the participants in
the litigation having agreed that it should be closed to protect
the fair trial rights of the defendants. Pp.
443 U. S.
378-394.
(a) 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 he may take
protective measures even when they are not strictly and inescapably
necessary. Publicity concerning pretrial suppression hearings poses
special risks of unfairness because it may influence public opinion
against a defendant and inform potential jurors of inculpatory
information wholly inadmissible at the actual trial. Pp.
443 U. S.
378-379.
(b) The Sixth Amendment's guarantee of a public trial is for the
benefit of the defendant alone. The Constitution nowhere mentions
any right of access to a criminal trial on the part of the public.
Cf. In re Oliver, 333 U. S. 257;
Estes v. Texas, 381 U. S. 532.
While there is a strong societal interest in public trials,
nevertheless members of the public do not have an enforceable right
to a public trial that can be asserted independently of the parties
in the litigation. The adversary system of criminal justice is
premised upon the proposition that the public interest is fully
protected by the participants in the litigation. Pp.
443 U. S.
379-384.
(c) The history of the Sixth Amendment's public trial guarantee
demonstrates no more than the existence of a common law rule of
open civil and criminal proceedings, not a constitutional right of
members of the general public to attend a criminal trial. Even if
the Sixth and Fourteenth Amendments could properly be viewed as
embodying the common law right of the public to attend criminal
trials, there is no persuasive evidence that the public had any
right at common law to attend pretrial proceedings. To the
contrary, by the time of the adoption of the Constitution, public
trials were clearly associated with the protection of the
defendant, and pretrial proceedings, precisely because of the same
concern for a fair trial, were never characterized by the same
degree of openness a were actual trials. Pp
443 U. S.
384-391.
(d) Even assuming,
arguendo, that the First and
Fourteenth Amendments may guarantee a right to members of the press
and the public
Page 443 U. S. 370
to attend criminal trials in some situations, this putative
right was given all appropriate deference by the state
nisi
prius court in the present case. Even though none of the
spectators present in the courtroom, including petitioner's
reporter, objected when t.he defendants made the closure motion,
petitioner's counsel was given an opportunity to be heard, and the
trial court thereafter concluded that the defendants' right to a
fair trial outweighed the "constitutional rights of the press and
the public." Furthermore, any denial of access was only temporary;
once the danger of prejudice .had dissipated, a transcript of the
suppression hearing was made available. Thus, any First and
Fourteenth Amendment right of petitioner to attend criminal trials
was not violated. Pp.
443 U. S.
391-393.
43 N.Y.2d 370. 372 N.E.2d 544. affirmed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and POWELL, REHNQUIST, and STEVENS, JJ., joined.
BURGER, C.J.,
post, p.
443 U. S. 394,
POWELL, J.,
post, p.
443 U. S. 397,
and REHNQUIST, J.,
post, p.
443 U. S. 403,
filed concurring opinions. BLACKMUN, J., filed an opinion
concurring in part and dissenting in part, in which BRENNAN, WHITE,
and MARSHALL, JJ., joined,
post, p.
443 U. S.
406.
MR. JUSTICE STEWART delivered the opinion of the Court.
The question presented in this case is whether members of the
public have an independent constitutional right to insist upon
access to a pretrial judicial proceeding, even though
Page 443 U. S. 371
the accused, the prosecutor, and the trial judge all have agreed
to the closure of that proceeding in order to assure a fair
trial.
Wayne Clapp, aged 42 and residing at Henrietta, a Rochester,
N.Y. suburb, disappeared in July 1976. He was last seen on July 16,
when, with two male companions, he went out on his boat to fish in
Seneca Lake, about 40 miles from Rochester. The two companions
returned in the boat the same day and drove away in Clapp's pickup
truck. Clapp was not with them. When he failed to return home by
July 19, his family reported his absence to the police. An
examination of the boat, laced with bulletholes, seemed to indicate
that Clapp had met a violent death aboard it. Police then began an
intensive search for the two men. They also began lake-dragging
operations in an attempt to locate Clapp's body.
The petitioner, Gannett Co., Inc., publishes two Rochester
newspapers, the morning Democrat & Chronicle and the evening
Times-Union. [
Footnote 1] On
July 20, each paper carried its first
Page 443 U. S. 372
story about Clapp's disappearance. Each reported the few details
that were then known, and stated that the police were theorizing
that Clapp had been shot on his boat and his body dumped overboard.
Each stated that the body was missing. The Times-Union mentioned
the names of respondents Greathouse and Jones and said that
Greathouse "was identified as one of the two companions who
accompanied Clapp Friday" on the boat; said that the two were aged
16 and 21, respectively; and noted that the police were seeking the
two men and Greathouse's wife, also 16. Accompanying the evening
story was a 1959 photograph of Clapp. The report also contained an
appeal from the state police for assistance.
Michigan police apprehended Greathouse, Jones, and the woman on
July 21. This came about when an interstate bulletin describing
Clapp's truck led to their discovery in Jackson County, Mich., by
police who observed the truck parked at a local motel. The
petitioner's two Rochester papers on July 22 reported the details
of the capture. The stories recounted how the Michigan police,
after having arrested Jones in a park, used a helicopter and dogs
and tracked down Greathouse and the woman in some woods. They
recited that Clapp's truck was located near the park.
The stories also stated that Seneca County police theorized that
Clapp was shot with his own pistol, robbed, and his body thrown
into Seneca Lake. The articles provided background on Clapp's life,
sketched the events surrounding his disappearance, and said that
New York had issued warrants for the arrest of the three persons.
One of the articles reported that the Seneca County District
Attorney would seek to extradite the suspects and would attempt to
carry through with a homicide prosecution even if Clapp's body were
not found. The paper also quoted the prosecutor as stating,
however, that
Page 443 U. S. 373
the evidence was still developing and "the case could change."
The other story noted that Greathouse and Jones were from Texas and
South Carolina, respectively.
Both papers carried stories on July 23. These revealed that
Jones, the adult, had waived extradition, and that New York police
had traveled to Michigan and were questioning the suspects. The
articles referred to police speculation that extradition of
Greathouse and the woman might involve "legalities" because they
were only 16, and considered juveniles in Michigan. The morning
story provided details of an interview with the landlady from whom
the suspects had rented a room while staying in Seneca County at
the time Clapp disappeared. It also noted that Greathouse,
according to state police, was on probation in San Antonio, Tex.,
but that the police did not know the details of his criminal
record.
The Democrat & Chronicle carried another story on the
morning of July 24. It stated that Greathouse had led the Michigan
police to the spot where he had buried a .357 magnum revolver
belonging to Clapp, and that the gun was being returned to New York
with the three suspects. It also stated that the police had found
ammunition at the motel where Greathouse and the woman were
believed to have stayed before they were arrested. The story
repeated the basic facts known about the disappearance of Clapp and
the capture of the three suspects in Michigan. It stated that New
York police continued to search Seneca Lake for Clapp's body.
On July 25, the Democrat & Chronicle reported that
Greathouse and Jones had been arraigned before a Seneca County
Magistrate on second-degree murder charges shortly after their
arrival from Michigan; that they and the woman also had been
arraigned on charges of second-degree grand larceny; that the three
had been committed to the Seneca County jail; that all three had
"appeared calm" during the court session; and that the Magistrate
had read depositions signed by three witnesses, one of whom
testified to having heard "five or six
Page 443 U. S. 374
shots" from the lake on the day of the disappearance, just
before seeing Clapp's boat "veer sharply" in the water.
Greathouse, Jones, and the woman were indicted by a Seneca
County grand jury on August 2. The two men were charged, in several
counts, with second-degree murder, robbery, and grand larceny. The
woman was indicted on one count of grand larceny. Both the Democrat
& Chronicle and the Times-Union on August 3 reported the filing
of the indictments. Each story stated that the murder charges
specified that the two men had shot Clapp with his own gun, had
weighted his body with anchors and tossed it into the lake, and
then had made off with Clapp's credit card, gun, and truck. Each
reported that the defendants were held without bail, and each again
provided background material with details of Clapp's disappearance.
The fact that Clapp's body still had not been recovered was
mentioned. One report noted that, according to the prosecutor, if
the body were not recovered prior to trial, "it will be the first
such trial in New York State history." Each paper on that day also
carried a brief notice that a memorial service for Clapp would be
held that evening in Henrietta. These notices repeated that
Greathouse and Jones had been charged with Clapp's murder and that
his body had not been recovered.
On August 6, each paper carried a story reporting the details of
the arraignments of Greathouse and Jones the day before. The papers
stated that both men had pleaded not guilty to all charges. Once
again, each story repeated the basic facts of the accusations
against the men and noted that the woman was arraigned on a larceny
charge. The stories noted that defense attorneys had been given 90
days in which to file pretrial motions.
During this 90-day period, Greathouse and Jones moved to
suppress statements made to the police. The ground they asserted
was that those statements had been given involuntarily. [
Footnote 2]
Page 443 U. S. 375
They also sought to suppress physical evidence seized as fruits
of the allegedly involuntary confessions; the primary physical
evidence they sought to suppress was the gun to which, as
petitioner's newspaper had reported, Greathouse had led the
Michigan police.
The motions to suppress came on before Judge DePasquale on
November 4. [
Footnote 3] At
this hearing, defense attorneys argued that the unabated buildup of
adverse publicity had jeopardized the ability of the defendants to
receive a fair trial. They thus requested that the public and the
press be excluded from the hearing. The District Attorney did not
oppose the motion. Although Carol Ritter, a reporter employed by
the petitioner, was present in the courtroom, no objection was made
at the time of the closure motion. The trial judge granted the
motion.
The next day, however, Ritter wrote a letter to the trial judge
asserting a "right to cover this hearing," and requesting that "we
. . . be given access to the transcript." The judge responded later
the same day. He stated that the suppression hearing had concluded
and that any decision on immediate release of the transcript had
been reserved. The petitioner then moved the court to set aside its
exclusionary order.
Page 443 U. S. 376
The trial judge scheduled a hearing on this motion for November
16 after allowing the parties to file briefs. At this proceeding,
the trial judge stated that, in his view, the press had a
constitutional right of access although he deemed it "unfortunate"
that no representative of the petitioner had objected at the time
of the closure motion. Despite his acceptance of the existence of
this right, however, the judge emphasized that it had to be
balanced against the constitutional right of the defendants to a
fair trial. After finding on the record that an open suppression
hearing would pose a "reasonable probability of prejudice to these
defendants," the judge ruled that the interest of the press and the
public was outweighed in this case by the defendants' right to a
fair trial. The judge thus refused to vacate his exclusion order or
grant the petitioner immediate access to a transcript of the
pretrial hearing.
The following day, an original proceeding in the nature of
prohibition and mandamus, challenging the closure orders on First,
Sixth, and Fourteenth Amendment grounds, was commenced by the
petitioner in the Supreme Court of the State of New York, Appellate
Division, Fourth Department. On December 17, 1976, that court held
that the exclusionary orders transgressed the public's vital
interest in open judicial proceedings, and further constituted an
unlawful prior restraint in violation of the First and Fourteenth
Amendments. It accordingly vacated the trial court's orders. 55
App.Div.2d 107, 389 N.Y.S.2d 719 (1976).
On appeal, the New York Court of Appeals held that the case was
technically moot, [
Footnote 4]
but, because of the critical importance of the issues involved,
retained jurisdiction and reached the merits. The court noted that,
under state law,
Page 443 U. S. 377
"[c]riminal trials are presumptively open to the public,
including the press," but held that this presumption was overcome
in this case because of the danger posed to the defendants' ability
to receive a fair trial. Thus, the Court of Appeals upheld the
exclusion of the press and the public from the pretrial proceeding.
43 N.Y.2d 370, 372 N.E.2d 544 (1977). Because of the significance
of the constitutional questions involved, we granted certiorari.
435 U.S. 1006.
II
We consider, first, the suggestion of mootness, noted and
rejected by the New York Court of Appeals. 43 N.Y.2d at 376, 372
N.E.2d at 547. We conclude that this aspect of the case is governed
by
Nebraska Press Assn. v. Stuart, 427 U.
S. 539,
427 U. S.
546-547, and that the controversy is not moot. The
petitioner, of course, has obtained access to the transcript of the
suppression hearing. But this Court's jurisdiction is not defeated,
id. at
427 U. S.
546,
"simply because the order attacked has expired, if the
underlying dispute between the parties is one 'capable of
repetition, yet evading review.'
Southern Pacific Terminal Co.
v. ICC, 219 U. S. 498,
219 U. S.
515 (1911)."
To meet that test, two conditions must be satisfied:
"(1) the challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there
was a reasonable expectation that the same complaining party would
be subjected to the same action again."
Weinstein v. Bradford, 423 U.
S. 147,
423 U. S.
149.
Those conditions have been met. The order closing a pretrial
hearing is too short in its duration to permit full review. And, to
the extent the order has the effect of denying access to the
transcript, termination of the underlying criminal proceeding by a
guilty plea, as in this case, or by a jury verdict, nearly always
will lead to a lifting of the order before appellate review is
completed. The order is, "by nature, short-lived."
Nebraska
Press, supra, at
427 U. S. 547.
Further, it is reasonably to
Page 443 U. S. 378
be expected that the petitioner, as publisher of two New York
newspapers, will be subjected to similar closure orders entered by
New York courts in compliance with the judgment of that State's
Court of Appeals. We therefore turn to the merits.
III
This Court has long recognized that adverse publicity can
endanger the ability of a defendant to receive a fair trial.
E.g., Sheppard v. Maxwell, 384 U.
S. 333;
Irvin v. Dowd, 366 U.
S. 717;
Marshall v. United States, 360 U.
S. 310.
Cf. Estes v. Texas, 381 U.
S. 532. 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.
Sheppard v. Maxwell, supra. 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.
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.
The danger of publicity concerning pretrial suppression hearings
is particularly acute, because it may be difficult to measure with
any degree of certainty the effects of such publicity on the
fairness of the trial. After the commencement of the trial itself,
inadmissible prejudicial information about a defendant can be kept
from a jury by a variety of means. [
Footnote 5] When such information is publicized during a
pretrial
Page 443 U. S. 379
proceeding, however, it may never be altogether kept from
potential jurors. Closure of pretrial proceedings is often one of
the most effective methods that a trial judge can employ to attempt
to insure that the fairness of a trial will not be jeopardized by
the dissemination of such information throughout the community
before the trial itself has even begun.
Cf. Rideau v.
Louisiana, 373 U. S. 723.
[
Footnote 6]
IV
A
The Sixth Amendment, applicable to the States through the
Fourteenth, surrounds a criminal trial with guarantees such as the
rights to notice, confrontation, and compulsory process that have
as their overriding purpose the protection of the accused from
prosecutorial and judicial abuses. [
Footnote 7] Among the guarantees that the Amendment
provides to a person charged with the commission of a criminal
offense, and to him alone, is the "right to a speedy and public
trial, by an impartial jury." The Constitution nowhere mentions any
right of access to a criminal trial on the part of the public; its
guarantee,
Page 443 U. S. 380
like the others enumerated, is personal to the accused.
See
Faretta v. California, 422 U. S. 806,
422 U. S. 848
("[T]he specific guarantees of the Sixth Amendment are personal to
the accused.") (BLACKMUN, J., dissenting).
Our cases have uniformly recognized the public trial guarantee
as one created for the benefit of the defendant.
In In re
Oliver, 333 U. S. 257,
this Court held that the secrecy of a criminal contempt trial
violated the accused's right to a public trial under the Fourteenth
Amendment. The right to a public trial, the Court stated,
"has always been recognized as a safeguard against any attempt
to employ our courts as instruments of persecution. The knowledge
that every criminal trial is subject to contemporaneous review in
the forum of public opinion is an effective restraint on possible
abuse of judicial power."
Id. at
333 U. S. 270.
In an explanatory footnote, the Court stated that the public trial
guarantee
". . . 'is for the protection of all persons accused of crime --
the innocently accused, that they may not become the victim of an
unjust prosecution, as well as the guilty, that they may be awarded
a fair trial -- that one rule [as to public trials] must be
observed and applied to all.' Frequently quoted is the statement in
[1] Cooley, Constitutional Limitations (8th ed.1927) at 647:"
"The requirement of a public trial is for the benefit of the
accused; that the public may see he is fairly dealt with and not
unjustly condemned, and that the presence of interested spectators
may keep his triers keenly alive to a sense of their responsibility
and to the importance of their functions. . .."
Id. at
333 U. S. 270
n. 25. [
Footnote 8]
Similarly, in
Estes v. Texas, supra, the Court held
that a defendant was deprived of his right to due process of law
under the Fourteenth Amendment by the televising and
Page 443 U. S. 381
broadcasting of his trial. In rejecting the claim that the media
representatives had a constitutional right to televise the trial,
the Court stated that "[t]he purpose of the requirement of a public
trial was to guarantee that the accused would be fairly dealt with
and not unjustly condemned." 381 U.S. at
381 U. S.
538-539.
See also id. at
381 U. S. 588
("Thus the right of
public trial' is not one belonging to the
public, but one belonging to the accused, and inhering in the
institutional process by which justice is administered") (Harlan,
J., concurring); id. at 381 U. S. 583
("[T]he public trial provision of the Sixth Amendment is a
`guarantee to an accused' . . . [and] a necessary component of an
accused's right to a fair trial . . .") (Warren, C.J.,
concurring).
Thus, both the
Oliver and
Estes cases
recognized that the constitutional guarantee of a public trial is
for the benefit of the defendant. There is not the slightest
suggestion in either case that there is any correlative right in
members of the public to insist upon a public trial. [
Footnote 9]
Page 443 U. S. 382
B
While the Sixth Amendment guarantees to a defendant in a
criminal case the right to a public trial, it does not guarantee
the right to compel a private trial. "The ability to waive a
constitutional right does not ordinarily carry with it the right to
insist upon the opposite of that right."
Singer v. United
States, 380 U. S. 24,
380 U. S. 34-35.
[
Footnote 10] But the issue
here is not whether the defendant can compel a private trial.
[
Footnote 11] Rather, the
issue
Page 443 U. S. 383
is whether members of the public have an enforceable right to a
public trial that can be asserted independently of the parties in
the litigation.
There can be no blinking the fact that there is a strong
societal interest in public trials. Openness in court proceedings
may improve the quality of testimony, induce unknown witnesses to
come forward with relevant testimony, cause all trial participants
to perform their duties more conscientiously, and generally give
the public an opportunity to observe the judicial system.
Estes
v. Texas, 381 U.S. at
381 U. S. 583 (Warren, C.J., concurring). But there is a
strong societal interest in other constitutional guarantees
extended to the accused, as well. The public, for example, has a
definite and concrete interest in seeing that justice is swiftly
and fairly administered.
See Barker v. Wingo, 407 U.
S. 514,
407 U. S. 519.
Similarly, the public has an interest in having a criminal case
heard by a jury, an interest distinct from the defendant's interest
in being tried by a jury of his peers.
Patton v. United
States, 281 U. S. 276,
281 U. S.
312.
Recognition of an independent public interest in the enforcement
of Sixth Amendment guarantees is a far cry, however, from the
creation of a constitutional right on the part of the public. In an
adversary system of criminal justice, the public interest in the
administration of justice is protected by the participants in the
litigation. Thus, because of the great public interest in jury
trials as the preferred mode of factfinding in criminal cases, a
defendant cannot waive a jury trial without the consent of the
prosecutor and judge.
Singer v. United States, supra at
380 U. S. 38;
Patton v. United States, supra at
281 U. S. 312.
But if the defendant waives his right to a jury trial,
Page 443 U. S. 384
and the prosecutor and the judge consent, it could hardly be
seriously argued that a member of the public could demand a jury
trial because of the societal interest in that mode of factfinding.
Cf. Fed.Rule Crim.Proc. 3(a) (trials to be by jury unless
waived by a defendant, but the court must approve and the
prosecution must consent to the waiver). Similarly, while a
defendant cannot convert his right to a speedy trial into a right
to compel an indefinite postponement, a member of the general
public surely has no right to prevent a continuance in order to
vindicate the public interest in the efficient administration of
justice. In short, our adversary system of criminal justice is
premised upon the proposition that the public interest is fully
protected by the participants in the litigation. [
Footnote 12]
V
In arguing that members of the general public have a
constitutional right to attend a criminal trial, despite the
obvious lack of support for such a right in the structure or text
of the Sixth Amendment, the petitioner and
amici rely on
the history of the public trial guarantee. This history, however,
ultimately demonstrates no more than the existence of a common law
rule of open civil and criminal proceedings.
A
Not many common law rules have been elevated to the status of
constitutional rights. The provisions of our Constitution
Page 443 U. S. 385
do reflect an incorporation of certain few common law rules and
a rejection of others. The common law right to a jury trial, for
example, is explicitly embodied in the Sixth and Seventh
Amendments. The common law rule that looked upon jurors as
interested parties who could give evidence against a defendant
[
Footnote 13] was explicitly
rejected by the Sixth Amendment provision that a defendant is
entitled to be tried by an "impartial jury." But the vast majority
of common law rules were neither made part of the Constitution nor
explicitly rejected by it.
Our judicial duty in this case is to determine whether the
common law rule of open proceedings was incorporated, rejected, or
left undisturbed by the Sixth Amendment. In pursuing this inquiry,
it is important to distinguish between what the Constitution
permits and what it requires. It has never been suggested that, by
phrasing the public trial guarantee as a right of the accused, the
Framers intended to reject the common law rule of open proceedings.
There is no question that the Sixth Amendment permits and even
presumes open trials as a norm. But the issue here is whether the
Constitution
requires that a pretrial proceeding such as
this one be opened to the public, even though the participants in
the litigation agree that it should be closed to protect the
defendants' right to a fair trial. [
Footnote 14] The history upon which the petitioner and
amici rely totally fails to demonstrate that the Framers
of the Sixth Amendment intended to create a constitutional right in
strangers to attend a pretrial proceeding,
Page 443 U. S. 386
when all that they actually did was to confer upon the accused
an explicit right to demand a public trial. [
Footnote 15] In conspicuous contrast with some
of the early state constitutions that provided
Page 443 U. S. 387
for a public right to open civil and criminal trials, [
Footnote 16] the Sixth Amendment
confers the right to a public trial only upon a defendant and only
in a criminal case.
B
But even if the Sixth and Fourteenth Amendments could properly
be viewed as embodying the common law right of the public to attend
criminal trials, it would not necessarily follow that the
petitioner would have a right of access under the circumstances of
this case. For there 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.
[
Footnote 17] By the time of
the adoption of the Constitution, public trials were clearly
associated with the protection of the defendant. [
Footnote 18] And pretrial proceedings,
Page 443 U. S. 388
precisely because of the same concern for a fair trial, were
never characterized by the same degree of openness as were actual
trials. [
Footnote 19]
Page 443 U. S. 389
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 has 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 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). [Footnote 20]
Page 443 U. S. 390
Closed pretrial proceedings have been a familiar part of the
judicial landscape in this country as well. The original New York
Field Code of Criminal Procedure published in 1850, for example,
provided that pretrial hearings should be closed to the public
"upon the request of a defendant." [
Footnote 21] The explanatory report made clear that this
provision was designed to protect defendants from prejudicial
pretrial publicity:
"If the examination must necessarily be public, the consequence
may be that the testimony upon the mere preliminary examination
will be spread before the community, and a state of opinion created
which, in cases of great public interest, will render it difficult
to obtain an unprejudiced jury. The interests of justice require
that the case of the defendant should not be prejudged, if it can
be avoided; and no one can justly complain that, until he is put
upon his trial, the dangers of this prejudgment are obviated.
[
Footnote 22]"
Indeed, eight of the States that have retained all or part of
the
Page 443 U. S. 391
Field Code have kept the explicit provision relating to closed
pretrial hearings. [
Footnote
23]
For these reasons, we hold that members of the public have no
constitutional right under the Sixth and Fourteenth Amendments to
attend criminal trials.
VI
The petitioner also argues that members of the press and the
public have a right of access to the pretrial hearing by reason of
the First and Fourteenth Amendments. In
Pell v. Procunier,
417 U. S. 817,
Saxbe v. Washington Post Co., 417 U.
S. 843, and
Houchins v. KQED, Inc.,
438 U. S. 1, this
Court upheld prison regulations that denied to members of the press
access to prisons superior to that afforded to the public
generally. Some Members of the Court, however, took the position in
those cases that the First and Fourteenth Amendments do guarantee
to the public in general, or the press in
Page 443 U. S. 392
particular, a right of access that precludes their complete
exclusion in the absence of a significant governmental interest.
See Saxbe, supra at
417 U. S. 850
(POWELL, J., dissenting);
Houchins, supra at
438 U. S. 19
(STEVENS, J., dissenting).
See also id. at
438 U. S. 16
(STEWART, J, concurring).
The petitioner in this case urges us to narrow our rulings in
Pell, Saxbe, and
Houchins, at least to the extent
of recognizing a First and Fourteenth Amendment right to attend
criminal trials. [
Footnote
24] We need not decide in the abstract, however, whether there
is any such constitutional right. For even assuming,
arguendo, that the First and Fourteenth Amendments may
guarantee such access in some situations, a question we do not
decide, this putative right was given all appropriate deference by
the state
nisi prius court in the present case.
Several factors lead to the conclusion that the actions of the
trial judge here were consistent with any right of access the
petitioner may have had under the First and Fourteenth Amendments.
First, none of the spectators present in the courtroom, including
the reporter employed by the petitioner, objected when the
defendants made the closure motion. Despite this failure to make a
contemporaneous objection, counsel for the petitioner was given an
opportunity to be heard at a proceeding where he was allowed to
voice the petitioner's objections to closure of the pretrial
hearing. At this proceeding, which took place after the filing of
briefs, the trial court balanced the "constitutional rights of the
press and the public" against the "defendants' right to a fair
trial." The trial judge concluded, after making this appraisal,
that the press and the public could be excluded from the
suppression hearing, and could be denied immediate access to a
transcript,
Page 443 U. S. 393
because an open proceeding would pose a "reasonable probability
of prejudice to these defendants." Thus, the trial court found that
the representatives of the press did have a right of access of
constitutional dimension, but held, under the circumstances of this
case, that this right was outweighed by the defendants' right to a
fair trial. In short, the closure decision was based
"on an assessment of the competing societal interests involved .
. . , rather than on any determination that First Amendment
freedoms were not implicated."
Saxbe, supra at
417 U. S. 860
(POWELL, J., dissenting).
Furthermore, any denial of access in this case was not absolute,
but only temporary. Once the danger of prejudice had dissipated, a
transcript of the suppression hearing was made available. The press
and the public then had a full opportunity to scrutinize the
suppression hearing. Unlike the case of an absolute ban on access,
therefore, the press here had the opportunity to inform the public
of the details of the pretrial hearing accurately and completely.
Under these circumstances, any First and Fourteenth Amendment right
of the petitioner to attend a criminal trial was not violated.
[
Footnote 25]
VII
We certainly do not disparage the general desirability of open
judicial proceedings. But we are not asked here to declare
Page 443 U. S. 394
whether open proceedings represent beneficial social policy, or
whether there would be a constitutional barrier to a state law that
imposed a stricter standard of closure than the one here employed
by the New York courts. Rather, we are asked to hold that the
Constitution itself gave the petitioner an affirmative right of
access to this pretrial proceeding, even though all the
participants in the litigation agreed that it should be closed to
protect the fair trial rights of the defendants.
For all of the reasons discussed in this opinion, we hold that
the Constitution provides no such right. Accordingly, the judgment
of the New York Court of Appeals is affirmed.
Is is so ordered.
[
Footnote 1]
The Democrat & Chronicle and the Times-Union are published
in Rochester, N.Y. Rochester, in Monroe County, is approximately 40
miles from the Seneca County line. The circulation of the
newspapers is primarily in Monroe County. There are some
subscribers, however, in Seneca County. In 1976, when this case
arose, the Democrat & Chronicle had a Seneca County daily
circulation of 1,022, giving it a 9.6% share of the market in that
county, and a Sunday circulation of 1,532, for a 14.3% share of the
market. The Times-Union published only a daily edition, and had but
one subscriber in Seneca County. American Newspaper Markets, Inc.,
Circulation '77/'78, pp. 522, 541. The Bureau of the Census
estimated Seneca County's 1976 population at 34,000. U.S.
Department of Commerce, Bureau of the Census, Current Population
Reports, Series P-26, No. 76-32, Population Estimates 3
(Aug.1977).
The petitioner in 1976 also owned a Rochester, N.Y., television
station. And there were other newspapers in Seneca County at that
time.
See Circulation '77/'78,
supra at 522. The
record in this case, however, contains no evidence concerning
newspaper coverage of Clapp's disappearance and the subsequent
prosecution of respondents Greathouse and Jones other than that
which appeared in the Democrat & Chronicle and the
Times-Union.
[
Footnote 2]
Under N.Y.Crim.Proc.Law §§ 710.40 and 255.20 (McKinney Supp.
1978), a defendant was required to file in advance of trial any
motion to suppress evidence. The statutes permitted a defendant to
make such a motion for the first time during trial only when he did
not have a reasonable opportunity to do so prior to trial, or when
the State failed to provide notice before trial that it would seek
to introduce a confession of the defendant. §§ 710.30 and
710.40.2.
[
Footnote 3]
The hearing on the motion of defendants Greathouse and Jones to
suppress their confessions as involuntary was held before trial in
accordance with the decision in
People v. Huntley, 15
N.Y.2d 72, 204 N.E.2d 179 (1965). In
Huntley, the New York
Court of Appeals ruled that the separate inquiry into the
voluntariness of a confession, required by this Court's decision in
Jackson v. Denno, 378 U. S. 368
(1964), was to be made in a preliminary hearing. 15 N.Y.2d at 78,
204 N.E.2d at 183.
[
Footnote 4]
Shortly before the entry of judgment by the Appellate Division,
both defendants had pleaded guilty to lesser included offenses in
satisfaction of the charges against them. Immediately thereafter, a
transcript of the suppression hearing was made available to the
petitioner.
[
Footnote 5]
In addition to excluding inadmissible evidence, a trial judge
may order sequestration of the jury or take any of a variety of
protective measures.
See Nebraska Press Assn. v. Stuart,
427 U. S. 539,
427 U. S.
562-565;
Sheppard v. Maxwell, 384 U.
S. 333,
384 U. S. 358
362.
[
Footnote 6]
All of this does not mean, of course, that failure to close a
pretrial hearing, or take other protective measures to minimize the
impact of prejudicial publicity, will warrant the extreme remedy of
reversal of a conviction. But it is precisely because reversal is
such an extreme remedy, and is employed in only the rarest cases,
that our criminal justice system permits, and even encourages,
trial judges to be overcautious in ensuring that a defendant will
receive a fair trial.
[
Footnote 7]
The Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of counsel for his defence."
[
Footnote 8]
The Court also recognized that while the right to a public trial
is guaranteed to an accused, publicity also provides various
benefits to the public. 333 U.S. at
333 U. S. 270
n. 24.
[
Footnote 9]
Numerous commentators have also recognized that only a defendant
has a right to a public trial under the Sixth Amendment.
E.g., Radin, The Right to a Public Trial, 6 Temple L.Q
381, 392 (1932) (a public right to a public trial "cannot be
derived from the Constitution because the Constitution certainly
does not mention a public trial as the privilege of the public, but
expressly as that of the accused"); Boldt, Should Canon 35 Be
Amended?, 41 A.B.A.J. 55, 56 (1955) ("[T]he guarantee of public
trial is for the benefit of persons charged with crime. . . . It is
significant that the Constitution does
not say that the
public has the right to
enjoy' or even attend trials. There is
nothing in the constitutional language indicating that any
individual other than the accused in a criminal trial . . . [has]
either a right to attend the trial or to publicity emanating from
the trial"); Note, The Right to Attend Criminal Hearings, 78
Colum.L.Rev. 1308, 1321 (1978) (since the Sixth Amendment confers a
right to a public trial to the accused, "to elaborate a parallel
and possibly adverse public right of access from the public trial
guarantee clause strains even flexible constitutional language
beyond its proper bounds"); Note, The Right to a Public Trial in
Criminal Cases, 41 N.Y.U.L.Rev. 1138, 1156 (1966) ("Despite the
importance of the public's interest, however, it does not
appear that a public right is `so rooted in the traditions
and conscience of our people as to be ranked as fundamental,' . . .
particularly in view of the uncertain status of this right in the
majority of the state courts").
See also Powell, The Right to a Fair Trial, 51 A.B.A.J.
534, 538 (1965) ("We must bear in mind that the primary purpose of
a public trial and of the media's right as a part of the public to
attend and report what occurs there is to protect the accused"); 1
T. Cooley, Constitutional Limitations 647 (8th ed.1927) ("The
requirement of a public trial is for the benefit of the accused . .
.").
It appears that, before today, only one court, state or federal,
has ever held that the Sixth and Fourteenth Amendments confer upon
members of the public a right of access to a criminal trial.
United States v. Cianfrani, 573 F.2d 835 (CA3 1978). The
Cianfrani case has been criticized for its departure from
the plain meaning of the Sixth Amendment.
See Note, 78
Colum.L.Rev. at 1321-1322.
[
Footnote 10]
In
Faretta v. California, 422 U.
S. 806, by contrast, the Court held that the Sixth and
Fourteenth Amendments guarantee that an accused has a right to
proceed without counsel in a criminal case when he voluntarily and
intelligently elects to do so. In reaching this result, the Court
relied on the Language and structure of the Sixth Amendment which
grants to the accused the right to make a defense. As part of this
right to make a defense, the Amendment speaks of the "assistance"
of counsel, thus contemplating a norm in which the accused, and not
a lawyer, is master of his own defense.
Id. at
422 U. S.
819-820.
[
Footnote 11]
The question in this case is not, as the dissenting opinion
repeatedly suggests,
post at
443 U. S. 411,
415,
443 U. S. 418,
443 U. S. 425,
443 U. S. 426,
whether the Sixth and Fourteenth Amendments give a defendant the
right to compel a secret trial. In this case, the defendants, the
prosecutor, and the judge all agreed that closure of the pretrial
suppression hearing was necessary to protect the defendants' right
to a fair trial. Moreover, a transcript of the proceedings was made
available to the public. Thus, there is no need to decide the
question framed by the dissenting opinion. If that question were
presented, it is clear that the defendant would have no such right.
See Singer v. United States, 380 U. S.
24,
380 U. S. 35
("[A]lthough a defendant can, under some circumstances, waive his
constitutional right to a public trial, he has no absolute right to
compel a private trial").
[
Footnote 12]
The Court has recognized that a prosecutor
"is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all;
and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such,
he is, in a peculiar and very definite sense, the servant of the
law. . .."
Berger v. United States, 295 U. S.
78,
295 U. S. 88.
The responsibility of the prosecutor as a representative of the
public surely encompasses a duty to protect the societal interest
in an open trial. But this responsibility also requires him to be
sensitive to the due process rights of a defendant to a fair trial.
A fortiori, the trial judge has the same dual
obligation.
[
Footnote 13]
Blackstone, for example, stated that it "universally obtains"
that, if a juror knows of a matter in issue, he may "give his
evidence publicly in court." 3 W. Blackstone, Commentaries
*375.
[
Footnote 14]
Thus, it is not enough to say, in the words of the dissenting
opinion, that there is no "evidence that casting the public trial
concept in terms of a right of the accused signaled a departure
from the common law practice,"
post at
443 U. S. 425,
and that
"there is no indication that the First Congress, in proposing
what became the Sixth Amendment, meant to depart from the common
law practice. . .."
Post at
443 U. S.
46.
[
Footnote 15]
An additional problem with the historical analysis of the
petitioner and
amici is that it is equally applicable to
civil and criminal cases, and therefore proves too much. For many
centuries, both civil and criminal trials have traditionally been
open to the public. As early as 1685, Sir John Hawles commented
that open proceedings were necessary so "that truth may be
discovered in civil
as well as criminal matters" (emphasis
added). Remarks upon Mr. Cornish's Trial, 11 How.St.Tr. 455, 460.
English commentators also assumed that the common law rule was that
the public could attend civil and criminal trials without
distinguishing between the two.
E.g., 2 E. Coke,
Institutes of the Laws of England 103 (6th ed. 1681) ("all Causes
ought to be heard . . . openly in the Kings Courts"); 3 W.
Blackstone, Commentaries *372; M. Hale, The History of the Common
Law of England 343, 345 (6th ed. 1820); E. Jenks, The Book of
English Law 73-74 (6th ed.1967).
The experience in the American Colonies was analogous. From the
beginning, the norm was open trials. Indeed, the 1677 New Jersey
Constitution provided that any person could attend a trial whether
it was "civil
or criminal," Concessions and Agreements of
West New Jersey (1677), ch. XXIII, quoted in 1 B. Schwartz, The
Bill of Rights: A Documentary History 129 (1971) (emphasis added).
Similarly, the 1682 and 1776 Pennsylvania Constitutions both
provided that "
all courts shall be open," 1 Schwartz,
supra at 140, 271 (emphasis added).
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. But the Sixth Amendment does not speak in terms of civil
cases at all; by its terms, it is limited to providing rights to an
accused in criminal cases. In short, there is no principled basis
upon which a public right of access to judicial 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. While the operation
of the judicial process in civil cases is often of interest only to
the parties in the litigation, this is not always the case.
E.g., 60 U. S.
Sandford, 19 How. 393;
Plessy v. Ferguson,
163 U. S. 537;
Brown v. Board of Education, 347 U.
S. 483;
University of California Regents v.
Bakke, 438 U. S. 265.
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.
[
Footnote 16]
See n 15,
supra.
[
Footnote 17]
Although pretrial suppression hearings were unknown at common
law, other preliminary hearings were formalized by statute as early
as 1554 and 1555. 1 & 2 Phil. & M., ch. 13 (1554); 2 &
3 Phil. & M., ch. 10 (1555).
[
Footnote 18]
After the abolition of the Star Chamber in 1641, defendants in
criminal cases began to acquire many of the rights that are
presently embodied in the Sixth Amendment. Thus, the accused now
had the right to confront witnesses, call witnesses in his own
behalf, and generally the right to a fair trial as we now know it.
It was during this period that the public trial first became
identified as a right of the accused. As one commentator has
stated:
"The public trial, although it had always been the custom,
acquired new significance. It gave the individual protection
against being denied any of his other fundamental rights. A public
trial would make it difficult for a judge to abuse a jury or the
accused. Any such abuses would cause much public indignation. Thus,
it must have seemed implicit that the public trial was as much an
essential element of a fair trial as any of the newer
conventions."
Note, Legal History: Origins of the Public Trial, 35 Ind.L.J.
251, 255 (1960).
It was during this period that we first find defendants
demanding a public trial.
See The Trial of John Lilburne,
4 How.St. Tr. 1270, 1273 (1649), in which Lilburne, on trial for
treason, referred to a public trial as "the first fundamental
liberty of an Englishman." Indeed, the fact that the Framers
guaranteed to an accused the right to a public trial in the same
Amendment that contains the other fair trial rights of an accused
also suggests that open trials were by then clearly associated with
the rights of a defendant.
[
Footnote 19]
Even with respect to trials themselves, the tradition of
publicity has not been universal. Exclusion of some members of the
general public has been upheld, for example, in cases involving
violent crimes against minors.
Geise v. United States, 262
F.2d 151 (CA9 1958). The public has also been temporarily excluded
from trials during testimony of certain witnesses.
E.g.,
Beauchamp v. Cahill, 297 Ky. 505, 180 S.W.2d 423 (1944)
(exclusion justified when children forced to testify to revolting
facts);
State v. Callahan, 100 Minn. 63, 110 N.W. 342
(1907) (exclusion justified when embarrassment could prevent
effective testimony);
Hogan v. State, 191 Ark. 437, 86
S.W.2d 931 (1935) (trial judge properly closed trial to spectators
during testimony of 10-year-old rape victim);
United States ex
rel. Smallwood v. LaValle, 377 F.
Supp. 1148 (EDNY),
aff'd, 508 F.2d 837 (1974).
Exclusion has also been permitted when the evidence in a case was
expected to be obscene.
State v. Croak, 167 La. 92, 118
So. 703 (1928). Finally, trial judges have been given broad
discretion to exclude spectators to protect order in their
courtrooms.
United States e rel. Orlando v. Fay, 350 F.2d
967 (CA2 1965) (exclusion of general public justified after an
outburst in court by defendant and his mother).
Approximately half the States also have statutory provisions
containing limitations upon public trials.
E.g., Ala.Code
§ 12-21-202 (1975) (public can be excluded in rape cases); Ga.Code
§ 81-1006 (1978) (public can be excluded where evidence is vulgar);
Mass.Gen.Laws Ann., ch. 278, § 16A (West 1972) (general public can
be excluded from all trials of designated crimes); Minn.Stat. §
631.04 (1978) (no person under 17 who is not a party shall be
present in a criminal trial); Va.Code § 19.2266 (1975) ("In the
trial of all criminal cases . . . the court may, in its discretion,
exclude . . . any persons whose presence would impair the conduct
of a fair trial . . .").
The petitioner and
amici appear to argue that, since
exclusion of members of the public is relatively rare, there must
be a constitutional public right to a public trial. This argument,
however, confuses the existence of a constitutional right with the
common law tradition of open civil and criminal proceedings.
See n 15,
supra. This common law tradition, coupled with the
explicit right of the accused to a public trial in criminal cases,
fully explains the general prevalence of open trials.
[
Footnote 20]
Similarly, the press had no privilege for the reporting of
pretrial judicial proceedings under English common law. Thus, in
the well known case of
King v. Fisher, 2 Camp. 563, 170
Eng.Rep. 1253 (N. P. 1811), the court forbade the dissemination of
information about a pretrial hearing to protect the right of the
accused to receive a fair trial. In distinguishing between the
privilege accorded the reporting of trials and the absence of such
a privilege of reporting pretrial proceedings, Lord Ellenborough
declared:
"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."
Id. at 570-571, 170 Eng.Rep. at 1255.
See also King
v. Parke, [1903] 2 K.B. 432, 438.
Restrictions of public access and reporting of pretrial
proceedings did not involve suppression hearings, because such
hearings did not exist in early common law. But the rationale for
the lack of a public right of access to pretrial judicial
proceedings -- protection of the right of the accused to a fair
trial -- is equally applicable to pretrial suppression hearings.
Indeed, the entire purpose of a pretrial suppression hearing is to
ensure that the accused will not be unfairly convicted by
contaminated evidence.
[
Footnote 21]
Commissioners on Practice and Pleadings, Code of Criminal
Procedure, § 202 (Final Report 1850).
[
Footnote 22]
Id. at 94. To protect a defendant's right to a public
trial, however, closure could be ordered only at the request of the
defendant:
"To guard the rights of the defendant against a secret
examination, the section provides that it shall not be conducted in
private, unless at his request."
Id. at 95.
[
Footnote 23]
Ariz.Rule Crim. Proc. 9.3; Cal.Penal Code Ann. § 868 (West
1970); Idaho Code § 19-811 (1979); Iowa Code § 761.13 (1973);
Mont.Code Ann. § 46-10-201 (1978); Nev.Rev.Stat. § 171.204 (1975);
N.D.Cent.Code § 29-07-14 (1974); Utah Code Ann. § 77-15-13 (1978).
Other States have similar provisions.
E.g., Pa.Rule
Crim.Proc. 323(f) (providing that suppression hearings shall be
open "unless defendant moves that it be held in the presence of
only the defendant, counsel for the parties, court officers and
necessary witnesses"). Still other States allow closure of pretrial
hearings without statutory authorization.
Nebraska Press Assn.
v. Stuart, 427 U.S. at
427 U. S.
568.
Until a year ago, the American Bar Association also endorsed the
view that presiding officers should close pretrial hearings at the
request of a defendant unless there was no "substantial likelihood"
that the defendant would be prejudiced by an open proceeding. ABA
Project on Standards for Criminal Justice, Fair Trial and Free
Press § 3.1 (App. Draft 1968). The ABA, following the "approach
taken by the Supreme Court in
Nebraska Press Association v.
Stuart," has now changed this standard. ABA Project on
Standards for Criminal Justice, Fair Trial and Free Press, Standard
3.2, p. 16 (App.Draft 1978). The Nebraska Press case, however, is
irrelevant to the question presented here.
See n 25,
infra.
[
Footnote 24]
The petitioner argues that trials have traditionally been open
to the public, in contrast to prisons from which the public has
been traditionally excluded. We need not decide in this case
whether this factual difference is of any constitutional
significance.
[
Footnote 25]
This Court's decision in
Nebraska Press Assn. v. Stuart,
supra, is of no assistance to the petitioner in this case. The
Nebraska Press case involved a direct prior restraint
imposed by a trial judge on the members of the press, prohibiting
them from disseminating information about a criminal trial.
Since
"it has been generally, if not universally, considered that it
is the chief purpose of the [First Amendment's] guaranty to prevent
previous restraints upon publication,"
Near v. Minnesota ex rel. Olson, 283 U.
S. 697,
283 U. S. 713,
the Court held that the order violated the constitutional guarantee
of a free press.
See also Oklahoma Publishing Co. v. District
Court, 430 U. S. 308. The
exclusion order in the present case, by contrast, did not prevent
the petitioner from publishing any information in its possession.
The proper inquiry, therefore, is whether the petitioner was denied
any constitutional right of access.
MR. CHIEF JUSTICE BURGER, concurring.
I join the opinion of the Court, but I write separately to
emphasize my view of the nature of the proceeding involved in
today's decision. By definition, a hearing on a motion before trial
to suppress evidence is not a trial; it is a pretrial hearing.
The Sixth Amendment tells us that, "[i]n all criminal
prosecutions, the
accused shall enjoy the right to a . . .
public trial." (Emphasis supplied.) It is the practice in Western
societies, and has been part of the common law tradition for
centuries, that trials generally be public. This is an important
prophylaxis of the system of justice that constitutes the adhesive
element of our society. The public has an interest in observing the
performance not only of the litigants and the witnesses, but also
of the advocates and the presiding judge. Similarly, if the accused
testifies, there is a proper public interest in that testimony. But
interest alone does not create a constitutional right.
At common law, there was a very different presumption for
proceedings which preceded the trial. There was awareness of the
untoward effects that could result from the publication
Page 443 U. S. 395
of information before an indictment was returned or before a
person was bound over for trial. For an example we need only
consider the case of
Dabbney v. Cooper, 5 M. & R. 314
(K.B. 1829), which involved a suit for trespass against a judge for
forcing a person out of a courtroom. The argument concentrated on
whether a defendant was entitled to be represented by counsel. But
the following exchange on appeal illustrates the distinction drawn
between trials and pretrial proceedings:
"(Counsel) '. . . The decision in
Cox v. Coleridge
proceeded on the ground that what had taken place before the
magistrates was merely a preliminary inquiry. The decision
proceeded entirely upon that ground. The Court pointed out the
inconvenience which would result from giving
publicity to
such previous inquiry.'"
"Bayley, J. (interrupting) ' . . . I believe that in that case a
distinction was taken between a
preliminary inquiry and an
inquiry upon which there may be a
conviction.'"
"(Counsel continued) ". . . Lord Tenterden there says,
This
being only a preliminary inquiry and not a trial, makes,
in my mind, all the difference.'""
(Emphasis in original.)
"Parke, J. (interrupting) '. . . The decision in
Cox v.
Coleridge turned upon its being a case of preliminary
inquiry.'"
Id. at 316, 318. In sum, at common law, the courts
recognized that the timing of a proceeding was likely to be
critical.
When the Sixth Amendment was written, and for more than
Page 443 U. S. 396
a century after that, no one could have conceived that the
exclusionary rule and pretrial motions to suppress evidence would
be part of our criminal jurisprudence. The authors of the
Constitution, imaginative, far-sighted, and perceptive as they
were, could not conceivably have anticipated the paradox inherent
in a judge-made rule of evidence that excludes undoubted truth from
the truthfinding processes of the adversary system. Nevertheless,
as of now, we are confronted not with a legal theory but with the
reality of the unique strictures of the exclusionary rule, and they
must be taken into account in this setting. To make public the
evidence developed in a motion to suppress evidence,
cf. Brewer
v. Williams, 430 U. S. 387
(1977), would, so long as the exclusionary rule is not modified,
introduce a new dimension to the problem of conducting fair
trials.
Even though the draftsmen of the Constitution could not
anticipate the 20th-century pretrial proceedings to suppress
evidence, pretrial proceedings were not wholly unknown in that day.
Written interrogatories were used pretrial in 18th-century
litigation, especially in admiralty cases. Thus, it is safe to
assume that those lawyers who drafted the Sixth Amendment were not
unaware that some testimony was likely to be recorded before trials
took place. Yet no one ever suggested that there was any "right" of
the public to be present at such pretrial proceedings as were
available in that time; until the trial, it could not be known
whether and to what extent the pretrial evidence would be offered
or received.
Similarly, during the last 40 years in which the pretrial
processes have been enormously expanded, it has never occurred to
anyone, so far as I am aware, that a pretrial deposition or
pretrial interrogatories were other than wholly private to the
litigants. A pretrial deposition does not become part of a "trial"
until and unless the contents of the deposition are offered in
evidence. Pretrial depositions are not uncommon to take the
testimony of a witness, either for the defense or
Page 443 U. S. 397
for the prosecution. In the entire pretrial period, there is no
certainty that a trial will take place. Something in the
neighborhood of 85 percent of all criminal charges are resolved by
guilty pleas, frequently after pretrial depositions have been taken
or motions to suppress evidence have been ruled upon.
For me, the essence of all of this is that, by definition,
"pretrial proceedings" are exactly that.
* The full quotation was:
"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."
Cox v. Coleridge, 1 B. & C. 37, 49-50, 107 Eng.Rep.
15, 19-20 (1822).
MR. JUSTICE POWELL, concurring.
Although I join the opinion of the Court, I would address the
question that it reserves. Because of the importance of the
public's having accurate information concerning the operation of
its criminal justice system, I would hold explicitly that
petitioner's reporter had an interest protected by the First and
Fourteenth Amendments in being present at the pretrial suppression
hearing. [
Footnote 2/1] As I have
argued in
Saxbe v. Washington Post Co., 417 U.
S. 843,
417 U. S. 850
(1974) (POWELL, J., dissenting), this constitutional protection
derives not from any special status of members of the press as
such, but rather
Page 443 U. S. 398
because, "[i]n seeking out the news, the press . . . acts as an
agent of the public at large," each individual member of which
cannot obtain for himself "the information needed for the
intelligent discharge of his political responsibilities."
Id. at
417 U. S. 863.
Cf. First National Bank of Boston v. Bellotti,
435 U. S. 765,
435 U. S.
776-778 (1978).
The right of access to courtroom proceedings, of course, is not
absolute. It is limited both by the constitutional right of
defendants to a fair trial,
see, e.g., Estes v. Texas,
381 U. S. 532
(1965), and by the needs of government to obtain just convictions
and to preserve the confidentiality of sensitive information and
the identity of informants.
Cf. Procunier v. Martinez,
416 U. S. 396,
416 U. S.
412-413 (1974);
Houchins v. KQED, Inc.,
438 U. S. 1,
438 U. S. 34-35
(1978) (STEVENS, J., dissenting);
Saxbe v. Washington Post Co.,
supra at
417 U. S.
872-873 (dissenting opinion). The task of determining
the application of these limitations in each individual trial
necessarily falls almost exclusively upon the trial court asked to
exclude members of the press and public from the courtroom. For it
would be entirely impractical to require criminal proceedings to
cease while appellate courts were afforded an opportunity to review
a trial court's decision to close proceedings. It is all the more
important, therefore, that this Court identify for the guidance of
trial courts the constitutional standard by which they are to judge
whether closure is justified, and the minimal procedure by which
this standard is to be applied. [
Footnote 2/2]
In cases such as this, where competing constitutional rights
must be weighed in the context of a criminal trial,
Page 443 U. S. 399
the often difficult question is whether unrestrained exercise of
First Amendment rights poses a serious danger to the fairness of a
defendant's trial.
"As we stressed in
Estes, the presence of the press at
judicial proceedings must be limited when it is apparent that the
accused might otherwise be prejudiced or disadvantaged."
Sheppard v. Maxwell, 384 U. S. 333,
384 U. S. 358
(1966) (footnote omitted);
see Estes v. Texas, supra, at
381 U. S. 539.
In striking this balance, there are a number of considerations to
be weighed. In
Nebraska Press Assn. v. Stuart,
427 U. S. 539
(1976), we concluded that there is a strong presumption against
prohibiting members of the press from publishing information
already in their possession concerning courtroom proceedings.
Excluding all members of the press from the courtroom, however,
differs substantially from the "gag order" at issue in
Nebraska
Press, as the latter involved a classic prior restraint, "one
of the most extraordinary remedies known to our jurisprudence,"
id. at
427 U. S. 562,
and applied to information irrespective of its source. In the
present case, on the other hand, we are confronted with a trial
court's order that, in effect, denies access only to one, albeit
important, source. It does not in any way tell the press what it
may and may not publish.
Despite these differences between
Nebraska Press and
the present case, petitioner asks the Court to impose a severe
burden upon defendants seeking closure. The approach taken in MR.
JUSTICE BLACKMUN's opinion would grant this request, limiting
closure to those cases where "it is strictly and inescapably
necessary in order to protect the fair trial guarantee."
See
post at
443 U. S. 440.
It is difficult to imagine a case where closure could be ordered
appropriately under this standard. A rule of such apparent
inflexibility could prejudice defendants' rights and disserve
society's interest in the fair and prompt disposition of criminal
trials. As a result of pretrial publicity, defendants could be
convicted after less than the meticulously fair trial that the
Constitution demands. There
Page 443 U. S. 400
also could be an increase in reversal of convictions on appeal.
In either event, it seems to me that the approach suggested by
petitioner would not adequately safeguard the defendant's right to
a fair trial, a right of equal constitutional significance to the
right of access. The better course would be a more flexible
accommodation between First and Sixth Amendment rights which are
protected from state law interference by the Fourteenth Amendment
-- an accommodation under which neither defendants' rights nor the
rights of members of the press and public should be made
subordinate.
Cf. Branzburg v. Hayes, 408 U.
S. 665,
408 U. S.
709-710 (1972) (POWELL, J., concurring). The question
for the trial court, therefore, in considering a motion to close a
pretrial suppression hearing, is whether a fair trial for the
defendant is likely to be jeopardized by publicity if members of
the press and public are present and free to report prejudicial
evidence that will not be presented to the jury.
Although the strict standard of
Nebraska Press is not
applicable to decisions concerning closure of courtroom
proceedings, much of the discussion in that case of the factors to
be considered in making decisions with respect to "gag orders" is
relevant to closure decisions. Thus, where a defendant requests the
trial court to exclude the public, it should consider whether there
are alternative means reasonably available by which the fairness of
the trial might be preserved without interfering substantially with
the public's interest in prompt access to information concerning
the administration of justice. Similarly, because exclusion is
justified only as a protection of the defendant's right to a fair
trial and the State's interest in confidentiality, members of the
press and public objecting to the exclusion have the right to
demand that it extend no farther than is likely to achieve these
goals. Thus, for example, the trial court should not withhold the
transcript of closed courtroom proceedings past the time when no
prejudice is likely to result to the defendant or the State from
its release.
It is not enough, however, that trial courts apply a certain
Page 443 U. S. 401
standard to requests for closure. If the constitutional right of
the press and public to access is to have substance,
representatives of these groups must be given an opportunity to be
heard on the question of their exclusion. But this opportunity
extends no farther than the persons actually present at the time
the motion for closure is made, for the alternative would require
substantial delays in trial and pretrial proceedings while notice
was given to the public. Upon timely objection to the granting of
the motion, it is incumbent upon the trial court to afford those
present a reasonable opportunity to be heard on the question
whether the defendant is likely to be deprived of a fair trial if
the press and public are permitted to remain in attendance. At this
hearing, it is the defendant's responsibility as the moving party
to make some showing that the fairness of his trial likely will be
prejudiced by public access to the proceedings. Similarly, if the
State joins in the closure request, it should be given the
opportunity to show that public access would interfere with its
interests in fair proceedings or preserving the confidentiality of
sensitive information. On the other hand, members of the press and
public who object to closure have the responsibility of showing to
the court's satisfaction that alternative procedures are available
that would eliminate the dangers shown by the defendant and the
State.
The question, then, is whether the First Amendment right of
access outlined above was adequately respected in the present case.
As the Court notes, the reporter ordered from the courtroom upon
the motion of the defendants did not object to the closure order
until the suppression hearing was all but completed. Petitioner's
right to be heard on the question of closure, therefore, was not
invoked until the closure was an accomplished and irrevocable fact.
[
Footnote 2/3] Upon
Page 443 U. S. 402
petitioner's request, counsel for the newspaper was allowed
within a reasonable time after the request to present written and
oral arguments to the court challenging its closure order.
At this oral argument, the trial court applied a standard
similar to that set forth above. It first reviewed for petitioner's
counsel the factual basis for its finding that closure had been
necessary to preserve the fairness of the defendants' trial. In the
court's view, the nature of the evidence to be considered at the
hearing, the young age of two of the defendants, and the extent of
the publicity already given the case had indicated that an open
hearing would substantially jeopardize the fairness of the
defendants' subsequent trial. Moreover, the court emphasized the
fact that the prosecutor, as well as each of the defense lawyers,
had endorsed the closure motion. On the other hand, the court found
that petitioner had not presented any basis for changing the
court's views on the need for closure. Throughout oral argument,
the court recognized the constitutional right of the press and
public to be present at criminal proceedings. It concluded,
however, that, in the "unique situation" presented to it, closure
had been appropriate, and that the seal it had placed upon the
transcript of the suppression hearing should continue in effect.
[
Footnote 2/4]
Page 443 U. S. 403
In my view, the procedure followed by the trial court fully
comported with that required by the Constitution. Moreover, the
substantive standard applied was essentially correct, and, giving
due deference to the proximity of the trial judge to the
surrounding circumstances, I cannot conclude that it was error in
this case to exclude petitioner's reporter. I therefore agree that
the judgment of the New York Court of Appeals must be affirmed.
[
Footnote 2/1]
In the present case, members of the press and public were
excluded from a pretrial suppression hearing, rather than from the
trial itself. In our criminal justice system as it has developed,
suppression hearings often are as important as the trial which may
follow. The government's case may turn upon the confession or other
evidence that the defendant seeks to suppress, and the trial
court's ruling on such evidence may determine the outcome of the
case. Indeed, in this case, there was no trial, as, following the
suppression hearing, plea bargaining occurred that resulted in
guilty pleas. In view of the special significance of a suppression
hearing, the public's interest in this proceeding often is
comparable to its interest in the trial itself. It is to be
emphasized, however, that not all of the incidents of pretrial and
trial are comparable in terms of public interest and importance to
a formal hearing in which the question is whether critical, if not
conclusive, evidence is to be admitted or excluded. In the criminal
process, there may be numerous arguments, consultations, and
decisions, as well as depositions and interrogatories, that are not
central to the process and that implicate no First Amendment
rights. And, of course, grand jury proceedings traditionally have
been held in strict confidence.
See Houchins v. KQED,
Inc., 438 U. S. 1,
438 U. S. 34-35
(1978) (STEVENS, J., dissenting).
[
Footnote 2/2]
Contrary to MR. JUSTICE REHNQUIST's suggestion,
post at
443 U. S. 405,
lower courts cannot assume after today's decision that they are
"free to determine for themselves the question whether to open or
close the proceeding" free from all constitutional constraint. For,
although I disagree with my four dissenting Brethren concerning the
origin and the scope of the constitutional limitations on the
closing of pretrial proceedings, I agree with their conclusion that
there are limitations, and that they require the careful attention
of trial courts before closure can be ordered.
[
Footnote 2/3]
Indeed, during subsequent oral argument, the trial court told
counsel for petitioner:
"It is very unfortunate that you were not here when the
[closure] motion was made, but the motion was made and it was made
with the moving force behind the motion being the rights of the
defendants to a fair trial."
App. 13.
"The Gannett newspapers knew that the matter was scheduled for a
hearing, they did have an opportunity to have counsel present on
that particular morning that the [closure] motion was made, and
unfortunately there was no representative of the Gannett
newspapers."
Id. at 17.
[
Footnote 2/4]
It does not appear from the record that the trial court gave any
explicit consideration to the alternatives to closure and the
sealing of the transcript. Although generally such consideration is
necessary in order to determine whether the Constitution permits
closure,
see supra at
443 U. S. 400,
in the circumstances of the present case, I cannot find error in
the trial court's method of proceeding. Petitioner's counsel, when
he appeared after the closure order had been effectuated, suggested
only obliquely that the court should consider alternatives such as
a change of venue. At oral argument before the court, the lawyer
insisted that
"there must be a factual showing that there are no alternative
means of remedying that problem [of prejudicial publicity], and the
only thing that has been mentioned today . . . is that there is a
reasonable probability that the defendants' case would be
prejudiced."
Insofar as this remark suggested that the burden was on the
defendants to prove that there were no alternatives to closure, the
court properly rejected the suggestion.
See discussion,
supra at
443 U. S. 401.
And it appears that petitioner's counsel, for his part, made no
effort to show that any alternative method of proceeding would be
satisfactory. In light of the unsettled state of the law
confronting the trial court, and the uncertain nature of the claims
petitioner was making, I conclude that there was no material
deviation from the guidelines set forth above.
MR. JUSTICE REHNQUIST, concurring.
While I concur in the opinion of the Court, I write separately
to emphasize what should be apparent from the Court's Sixth
Amendment holding and to address the First Amendment issue that the
Court appears to reserve.
The Court today holds, without qualification, that "members of
the public have no constitutional right under the Sixth and
Fourteenth Amendments to attend criminal trials."
Ante at
443 U. S. 391.
In this case, the trial judge closed the suppression hearing
because he concluded that an open hearing might have posed a danger
to the defendants' ability to receive a fair trial.
Ante
at
443 U. S. 376.
But the Court's recitation of this fact and its discussion of the
need to preserve the defendant's right to a fair trial,
ante at
443 U. S.
378-379, should not be interpreted to mean that, under
the Sixth Amendment, a trial court can close
Page 443 U. S. 404
a pretrial hearing or trial only when there is a danger that
prejudicial publicity will harm the defendant. [
Footnote 3/1] To the contrary, since the Court
holds that the public does not have
any Sixth Amendment
right of access to such proceedings, it necessarily follows that,
if the parties agree on a closed proceeding, the trial court is not
required by the Sixth Amendment to advance any reason whatsoever
for declining to open a pretrial hearing or trial to the public.
"There is no question that the Sixth Amendment permits and even
presumes open trials as a norm."
Ante at
443 U. S. 385.
But, as the Court today holds, the Sixth Amendment does not require
a criminal trial or hearing to be opened to the public if the
participants to the litigation agree for any reason, no matter how
jurisprudentially appealing or unappealing, that it should be
closed.
The Court states that it may assume "
arguendo" that the
First and Fourteenth Amendments guarantee the public a right of
access to pretrial hearings in some situations, because it
concludes that, in this case, this "putative right was given all
appropriate deference."
Ante at
443 U. S. 392.
Despite the Court's seeming reservation of the question whether the
First Amendment guarantees the public a right of access to pretrial
proceedings, it is clear that this Court repeatedly has held that
there is no First Amendment right of access in the public or the
press to judicial or other governmental proceedings.
See
post at
443 U. S. 411;
Nixon v. Warner Communications, Inc., 435 U.
S. 589,
435 U. S. 609
(1978);
Saxbe v. Washington Post Co., 417 U.
S. 843,
417 U. S. 850
(1974);
Pell v. Procunier, 417 U.
S. 817,
417 U. S. 834
(1974);
Branzburg v. Hayes, 408 U.
S. 665,
408 U. S.
684-685 (1972);
Zemel v. Rusk, 381 U. S.
1,
381 U. S. 16-17
(1965);
Estes v. Texas, 381 U. S. 532,
Page 443 U. S. 405
381 U. S.
539-540 (1965).
See also Houchins v. KQED,
Inc., 438 U. S. 1,
438 U. S. 9-15
(1978) (opinion of BURGER, C.J., joined by WHITE and REHNQUIST,
JJ.);
id. at
438 U. S. 16
(STEWART, J., concurring).
"The First and Fourteenth Amendments do not guarantee the public
a right of access to information generated or controlled by
government, nor do they guarantee the press any basic right of
access superior to that of the public generally. The Constitution
does no more than assure the public and the press equal access once
government has opened its doors."
Ibid. Thus, this Court emphatically has rejected the
proposition advanced in MR. JUSTICE POWELL's concurring opinion,
ante at
443 U. S.
400-401, that the First Amendment is some sort of
constitutional "sunshine law" that requires notice, an opportunity
to be heard, and substantial reasons before a governmental
proceeding may be closed to the public and press. Because this
Court has refused to find a First Amendment right of access in the
past, lower courts should not assume that, after today's decision,
they must adhere to the procedures employed by the trial court in
this case or to those advanced by MR. JUSTICE POWELL in his
separate opinion in order to avoid running afoul of the First
Amendment. To the contrary, in my view and, I think, in the view of
a majority of this Court, the lower courts are under no
constitutional constraint either to accept or reject those
procedures. They remain, in the best tradition of our federal
system, free to determine for themselves the question whether to
open or close the proceeding. [
Footnote
3/2] Hopefully,
Page 443 U. S. 406
they will decide the question by accommodating competing
interests in a judicious manner. But so far as the Constitution is
concerned, the question is for them, not us, to resolve.
[
Footnote 3/1]
In fact, as both the Court and the dissent recognize, the
instances in which pretrial publicity alone, even pervasive and
adverse publicity, actually deprives a defendant of the ability to
obtain a fair trial will be quite rare.
Ante at
443 U. S. 379
n. 6;
post at
443 U. S.
443-444;
see Nebraska Press Assn. v. Stuart,
427 U. S. 539,
427 U. S.
551-555 (1976);
Murphy v. Florida, 421 U.
S. 794,
421 U. S.
798-799 (1975);
Beck v. Washington,
369 U. S. 541,
369 U. S. 557
(1962);
Stroble v. California, 343 U.
S. 181,
343 U. S.
191-194 (1952).
[
Footnote 3/2]
My Brother POWELL suggests in his concurring opinion that I am
wrong in so stating.
Ante at
443 U. S. 398
n. 2. He believes that the four dissenters -- who expressly reject
his First Amendment views,
post at
443 U. S. 411,
and who, instead, rely on a Sixth Amendment analysis that is
repudiated by a majority of the Court today -- will join him in any
subsequent case to impose constitutional limitations on the ability
of a trial court to close judicial proceedings. I disagree with MR.
JUSTICE POWELL for two reasons. First, in a matter so commonly
arising in the regular administration of criminal justice, I do not
so lightly as my Brother POWELL impute to the four dissenters in
this case a willingness to ignore the doctrine of
stare
decisis and to join with him in some later decision to form
what might fairly be called an "odd quintuplet," agreeing that the
authority of trial courts to close judicial proceedings to the
public is subject to limitations stemming from two different
sources in the Constitution. But even if this were to occur, the
very diversity of views that necessarily would be reflected in any
such disposition would seem to me, as a practical matter, to place
outside of any limits imposed by the United States Constitution all
but the most bizarre orders closing judicial proceedings -- the
sort of orders which have spawned the saying that "hard cases make
bad law."
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, and MR. JUSTICE MARSHALL join, concurring in part and
dissenting in part.
I concur in Part II of the Court's opinion but I dissent from
that opinion's subsequent Parts. I also cannot join the Court's
phrasing of the "question presented,"
ante at
443 U. S.
370-371, or its distress and concern with the publicity
the Clapp murder received in the Seneca County, N.Y. area.
Today's decision, as I view it, is an unfortunate one. I fear
that the Court surrenders to the temptation to overstate and
overcolor the actual nature of the pre-August 7, 1976, publicity;
that it reaches for a strict and flat result; and that, in the
process, it ignores the important antecedents and significant
developmental features of the Sixth Amendment. The result is an
inflexible
per se rule, as MR. JUSTICE REHNQUIST so
appropriately observes in his separate concurrence,
ante
at
443 U. S.
403-404. That rule is to the effect that, if the defense
and the prosecution merely agree to have the public excluded from a
suppression hearing, and the trial judge does not resist -- as
trial judges may be prone not to do, since nonresistance is easier
than resistance -- closure shall take place, and there is nothing
in the Sixth Amendment that prevents
Page 443 U. S. 407
that happily agreed upon event. The result is that the important
interests of the public and the press (as a part of that public) in
open judicial proceedings are rejected and cast aside as of little
value or significance.
Because I think this easy but wooden approach is without support
either in legal history or in the intendment of the Sixth
Amendment, I dissent.
I
The Court's review of the facts,
ante at
443 U. S.
371-377, does not face up to the placid, routine, and
innocuous nature of the news articles about the case and, indeed,
their comparative infrequency. I attempt to supply what is
missing:
The reporting by both newspapers on August 3 of the filing of
the indictments was the first time either of the two papers had
carried any comment about the case since July 25, nine days before.
On August 6, each paper carried a story reporting the arraignments
of Greathouse and Jones on the preceding day. Thereafter, no story
about the Clapp case appeared in petitioner's papers until the
suppression hearing on November 4. Thus, for 90 days preceding that
hearing, there was no publicity whatsoever. From July 20, when the
first story appeared, until August 6, a period of 18 days, 14
different articles were printed in the two papers. Because the
evening paper usually reprinted or substantially duplicated the
morning story, there were articles on only 7 different days during
this 18-day period, with the evening story containing little that
differed from the morning story on the 5 days that accounts
appeared in both papers.
Furthermore, there can be no dispute whatsoever that the stories
consisted almost entirely of straightforward reporting of the facts
surrounding the investigation of Clapp's disappearance, and of the
arrests and charges. The stories contained no "editorializing" and
nothing that a fair-minded person could describe as sensational
journalism. Only one picture appeared; it was a photograph of Clapp
that accompanied
Page 443 U. S. 408
the first story printed by the Times-Union. There is nothing in
the record to indicate that the stories were placed on the page or
within the paper so as to play up the murder investigation.
Headlines were entirely factual. The stories were relatively brief.
They appeared only in connection with a development in the
investigation, and they gave no indication of being published to
sustain popular interest in the case.
The motions to suppress came on before Judge DePasquale on
November 4. Despite the absence of any publicity in the newspapers
for three months, counsel for both defendants, at the commencement
of the hearing and without previously having indicated their
intention so to do, asked for the exclusion of all members of the
public and press present in the courtroom. They urged as grounds
for their motions that "we are going to take evidentiary matters
into consideration here that may or may not be brought forth
subsequently at a trial." App. 4. After being reminded by the court
that the defendants had a constitutional right to a public trial
and that such exclusion "does abridge the rights, the
constitutional rights, of the defendants," Greathouse's attorney,
joined by Jones' lawyer, stated:
"I fully understand that, your Honor, but this is not a trial,
it is a hearing, and I think the dilatorious [
sic] effects
far outweigh the constitutional rights."
Id. at 5. The court then turned to the District
Attorney. The prosecutor indicated that he did not wish to be heard
with respect to the motion, and said only: "I stated earlier that I
thought it was up to the defense, and I would not oppose what they
wished to do."
Ibid. Thereupon the court, without further
inquiry, granted the motion for closure. It said that "it is not
the trial of the matter," and that "matters may come up in the
testimony of the People's witnesses that may be prejudicial to the
defendant."
Id. at 6.
We therefore have a situation where the two defense attorneys,
suddenly and without notice, moved that the suppression hearing be
closed, and where the prosecutor, obviously taken off guard and
having no particularly strong feeling, or any
Page 443 U. S. 409
considered position, acquiesced. The court, to its credit, was
sensitive about the rights of the defendants to a public
proceeding, even though it thought "it is not the trial of the
matter." The court obviously was not impressed with any brooding
presence of possible prejudicial publicity. Its comment was only
that "evidentiary matters may come up . . . that may be
prejudicial." It is difficult to imagine anything less sensational
in a murder context.
Yet this is all that the Court possesses to justify its
description of the question presented as one in the context of an
agreement by the accused, the prosecutor, and the trial judge to
have closure "in order to assure a fair trial,"
ante at
443 U. S. 371,
and the hearing as one where,
ante at
443 U. S. 375,
"defense attorneys argued that the unabated buildup of adverse
publicity had jeopardized the ability of the defendants to receive
a fair trial."
I find little in the record that tends to support either of
those descriptions of such serious consequence. There is no
reference to or inference of an "unabated buildup of adverse
publicity." All the defense attorneys spoke of were "the
dilatorious effects" of "evidentiary matters . . . that may or may
not be brought forth subsequently at a trial." App. 5, 4. MR.
JUSTICE REHNQUIST notes this thin concern.
Ante at
443 U. S.
403-404. The defense lawyers were representing their
clients, of course, and perhaps were properly overcautious, but
they certainly favored the court with nothing about "unabated
buildup of adverse publicity" that must be prevented "in order to
assure a fair trial." In fairness to the Court today, its colorful
allusions to what it assumes took place when the motions were
presented on November 4 may be attributable to comments in the
opinion of the majority of the New York Court of Appeals: [
Footnote 4/1]
"At the commencement of a pretrial suppression hearing,
Page 443 U. S. 410
defense attorneys argued that an unabated buildup of adverse
publicity had already jeopardized their clients' ability to receive
a fair trial."
43 N.Y.2d 370, 375, 372 N.E.2d 544, 546.
"The details, however, were not known, and public curiosity was
intense."
Id. at 381, 372 N.E.2d at 550.
The New York majority went on to rule that the presumption of
closure was raised in this case because the public knew that
respondents Greathouse and Jones "had been caught
red-handed'
by Michigan police with fruits of the crime," and because it was
"widely known" that they "had made incriminating statements before
being returned to" New York. Ibid., 372 N.E.2d at 550. And
the court found that the level of "legitimate public concern"
necessary to overcome the presumption of closure had not been
demonstrated:
"Widespread public awareness kindled by media saturation does
not legitimize mere curiosity. Here, the public's concern was not
focused on prosecutorial or judicial accountability;
irregularities, if any, had occurred out of State. The interest of
the public was chiefly one of active curiosity with respect to a
notorious local happening."
Ibid., 372 N.E.2d at 550.
With all respect, it is difficult for me to extract all of that
from the casual comments made at the hearing before Judge
DePasquale.
Cf. People v. Jones, 47 N.Y.2d 409, 391 N.E.2d
1335 (1979).
II
This Court confronts in this case another aspect of the
recurring conflict that arises whenever a defendant in a criminal
case asserts that his right to a fair trial clashes with the right
of the public in general, and of the press in particular, to an
Page 443 U. S. 411
open proceeding. It has considered other aspects of the problem
in deciding whether publicity was sufficiently prejudicial to have
deprived the defendant of a fair trial.
Compare Murphy v.
Florida, 421 U. S. 794
(1975),
with Sheppard v. Maxwell, 384 U.
S. 333 (1966). And recently it examined the extent to
which the First and Fourteenth Amendments protect news
organizations' rights to publish, free from prior restraint,
information learned in open court during a pretrial suppression
hearing.
Nebraska Press Assn. v. Stuart, 427 U.
S. 539 (1976). But the Court has not yet addressed the
precise issue raised by this case: whether and to what extent the
Constitution prohibits the States from excluding, at the request of
a defendant, members of the public from such a hearing.
See
id. at
427 U. S. 564
n. 8;
id. at 584 n. 11 (BRENNAN, J., concurring in
judgment); Times-Picayune Publishing Corp. v. Schulingkamp,
419 U. S. 1301,
419 U. S.
1308 n. 3 (1974) (POWELL, J., in chambers).
It is clear that this case does not involve the type of prior
restraint that was in issue in cases like
Nebraska Press.
Neither the County Court nor the Court of Appeals restrained
publication of, or comment upon, information already known to the
public or the press, or about the case in general. The issue here,
then, is not one of prior restraint on the press, but is, rather,
one of
access to a judicial proceeding.
Despite MR JUSTICE POWELL's concern,
ante p.
443 U. S. 397,
this Court heretofore has not found, and does not today find, any
First Amendment right of access to judicial or other governmental
proceedings.
See, e.g., Nixon v. Warner Communications,
Inc., 435 U. S. 589,
435 U. S.
608-610 (1978);
Pell v. Procunier, 417 U.
S. 817,
417 U. S. 834
(1974). One turns then, instead, to that provision of the
Constitution that speaks most directly to the question of access to
judicial proceedings, namely, the public trial provision of the
Sixth Amendment.
A
The familiar language of the Sixth Amendment reads: "In all
criminal prosecutions, the accused shall enjoy the right
Page 443 U. S. 412
to a speedy and public trial." This provision reflects the
tradition of our system of criminal justice that a trial is a
"public event," and that "[w]hat transpires in the court room is
public property."
Craig v. Harney, 331 U.
S. 367,
331 U. S. 374
(1947). And it reflects, as well, "the notion, deeply rooted in the
common law, that
justice must satisfy the appearance of
justice.'" Levine v. United States, 362 U.
S. 610, 362 U. S. 616
(1960), quoting Offutt v. United States, 348 U. S.
11, 348 U. S. 14
(1954).
More importantly, the requirement that a trial of a criminal
case be public embodies our belief that secret judicial proceedings
would be a menace to liberty. The public trial is rooted in the
"principle that justice cannot survive behind walls of silence,"
Sheppard v. Maxwell, 384 U.S. at
384 U. S. 349,
and in the "traditional Anglo-American distrust for secret trials,"
In re Oliver, 333 U. S. 257,
333 U. S. 268
(1948). This Nation's accepted practice of providing open trials in
both federal and state courts
"has always been recognized as a safeguard against any attempt
to employ our courts as instruments of persecution. The knowledge
that every criminal trial is subject to contemporaneous review in
the forum of public opinion is an effective restraint on possible
abuse of judicial power."
Id. at
333 U. S.
270.
The public trial guarantee, moreover, ensures that not only
judges, but all participants in the criminal justice system, are
subjected to public scrutiny as they conduct the public's business
of prosecuting crime. This publicity "guards against the
miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism."
Sheppard v. Maxwell, 384 U.S. at
384 U. S. 350.
Publicity "serves to guarantee the fairness of trials and to bring
to bear the beneficial effects of public scrutiny upon the
administration of justice."
Cox Broadcasting Corp. v.
Cohn, 420 U. S. 469,
420 U. S. 492
(1975).
"The commission of crime, prosecutions resulting from it, and
judicial proceedings arising from the prosecutions . . . are
without question events of legitimate
Page 443 U. S. 413
concern to the public."
Ibid. Indeed, such information is "of critical
importance to our type of government in which the citizenry is the
final judge of the proper conduct of public business."
Id.
at
420 U. S. 495.
[
Footnote 4/2] Even in those few
cases in which the Court has permitted limits on courtroom
publicity out of concern for prejudicial coverage, it has taken
care to emphasize that publicity of judicial proceedings "has
always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field."
Sheppard v.
Maxwell, 384 U.S. at
384 U. S. 350.
And in
Estes v. Texas, 381 U. S. 532,
381 U. S. 541
(1965), the Court found that it "is true that the public has the
right to be informed as to what occurs in its courts." MR. JUSTICE
STEWART, the author of the Court s opinion here, stated in dissent
in
Estes, id. at
381 U. S.
614-615: "The suggestion that there are limits upon the
public's right to know what goes on in the courts causes me deep
concern."
Page 443 U. S. 414
The importance we as a Nation attach to the public trial is
reflected both in its deep roots in the English common law and in
its seemingly universal recognition in this country since the
earliest times. When
In re Oliver was decided in 1948, the
Court was
"unable to find a single instance of a criminal trial conducted
in camera in any federal, state, or municipal court during
the history of this country,"
333 U.S. at
333 U. S. 266
(footnote omitted), with the exception of cases in courts-martial
and the semi-private conduct of juvenile court proceedings.
Id. at
333 U. S. 266
n. 12. Nor could it uncover any record "of even one such secret
criminal trial in England since abolition of the Court of Star
Chamber in 1641."
Ibid. This strong tradition of publicity
in criminal proceedings, and the States' recognition of the
importance of a public trial, led the Court in
In re
Oliver to conclude that the Sixth Amendment's guarantee of a
public trial, as applied to the States through the Fourteenth
Amendment, proscribed conviction through the type of secret process
at issue in that case.
The public trial concept embodied in the Sixth Amendment remains
a fundamental and essential feature of our system of criminal
justice in both the federal courts and in the state courts.
[
Footnote 4/3] The Due Process
Clause of the Fourteenth Amendment
Page 443 U. S. 415
requires that, in criminal cases, the States act in conformity
with the public trial provision of the Sixth Amendment.
Duncan
v. Louisiana, 391 U. S. 145,
391 U. S. 148
(1968);
Argersinger v. Hamlin, 407 U. S.
25,
407 U. S. 28
(1972).
B
By its literal terms, the Sixth Amendment secures the right to a
public trial only to "the accused." And in this case, the accused
were the ones who sought to waive that right, and to have the
public removed from the pretrial hearing in order to guard against
publicity that possibly would be prejudicial to them. The Court is
urged, accordingly, to hold that the decision of respondents
Greathouse and Jones to submit to a private hearing is
controlling.
The Court, however, previously has recognized that the Sixth
Amendment may implicate interests beyond those of the accused. In
Barker v. Wingo, 407 U. S. 514
(1972), for example, the Court unanimously found this to be so with
respect to the right to a speedy trial.
"In addition to the general concern that all accused persons be
treated according to decent and fair procedures, there is a
societal interest in providing a speedy trial which exists separate
from, and at
Page 443 U. S. 416
times in opposition to, the interests of the accused."
Id. at
407 U. S. 519.
This separate public interest led the Court to reject a rule that
would have made the defendant's assertion of his speedy trial right
the critical factor in deciding whether the right had been denied,
for a rule depending entirely on the defendant's demand failed to
take into account that "society has a particular interest in
bringing swift prosecutions."
Id. at
407 U. S.
527.
The same is true of other provisions of the Sixth Amendment. In
Singer v. United States, 380 U. S. 24
(1965), the Court rejected a contention that, since the
constitutional right to a jury trial was the right of the accused,
he had an absolute right to be tried by a judge alone if he
considered a bench trial to be to his advantage. Rejecting a
mechanistic waiver approach, the Court reviewed the history of
trial by jury at English common law and the practice under the
Constitution. The common law did not indicate that the accused had
a right to compel a bench trial. Although there were isolated
instances where such a right had been recognized in the American
Colonies, the Court could find no
"general recognition of a defendant's right to be tried by the
court, instead of by a jury. Indeed, if there had been recognition
of such a right, it would be difficult to understand why Article
III and the Sixth Amendment were not drafted in terms which
recognized an option."
Id. at
380 U. S. 31.
Noting that practice under the Constitution similarly established
no independent right to a bench trial, the Court held that neither
the jury trial provision in Art. III, § 2, [
Footnote 4/4] nor the Sixth Amendment empowered an
accused to compel the opposite of what he was guaranteed
specifically by the Constitution.
The Court in
Singer recognized that, in
Patton v.
United States, 281 U. S. 276
(1930), it had held that a defendant could waive his jury trial
right, but it held that a proffered
Page 443 U. S. 417
waiver need not be given effect in all cases. Quoting
Patton, 281 U.S. at
281 U. S. 312,
the Court observed:
"Trial by jury has been established by the Constitution as the
'normal and . . . preferable mode of disposing of issues of fact in
criminal cases.'"
380 U.S. at
380 U. S. 35.
The Court rejected
"the bald proposition that to compel a defendant in a criminal
case to undergo a jury trial against his will is contrary to his
right to a fair trial or to due process."
Id. at
380 U. S. 36.
Rather, the Court said, a defendant's "only constitutional right
concerning the method of trial is to an impartial trial by jury."
Ibid. Accordingly, the Court concluded that the
Constitution was no impediment to conditioning the grant of a
request for a bench trial upon the consent of the court and the
Government.
In
Singer, the Court also recognized that similar
reasoning is applicable to other provisions to the Sixth Amendment.
"The ability to waive a constitutional right does not ordinarily
carry with it the right to insist upon the opposite of that right."
Id. at
380 U. S. 34-35.
For example, although the accused
"can waive his right to be tried in the State and district where
the crime was committed, he cannot in all cases compel transfer of
the case to another district."
Id. at
380 U. S. 35.
While he "can waive his right to be confronted by the witnesses
against him," he cannot thereby compel the prosecution "to try the
case by stipulation." And, most relevant here,
"although a defendant can, under some circumstances, waive his
constitutional right to a public trial, he has no absolute right to
compel a private trial."
Ibid.
Indeed, in only one case, apparently,
Faretta v.
California, 422 U. S. 806
(1975), has this Court ever inferred from the Sixth Amendment a
right that fairly may be termed the "opposite" of an explicit
guarantee. In
Faretta, the Court found that not only did
the Amendment secure the assistance of counsel to the defendant in
a criminal prosecution, but, by inference, it also granted him the
right to self-representation.
Page 443 U. S. 418
In so ruling, however, the Court was careful to stress that it
followed
Singer's holding that the ability to waive a
Sixth Amendment right did not carry with it the automatic right to
insist upon its opposite. "The inference of rights is not, of
course, a mechanical exercise." 422 U.S. at
422 U. S. 819
n. 15. By inferring the existence of a right to
self-representation, the Court did not mean to
"suggest that this right arises mechanically from a defendant's
power to waive the right to the assistance of counsel. . . . On the
contrary, the right must be independently found in the structure
and history of the constitutional text."
Id. at
422 U. S.
819-820, n. 15. Following the approach of
Singer, then, the Court found that "the structure of the
Sixth Amendment, as well as . . . the English and colonial
jurisprudence from which the Amendment emerged," 422 U.S. at
424 U. S. 818,
established the existence of an independent right of
self-representation.
C
It is thus clear from
Singer, Barker, and
Faretta that the fact the Sixth Amendment casts the right
to a public trial in terms of the right of the accused is not
sufficient to permit the inference that the accused may compel a
private proceeding simply by waiving that right. Any such right to
compel a private proceeding must have some independent basis in the
Sixth Amendment. In order to determine whether an independent basis
exists, we should examine, as the Court did in
Singer, the
common law and colonial antecedents of the public trial provision,
as well as the original understanding of the Sixth Amendment. If no
such basis is found, we should then turn to the function of the
public trial in our system, so that we may decide under what
circumstances, if any, a trial court may give effect to a
defendant's attempt to waive his right.
1. The Court, in
In re Oliver, 333 U.S. at
333 U. S. 266,
recognized that this Nation's "accepted practice of guaranteeing a
public trial to an accused has its roots in our English common law
heritage." Study of that heritage reveals that the tradition
Page 443 U. S. 419
of conducting the proceedings in public came about as an
inescapable concomitant of trial by jury, quite unrelated to the
rights of the accused, and that the practice at common law was to
conduct all criminal proceedings in public.
Early Anglo-Saxon criminal proceedings were "open-air meetings
of the freemen who were bound to attend them." F. Pollock, The
Expansion of the Common Law 140 (1904) (hereinafter Pollock).
Criminal trials were by compurgation or by ordeal, and took place
invariably before the assembled community, many of whom were
required to attend. 1 W. Holdsworth, A History of English Law 7-24
(4th ed.1927) (hereinafter Holdsworth). This Anglo-Saxon tradition
of conducting a judicial proceeding "like an ill-managed public
meeting," Pollock 30, persisted after the Conquest, when the Norman
kings introduced in England the Frankish system of conducting
inquests by means of a jury. Wherever royal justice was introduced,
the jury system accompanied it, and both spread rapidly throughout
England in the years after 1066. 1 Holdsworth 316. The rapid spread
of royal courts led to the replacement of older methods of trial,
which were always public, with trial by jury with little procedural
change. The jury trial "was simply substituted for [older methods],
and was adapted with as little change as possible to its new
position."
Id. at 317. This substitution of royal justice
for traditional law served the Crown's interests by
"enlarging the king's jurisdiction and bringing well earned
profit in fines and otherwise to the king's exchequer, and the best
way of promoting those ends was to develop the institution, or let
it develop itself, along the lines of least resistance."
Pollock 40.
Thus, the common law from its inception was wedded to the
Anglo-Saxon tradition of publicity, and the "ancient rul[e that
c]ourts of justice are public,"
id. at 51, was in turn
strengthened by the hegemony the royal courts soon established over
the administration of justice. Bentham noted that by this
accommodation of the common law to the Anglo-Saxon
Page 443 U. S. 420
practice of holding open courts, "publicity . . . became a
natural, and, as good fortune would have it, at length an
inseparable, concomitant" of English justice. 1 J. Bentham, The
Rationale of Judicial Evidence 585-585 (1827).
Publicity thus became intrinsically associated with the sittings
of the royal courts. Coke noted that the very words "
In curia
Domini Regis" ("In the King's Court"), in the Statutum de
Marleberge, ch. 1, enacted in 1267, 52 Hen. 3, indicated public
proceedings. 2 E. Coke, Institutes of the Laws of England 103 (6th
ed. 1681). [
Footnote 4/5]
This and other commentary [
Footnote
4/6] indicate that by the 17th century the concept of a public
trial was firmly established under the common law. Indeed, there is
little record, if any, of secret proceedings, criminal or civil,
having occurred at any time in known English history. Apparently,
not even the Court of Star Chamber, the name of which has been
linked with secrecy, conducted hearings in private. 5 Holdsworth
156, and nn. 5 and 7, and 163; Radin, The Right to a Public Trial,
6 Temp.L.Q. 381, 386-387 (1932). Rather, the unbroken tradition of
the English common law was that criminal trials were conducted
"openlie in the presence of the Judges,
Page 443 U. S. 421
the Justices, the enquest, the prisoner, and so manie as will or
can come so neare as to heare it, and all depositions and witnesses
given aloude, that all men may heare from the mouth of the
depositors and witnesses what is saide."
T. Smith, De Republica Anglorum 101 (Alston ed.1972).
In the light of this history, it is most doubtful that the
tradition of publicity ever was associated with the rights of the
accused. The practice of conducting the trial in public was
established as a feature of English justice long before the
defendant was afforded even the most rudimentary rights. For
example, during the century preceding the English Civil War, the
defendant was kept in secret confinement, and could not prepare a
defense. He was not provided with counsel either before or at the
trial. He was given no prior notice of the charge or evidence
against him. He probably could not call witnesses on his behalf.
Even if he could, he had no means to procure their attendance.
Witnesses were not necessarily confronted with the prisoner.
Document originals were not required to be produced. There were no
rules of evidence. The confessions of accomplices were admitted
against each other and regarded as specially cogent evidence. And
the defendant was compelled to submit to examination. 1 J. Stephen,
A History of the Criminal Law of England 350 (1883). Yet the trial
itself, without exception, was public.
It is not surprising, therefore, that both Hale and Blackstone,
in identifying the function of publicity at common law, discussed
the open trial requirement not in terms of individual liberties,
but in terms of the effectiveness of the trial process. Each
recognized publicity as an essential of trial at common law. And
each emphasized that the requirement that evidence be given in open
court deterred perjury, since "a witness may frequently depose that
in private which he will be ashamed to testify in a public and
solemn tribunal." 3 W. Blackstone, Commentaries *373.
See
M. Hale, The History of the Common Law of England 343, 345 (6th ed.
1820).
Page 443 U. S. 422
Similarly, both recognized that publicity was an effective check
on judicial abuse, since publicity made it certain that "if the
judge be PARTIAL, his partiality and injustice will be evident to
all by-standers."
Id. at 344.
See 3 W.
Blackstone, Commentaries *372. [
Footnote 4/7]
In the same vein, Bentham stressed that publicity was
"the most effectual safeguard of testimony, and of the decisions
depending on it; it is the soul of justice; it ought to be extended
to every part of the procedure, and to all causes."
J. Bentham, A Treatise On Judicial Evidence 67 (1825). Bentham
believed that, above all, publicity was the most effectual
safeguard against judicial abuse, without which all other checks on
misuse of judicial power became ineffectual. 1 J. Bentham, The
Rationale of Judicial Evidence 525 (1827). And he contended that
publicity was of such importance to the administration of justice,
especially in criminal cases, that it should not be dispensed with
even at the request of the defendant.
"The reason is . . . there is a party interested (viz. the
public at large) whose interest might, by means of the privacy in
question, and a sort of conspiracy, more or less explicit, between
the other persons concerned (the judge included) be made a
sacrifice."
Id. at 576-577.
This English common law tradition concerning public trials out
of which the Sixth Amendment provision grew is not made up of
"shreds of English legal history and early state constitutional and
statutory provisions,"
see Faretta v. California, 422 U.S.
at
422 U. S. 843
(dissenting opinion describing the right of self-representation),
pieced together to produce the desired result.
Page 443 U. S. 423
Whatever may be said of the historical analysis of other Sixth
Amendment provisions, history here reveals an unbroken tradition at
English common law of open judicial proceedings in criminal cases.
In publicity, we "have one tradition, at any rate, which has
persisted through all changes" from Anglo-Saxon times through the
development of the modern common law. Pollock 31-32.
See
E. Jenks, The Book of English Law 73-74 (6th ed.1967). There is no
evidence that criminal trials of any sort ever were conducted in
private at common law, whether at the request of the defendant or
over his objection. And there is strong evidence that the public
trial, which developed before other procedural rights now routinely
afforded the accused, widely was perceived as serving important
social interests, relating to the integrity of the trial process,
that exist apart from, and conceivably in opposition to, the
interests of the individual defendant. Accordingly, I find no
support in the common law antecedents of the Sixth Amendment public
trial provision for the view that the guarantee of a public trial
carries with it a correlative right to compel a private proceeding.
[
Footnote 4/8]
Page 443 U. S. 424
2. This English common law view of the public trial early was
transplanted to the American Colonies, largely through the
influence of the common law writers whose views shaped the early
American legal systems. "Coke's Institutes were read in the
American Colonies by virtually every student of the law,"
Klopfer v. North Carolina, 386 U.
S. 213,
386 U. S. 225
(1967), and no citation is needed to establish the impact of Hale
and Blackstone on colonial legal thought. Early colonial charters
reflected the view that open proceedings were an essential quality
of a court of justice, and they cast the concept of a public trial
in terms of a characteristic of the system of justice, rather than
of a right of the accused. Indeed, the first public trial provision
to appear in America spoke in terms of the right of the public, not
the accused, to attend trials:
"That in all publick courts of justice for tryals of causes,
civil or criminal, any person or persons, inhabitants of the said
Province may freely come into, and attend the said courts, and hear
and be present, at all or any such tryals as shall be there had or
passed, that justice may not be done in a corner nor in any covert
manner."
Concessions and Agreements of West New Jersey (1677), ch. XXIII,
quoted in 1 B. Schwartz, The Bill of Rights: A Documentary History
129 (1971) (hereinafter Schwartz).
Page 443 U. S. 425
Similarly, the Pennsylvania Frame of Government of 1682, which
Professor Schwartz described as, "[i]n many ways, [one of] the most
influential of the Colonial documents protecting individual
rights," 1 Schwartz 130, provided that, in William Penn's colony,
"all courts shall be open."
Id. at 140.
This practice of conducting judicial proceedings in criminal
cases in public took firm hold in all the American Colonies. There
is no evidence that any colonial court conducted criminal trials
behind closed doors, or that any recognized the right of an accused
to compel a private trial.
Neither is there any evidence that casting the public trial
concept in terms of a right of the accused signaled a departure
from the common law practice by granting the accused the power to
compel a private proceeding. The first provision to speak of the
public trial as an entitlement of the accused apparently was that
in � IX of the Pennsylvania Declaration of Rights of 1776. It said
that, "in all prosecutions for criminal offences, a man hath a
right to . . . a speedy public trial."
See 1 Schwartz 265.
The provision was borrowed almost verbatim from the Virginia
Declaration of Rights, adopted earlier the same year, with one
change: the word "public" was added. Virginia's Declaration had
provided only that the accused "hath a right to . . . a speedy
trial."
See id. at 235. It is doubtful that, by adding
this single word, Pennsylvania intended to depart from its historic
practice by creating a right waivable by the defendant, for at the
time its Declaration of Rights was adopted, Pennsylvania also
adopted its Constitution of 1776, providing, in § 26, that "[a]ll
courts shall be open."
See 1 Schwartz 271. And there is no
evidence that, after 1776, Pennsylvania departed from earlier
practice, either by conducting trials in private or by recognizing
a power in the accused to compel a nonpublic proceeding. [
Footnote 4/9]
Page 443 U. S. 426
Similarly, there is no indication that the First Congress, in
proposing what became the Sixth Amendment, meant to depart from the
common law practice by creating a power in an accused to compel a
private proceeding. The Constitution as originally adopted, of
course, did not contain a public trial guarantee. And though
several States proposed amendments to Congress along the lines of
the Virginia Declaration, only New York mentioned a "public" trial.
See E. Dumbauld, The Bill of Rights 173-205 and,
specifically, 190 (1957); 1 Elliot's Debates 328 (2d ed. 1836). But
New York did not follow Virginia's language by casting the right as
one belonging only to the accused; it urged, rather, that Congress
should propose an amendment providing that the "trial should be
speedy, public, and by an impartial jury . . ." Amendments Proposed
by New York (1788), quoted in 1 Elliot's Debates, at 328.
I am thus persuaded that Congress, modeling the proposed
amendment on the cognate provision in the Virginia Declaration, as
many States had urged, did merely what Pennsylvania had done in
1776, namely, added the word "public" to the Virginia language
without at all intending thereby to create a correlative right to
compel a private proceeding. Indeed, in light of the settled
practice at common law, one may also say here that,
"if there had been recognition of such a right, it would be
difficult to understand why . . . the Sixth Amendment [was] not
drafted in terms which recognized an option."
Singer v. United States, 380 U.S. at
380 U. S. 31.
And, to use the language of the Court in
Faretta v.
California, 422
Page 443 U. S. 427
U.S. at
422 U. S. 832:
"If anyone had thought that the Sixth Amendment, as drafted,"
departed from the common law principle of publicity in criminal
proceedings, "there would undoubtedly have been some debate or
comment on the issue. But there was none." Mr. Justice Story,
writing when the adoption of the Sixth Amendment was within the
memory of living man, noted that,
"in declaring, that the accused shall enjoy the right to a
speedy and public trial . . . [the Sixth Amendment] does but follow
out the established course of the common law in all trials for
crimes. The trial is always public."
3 J. Story, Commentaries on the Constitution of the United
States 662 (1833).
I consequently find no evidence in the development of the public
trial concept in the American Colonies and in the adoption of the
Sixth Amendment to indicate that there was any recognition in this
country, any more than in England, of a right to a private
proceeding or a power to compel a private trial arising out of the
ability to waive the grant of a public one. I shall not indulge in
a mere mechanical inference that, by phrasing the public trial as
one belonging to the accused, the Framers of the Amendment must
have meant the accused to have the power to dispense with
publicity.
3. I thus conclude that there is no basis in the Sixth Amendment
for the suggested inference. I also find that, because there is a
societal interest in the public trial that exists separately from,
and at times in opposition to, the interests of the accused,
cf. Barker v. Wingo, 407 U.S. at
407 U. S. 519,
a court may give effect to an accused's attempt to waive his public
trial right only in certain circumstances.
The courts and the scholars of the common law perceived the
public trial tradition as one serving to protect the integrity of
the trial and to guard against partiality on the part of the court.
The same concerns are generally served by the public trial today.
The protection against perjury which publicity provides, and the
opportunity publicity offers to unknown witnesses to make
themselves known, do not necessarily serve
Page 443 U. S. 428
the defendant.
See 6 J. Wigmore, Evidence § 1834
(Chadbourn rev.1976) (hereinafter Wigmore). The public has an
interest in having criminal prosecutions decided on truthful and
complete records, and this interest, too, does not necessarily
coincide with that of the accused.
Nor does the protection against judicial partiality serve only
the defendant. It is true that the public trial provision serves to
protect every accused from the abuses to which secret tribunals
would be prone. But the defendant himself may benefit from the
partiality of a corrupt, biased, or incompetent judge, "for a
secret trial can result in favor to, as well as unjust prosecution
of, a defendant."
Lewis v. Peyton, 352 F.2d 791, 792 (CA4
1965).
Open trials also enable the public to scrutinize the performance
of police and prosecutors in the conduct of public judicial
business. Trials, and particularly suppression hearings, typically
involve questions concerning the propriety of police and government
conduct that took place hidden from the public view. Any interest
on the part of the prosecution in hiding police or prosecutorial
misconduct or ineptitude may coincide with the defendant's desire
to keep the proceedings private, with the result that the public
interest is sacrificed from both sides.
Public judicial proceedings have an important educative role as
well. The victim of the crime, the family of the victim, others who
have suffered similarly, or others accused of like crimes, have an
interest in observing the course of a prosecution. Beyond this,
however, is the interest of the general public in observing the
operation of the criminal justice system. Judges, prosecutors, and
police officials often are elected or are subject to some control
by elected officials, and a main source of information about how
these officials perform is the open trial. And the manner in which
criminal justice is administered in this country is, in and of
itself, of interest to all citizens. In
Cox Broadcasting Corp.
v. Cohn,
Page 443 U. S. 429
420 U.S. at
420 U. S. 495,
it was noted that information about the criminal justice system
"appears to us to be of critical importance to our type of
government in which the citizenry is the final judge of the proper
conduct of public business."
Important in this regard, of course, is the appearance of
justice.
"Secret hearings -- though they be scrupulously fair in reality
-- are suspect by nature. Public confidence cannot long be
maintained where important judicial decisions are made behind
closed doors and then announced in conclusive terms to the public,
with the record supporting the court's decision sealed from public
view."
United States v. Canfrani, 573 F.2d 835, 851 (CA3
1978). The ability of the courts to administer the criminal laws
depends in no small part on the confidence of the public in
judicial remedies, and on respect for and acquaintance with the
processes and deliberations of those courts. 6 Wigmore § 1834, at
438. Anything that impairs the open nature of judicial proceedings
threatens to undermine this confidence, and to impede the ability
of the courts to function.
These societal values secured by the public trial are
fundamental to the system of justice on both the state and federal
levels. As such, they have been recognized by the large majority of
both state [
Footnote 4/10] and
federal [
Footnote 4/11] courts
that have considered
Page 443 U. S. 430
the issue over the years since the adoption of the Constitution.
Indeed, in those States with constitutional provisions
Page 443 U. S. 431
modeled on the Sixth Amendment, guaranteeing the right to a
public trial literally only to the accused, there has
Page 443 U. S. 432
been widespread recognition that such provisions serve the
interests of the public as well as those of the defendant.
[
Footnote 4/12]
I therefore conclude that the Due Process Clause of the
Fourteenth Amendment, insofar as it incorporates the public
Page 443 U. S. 433
trial provision of the Sixth Amendment, prohibits the States
from excluding the public from a proceeding within the ambit of the
Sixth Amendment's guarantee without affording full and fair
consideration to the public's interests in maintaining an open
proceeding. And I believe that the Sixth and Fourteenth Amendments
require this conclusion notwithstanding the fact it is the accused
who seeks to close the trial. [
Footnote 4/13]
D
Before considering whether and under what circumstances a court
may conduct a criminal proceeding in private, one must first decide
whether the Sixth Amendment, as applied through the Fourteenth,
encompasses the type of pretrial hearing contemplated by
Jackson v. Denno, 378 U. S. 368
(1964), and at issue in this case. The Amendment, of course, speaks
only of a public "trial." Both the County Court and the New York
Court of Appeals emphasized that exclusion from the formal trial on
the merits was not at issue, apparently in the belief that the
Sixth Amendment's public trial provision applies with less force,
or not at all, to a pretrial proceeding.
Page 443 U. S. 434
I find good reason to hold that even if a State, as it may,
chooses to hold a
Jackson v. Denno or other suppression
hearing separate from and prior to the full trial, the Sixth
Amendment's public trial provision applies to that hearing. First,
the suppression hearing resembles and relates to the full trial in
almost every particular. Evidence is presented by means of live
testimony, witnesses are sworn, and those witnesses are subject to
cross-examination. Determination of the ultimate issue depends in
most cases upon the trier of fact's evaluation of the evidence, and
credibility is often crucial. Each side has incentive to prevail,
with the result that the role of publicity as a testimonial
safeguard, as a mechanism to encourage the parties, the witnesses,
and the court to a strict conscientiousness in the performance of
their duties, and in providing a means whereby unknown witnesses
may become known, is just as important for the suppression hearing
as it is for the full trial.
Moreover, the pretrial suppression hearing often is critical,
and it may be decisive, in the prosecution of a criminal case. If
the defendant prevails, he will have dealt the prosecution's case a
serious, perhaps fatal, blow; the proceeding often then will be
dismissed or negotiated on terms favorable to the defense. If the
prosecution successfully resists the motion to suppress, the
defendant may have little hope of success at trial (especially
where a confession is in issue), with the result that the
likelihood of a guilty plea is substantially increased.
United
States v. Clark, 475 F.2d 240, 246-247 (CA2 1973);
United
States v. Cianfrani, 573 F.2d at 848-851.
The suppression hearing often is the only judicial proceeding of
substantial importance that takes place during a criminal
prosecution. In this very case, the hearing from which the public
was excluded was the only one in which the important factual and
legal issues in the prosecution of respondents Greathouse and Jones
were considered. It was the only proceeding at which the conduct of
the police, prosecution, and
Page 443 U. S. 435
the court itself was exposed to scrutiny. Indeed, in 1976, when
this case was processed, every felony prosecution in Seneca County
-- and I say this without criticism -- was terminated without a
trial on the merits. N.Y.Leg.Doc. No. 90, Judicial Conference of
the State of New York, 22d Annual Report 55 (1977). This statistic
is characteristic of our state and federal criminal justice systems
as a whole, [
Footnote 4/14] and
it underscores the importance of the suppression hearing in the
functioning of those systems.
Further, the issues considered at such hearings are of great
moment beyond their importance to the outcome of a particular
prosecution. A motion to suppress typically involves, as in this
case, allegations of misconduct by police and prosecution that
raise constitutional issues. Allegations of this kind, although
they may prove to be unfounded, are of importance to the public as
well as to the defendant. The searches and interrogations that such
hearings evaluate do not take place in public. The hearing
therefore usually presents the only opportunity the public has to
learn about police and prosecutorial conduct, and about allegations
that those responsible to the public for the enforcement of laws
themselves are breaking it.
A decision to suppress often involves the exclusion of highly
relevant evidence. Because this is so, the decision may generate
controversy.
See Bivens v. Six Unknown Fed.
Narcotics
Page 443 U. S. 436
Agents, 403 U. S. 388,
403 U. S.
412-420 (1971) (dissenting opinion). It is important
that any such decision be made on the basis of evidence and
argument offered in open court, so that all who care to see or read
about the case may evaluate for themselves the propriety of the
exclusion.
These factors lead me to conclude that a pretrial suppression
hearing is the close equivalent of the trial on the merits for
purposes of applying the public trial provision of the Sixth
Amendment. Unlike almost any other proceeding apart from the trial
itself, the suppression hearing implicates all the policies that
require that the trial be public. For this reason, I would be loath
to hold that a State could conduct a pretrial
Jackson v.
Denno hearing in private over the
objection of the
defendant. And for this same reason, the public's interest in the
openness of judicial proceedings is implicated fully when it is the
accused who seeks to exclude the public from such a hearing.
Accordingly, I conclude that the Sixth and Fourteenth Amendments
prohibit a State from conducting a pretrial suppression hearing in
private, even at the request of the accused, unless full and fair
consideration is first given to the public's interest, protected by
the Amendments, in open trials. [
Footnote 4/15]
The Court holds, however, that, even assuming the Sixth and
Fourteenth Amendments could be viewed as embodying a public right
of access to trials, there was no common law right in members of
the public to attend preliminary proceedings.
But I have not said that there was. I have demonstrated that
there was a right to attend trials. And I have said that, because
of the critical importance of suppression hearings to our systems
of criminal justice -- as well as because of the close similarity
in form of a suppression hearing to a full
Page 443 U. S. 437
trial -- for purposes of the Sixth Amendment public trial
provision the pretrial suppression hearing at issue in this case
must be considered part of the trial.
It is significant that the sources upon which the Court relies
do not concern suppression hearings. They concern hearings to
determine probable cause to bind a defendant over for trial.
E.g., Indictable Offences Act, 11 & 12 Vict., ch. 42,
§§ 17, 19 (1848); Cal.Penal Code Ann. § 868 (West Supp. 1979). Such
proceedings are not critical to the criminal justice system in the
way the "suppression of evidence" hearing is, and they are not
close equivalents of the trial itself in form. The fact that such
proceedings might have been held in private at common law in
England or in this country does not detract from my conclusion that
pretrial suppression hearings should not be, any more than does the
fact that grand juries -- or preliminary proceedings such as
coroner's inquests at common law -- were and are secret.
Indeed, the modern suppression hearing, unknown at common law,
is a type of objection to evidence such as took place at common
law, and as takes place today in the case of nonconstitutional
objections, in open court during trial. There is no federal
requirement that States conduct suppression hearings prior to
trial.
See Pinto v. Pierce, 389 U. S.
31,
389 U. S. 32
(1967). I assume that, if such an objection were made during trial,
it would be made in open court during the course of the public
trial. I am unwilling to allow the temporal factor to control
whether the public will be able to have access to the
proceeding.
The Court also must believe that not even the accused has a
right to a public pretrial suppression hearing. For if, as the
Court assumes for the sake of argument, there is a public right to
attend trials that the Sixth Amendment protects, it is difficult to
see why, if that right does not extend to preliminary proceedings
insofar as the public is concerned it should extend to such
proceedings insofar as the defendant
Page 443 U. S. 438
is concerned. And many of the precedents upon which the Court
relies denied a public preliminary proceeding to the accused, as
well as to the public.
E.g., Indictable Offences Act, 11
& 12 Vict., ch. 42, § 17 (1848).
Alternatively, the Court finds that the right to a public trial
is the right of the accused only, and that the public has no
enforceable interest in public trials. Under this analysis, the
defendant -- so long as the prosecution and the judge agree -- may
surely close a full trial on the merits as well as a pretrial
suppression hearing. The Court's analysis would thus allow closed
trials as well without providing for any standards to insure that
"the public['s] . . . right to be informed as to what occurs in its
courts" has been protected.
Estes v. Texas, 381 U.S. at
381 U. S.
541.
I, for one, am unwilling to allow trials and suppression
hearings to be closed with no way to ensure that the public
interest is protected. Unlike the other provisions of the Sixth
Amendment, the public trial interest cannot adequately be protected
by the prosecutor and judge in conjunction, or connivance, with the
defendant. The specter of a trial or suppression hearing where a
defendant of the same political party as the prosecutor and the
judge -- both of whom are elected officials perhaps beholden to the
very defendant they are to try -- obtains closure of the proceeding
without any consideration for the substantial public interest at
stake is sufficiently real to cause me to reject the Court's
suggestion that the parties be given complete discretion to dispose
of the public's interest as they see fit. The decision of the
parties to close a proceeding in such a circumstance, followed by
suppression of vital evidence or acquittal by the bench, destroys
the appearance of justice and undermines confidence in the judicial
system in a way no subsequent provision of transcript might remedy.
But even where no connivance occurs, prosecutors and judges may
have their own reasons for preferring a closed proceeding. And a
prosecutor, who seeks to obtain a conviction
Page 443 U. S. 439
free from error, and a judge who seeks the same while protecting
the defendant's rights, may lack incentive to assert some notion of
the public interest in the face of a motion by a criminal defendant
to close a trial.
III
At the same time, I do not deny that the publication of
information learned in an open proceeding may harm irreparably,
under certain circumstances, the ability of a defendant to obtain a
fair trial. This is especially true in the context of a pretrial
hearing, where disclosure of information, determined to be
inadmissible at trial, may severely affect a defendant's rights.
Although the Sixth Amendment's public trial provision establishes a
strong presumption in favor of open proceedings, it does not
require that all proceedings be held in open court when to do so
would deprive a defendant of a fair trial.
No court has held that the Sixth Amendment imposes an absolute
requirement that courts be open at all times. On the contrary,
courts on both the state and federal levels have recognized
exceptions to the public trial requirement even when it is the
accused who objects to the exclusion of the public or a portion
thereof. Thus, it is clear that the court may exclude unruly
spectators or limit the number of spectators. And in both
Estes
v. Texas, 381 U. S. 532
(1965), and
Sheppard v. Maxwell, 384 U.
S. 333 (1966), this Court held that a court may place
restrictions on the access of the electronic media in particular,
and certain types of newsgathering in general, inside the
courthouse doors. There are a number of instances where the courts
have gone further, and upheld the exclusion of the public for
limited periods of time. Examples are when it was necessary to
preserve the confidentiality of the Government's "skyjacker
profile,"
United States v. Bell, 464 F.2d 667 (CA2),
cert. denied, 409 U.S. 991 (1972), and when it was
necessary to effectuate Congress' determination
Page 443 U. S. 440
that the confidentiality of communications intercepted under
Title III of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. § 2510
et seq., be preserved prior to the
determination that such communications were lawfully intercepted.
United States v. Cianfrani, 573 F.2d 835 (CA3 1978).
I need express no opinion on the correctness of such decisions.
But they illustrate that courts have been willing to permit limited
exceptions to the principle of publicity where necessary to protect
some other interest. Because of the importance we attach to a fair
trial, it is clear that whatever restrictions on access the Sixth
Amendment may prohibit in another context, it does not prevent a
trial court from restricting access to a pretrial suppression
hearing where such restriction is necessary in order to ensure that
a defendant not be denied a fair trial as a result of prejudicial
publicity flowing from that hearing. [
Footnote 4/16]
See Branzburg v. Hayes,
408 U. S. 665,
408 U. S. 685
(1972).
At the same time, however, the public's interest in maintaining
open courts requires that any exception to the rule be narrowly
drawn. It comports with the Sixth Amendment to require an accused
who seeks closure to establish that it is strictly and inescapably
necessary in order to protect the fair trial guarantee. That
finding must be made in the first instance, of course, by the trial
court. I cannot detail here
Page 443 U. S. 441
all the factors to be taken into account in evaluating the
defendant's closure request, nor can I predict how the balance
should be struck in every hypothetical case. The accused who seeks
closure should establish, however, at a minimum, the following:
First, he should provide an adequate basis to support a finding
that there is a substantial probability that irreparable damage to
his fair trial right will result from conducting the proceeding in
public. This showing will depend on the facts. But I think it
requires evidence of the nature and extent of the publicity prior
to the motion to close in order to establish a basis for the trial
court to conclude that further coverage will result in the harm
sought to be prevented. In most cases, this will involve a showing
of the impact on the jury pool. This seldom can be measured with
exactness, but information relating to the size of the pool, the
extent of media coverage in the pertinent locality, and the ease
with which change of venire can be accomplished or searching
voir dire instituted to protect against prejudice, would
be relevant. The court also should consider the extent to which the
information sought to be suppressed is already known to the public,
and the extent to which publication of such information, if
unknown, would have an impact in the context of the publicity that
has preceded the motion to close.
Second, the accused should show a substantial probability that
alternatives to closure will not protect adequately his right to a
fair trial. One may suggest numerous alternatives, but I think the
following should be considered: continuance, severance, change of
venue, change of venire,
voir dire, peremptory challenges,
sequestration, and admonition of the jury. ABA Project on Standards
for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, p.
16 (App. Draft 1978).
See Nebraska Press Assn. v. Stuart,
427 U.S. at
427 U. S.
562-565;
Sheppard v. Maxwell, 384 U.S. at
384 U. S. 354
n. 9,
384 U. S.
358-362. One or more of these alternatives may
adequately protect the accused's
Page 443 U. S. 442
interests and relieve the court of any need to close the
proceeding in advance. [
Footnote
4/17]
I note too that, for suppression hearings, alternatives to
closure exist that would enable the public to attend but that would
limit dissemination of the information sought to be suppressed. At
most such hearings, the issues concern not so much the contents of
a confession or of a wiretap, or the nature of the evidence seized,
but the circumstances under which the prosecution obtained this
material. Many hearings, with care, could be conducted in public
with little risk that prejudicial information would be
disclosed.
Third, the accused should demonstrate that there is a
substantial probability that closure will be effective in
protecting against the perceived harm. Where significantly
prejudicial information already has been made public, there might
well be little justification for closing a pretrial hearing in
order to prevent only the disclosure of details.
I emphasize that the trial court should begin with the
assumption that the Sixth Amendment requires that a pretrial
Page 443 U. S. 443
suppression hearing be conducted in open court unless a
defendant carries his burden to demonstrate a strict and
inescapable necessity for closure. There should be a need for a
representative of the public to demonstrate that the public
interest is legitimate or genuine, or that the public seeks access
out of something more than mere curiosity. Trials and suppression
hearings, by their nature, are events of legitimate public
interest, and the public need demonstrate no threshold of
respectability in order to attend. This is not to say, of course,
that a court should not take into account heightened public
interest in cases of unusual importance to the community or to the
public at large. The prosecution of an important officeholder could
intensify public interest in observing the proceedings, and the
court should take that interest into account where it is warranted.
It is also true, however, that, as the public interest intensifies,
so does the potential for prejudice.
As a rule, the right of the accused to a fair trial is
compatible with the interest of the public in maintaining the
publicity of pretrial proceedings. "In the overwhelming majority of
criminal trials, pretrial publicity presents few unmanageable
threats to this important right."
Nebraska Press Assn. v.
Stuart, 427 U.S. at
427 U. S. 551.
Our cases
"cannot be made to stand for the proposition that juror exposure
to information about a state defendant's prior convictions or to
news accounts of the crime with which he is charged alone
presumptively deprives the defendant of due process."
Murphy v. Florida, 421 U. S. 794,
421 U. S. 799
(1975). A high level of publicity is not necessarily inconsistent
with the ability of the defendant to obtain a fair trial where the
publicity has been largely factual in nature,
id. at
421 U. S. 802;
Beck v. Washington, 369 U. S. 541,
369 U. S.
542-545,
369 U. S.
557-558 (1962), or where it abated some time prior to
trial.
See Stroble v. California, 343 U.
S. 181,
343 U. S.
191-194 (1952).
In those cases where a court has found publicity sufficiently
prejudicial as to warrant reversal on due process grounds, the
publicity went far beyond the normal bounds of
Page 443 U. S. 444
coverage. In
Irvin v. Dowd, 366 U.
S. 717 (1961), for example, there was a barrage of
adverse publicity about the defendant's offer to plead guilty and
his confession to several murders and burglaries. In
Rideau v.
Louisiana, 373 U. S. 723
(1963), there was live pretrial television coverage of the
defendant's confession. And in
Estes v. Texas,
381 U. S. 532
(1965), and
Sheppard v. Maxwell, 384 U.
S. 333 (1966), the press, and especially the electronic
media, intruded to such an extent on the courtroom proceedings that
all semblance of decorum and sobriety was lost.
See Nebraska
Press Assn. v. Stuart, 427 U.S. at
427 U. S.
551-556;
Murphy v. Florida, 421 U.S. at
421 U. S.
798-799.
But "[c]ases such as these are relatively rare."
Nebraska
Press, 427 U.S. at
427 U. S. 554.
All our decisions in this area, "[t]aken together, . . demonstrate
that pretrial publicity -- even pervasive, adverse publicity --
does not inevitably lead to an unfair trial."
Ibid. These
cases provide the background against which a trial judge must
evaluate a motion to close a hearing on the ground that an open
hearing will result in publicity so prejudicial that a defendant
will be deprived of his due process right to a fair trial. In
Stroble, Murphy, and
Beck, of course, the
sharpened vision of hindsight helped the Court to see that the
trial had been fair notwithstanding the publicity. The trial judge
faced with a closure motion has the more difficult task of looking
into the future. I do not mean to suggest that only in the
egregious circumstances of cases such as
Estes and
Sheppard would closure be permissible. But, to some
extent, the harm that the defendant fears from publicity is also
speculative.
If, after considering the essential factors, the trial court
determines that the accused has carried his burden of establishing
that closure is necessary, the Sixth Amendment is no barrier to
reasonable restrictions on public access designed to meet that
need. Any restrictions imposed, however, should extend no further
than the circumstances reasonably require.
Page 443 U. S. 445
Thus, it might well be possible to exclude the public from only
those portions of the proceeding at which the prejudicial
information would be disclosed, while admitting to other portions
where the information the accused seeks to suppress would not be
revealed.
United States v. Cianfrani, 573 F.2d at 854.
Further, closure should be temporary, in that the court should
ensure that an accurate record is made of those proceedings held
in camera and that the public is permitted proper access
to the record as soon as the threat to the defendant's fair trial
right has passed.
I thus reject the suggestion that the defendant alone may
determine when closure should occur. I also reject any notion that
the decision whether to permit closure should be in the hands of
the prosecutor on the theory that he is the representative of the
public's interest. It is, in part, the public's interest in
observing the conduct of the prosecutor, and the police with whom
he is closely associated, that the public trial provision serves.
To cloak his own actions or those of his associates from public
scrutiny, a prosecutor thus may choose to close a hearing where the
facts do not warrant it. Moreover, prosecutors often are elected,
and the public has a strong interest, as noted, in observing the
conduct of elected officials. In addition, the prosecutor may fear
reversal on appeal if he too strenuously resists the motion of a
defendant to close a hearing. Conversely, a prosecutor may wrap in
the mantle of the public interest his desire to disseminate
prejudicial information about an accused prior to trial, and so
resist a motion to close where the circumstances warrant some
restrictions on access. I thus am unwilling to commit to the
discretion of the prosecutor, against whose own misconduct or
incompetence the public trial requirement is designed in part to
protect, the decision as to whether an accused's motion to close
will be granted.
As a final safeguard, I would conclude that any person removed
from a court should be given a reasonable opportunity to
Page 443 U. S. 446
state his objections prior to the effectiveness of the order.
This opportunity need not take the form of an evidentiary hearing;
it need not encompass extended legal argument that results in
delay; and the public need not be given prior notice that a closure
order will be considered at a given time and place. But where a
member of the public contemporaneously objects, the court should
provide a reasonable opportunity to that person to state his
objection. Finally, the court should state on the record its
findings concerning the need for closure, so that a reviewing court
may be adequately informed.
IV
The Sixth Amendment, in establishing the public's right of
access to a criminal trial and a pretrial proceeding, also fixes
the rights of the press in this regard. Petitioner, as a newspaper
publisher, enjoys the same right of access to the
Jackson v.
Denno hearing at issue in this case as does the general
public. And what petitioner sees and hears in the courtroom it may,
like any other citizen, publish or report consistent with the First
Amendment. "Of course, there is nothing that proscribes the press
from reporting events that transpire in the courtroom."
Sheppard v. Maxwell, 384 U.S. at
384 U. S.
362-363. Reporters for newspaper, television, and radio
"are entitled to the same rights as the general public" to have
access to the courtroom,
Estes v. Texas, 381 U.S. at
381 U. S. 540,
where they "are always present if they wish to be and are plainly
free to report whatever occurs in open court through their
respective media."
Id. at
381 U. S.
541-542. "[O]nce a public hearing ha[s] been held, what
transpired there could not be subject to prior restraint."
Nebraska Press Assn. v. Stuart, 427 U.S. at
427 U. S.
568.
Petitioner acknowledges that it seeks no greater rights than
those due the general public. But it argues that, the Sixth
Amendment aside, the First Amendment protects the free flow of
information about judicial proceedings, and that this flow may not
be cut off without meeting the standards required to
Page 443 U. S. 447
justify the imposition of a prior restraint under the First
Amendment. Specifically, petitioner argues that the First Amendment
prohibits closure of a pretrial proceeding except in accord with
the standards established in
Nebraska Press and only after
notice and hearing and a stay pending appeal.
I do not agree. As I have noted, this case involves no restraint
upon publication or upon comment about information already in the
possession of the public or the press. It involves an issue of
access to a judicial proceeding. To the extent the Constitution
protects a right of public access to the proceeding, the standards
enunciated under the Sixth Amendment suffice to protect that right.
I therefore need not reach the issue of First Amendment access.
V
I return to the exclusion order entered by Judge DePasquale. It
is clear that the judge entered the order because of his apparent
concern for the fair trial rights of the defendants and his
suspicion that those rights would be threatened if the hearing were
public. I acknowledge that concern, but I conclude that the order
was not justified on the facts of this case.
There was no factual basis upon which the court could conclude
that a substantial probability existed that an open proceeding
would result in harm to the defendants' rights to a fair trial. The
coverage in petitioner's newspapers of Clapp's disappearance and
the subsequent arrest and prosecution of Greathouse and Jones was
circumspect. Stories appeared on only 7 of the 18 days between July
20 and August 6. All coverage ceased on August 6, and did not
resume until after the suppression hearing three months later. The
stories that appeared were largely factual in nature. The reporting
was restrained and free from editorializing or sensationalism.
There was no screaming headline, no lurid photograph, no front-page
overemphasis. The stories were of moderate length and were linked
to factual developments in the case. And
Page 443 U. S. 448
petitioner's newspapers had only a small circulation in Seneca
County.
See n 1,
ante, of the Court's opinion.
In addition, counsel for respondents stated that the only fact
not known to petitioner prior to the suppression hearing was the
content of the confessions. Tr. of Oral Arg. 40. Prior to the
hearing, petitioner had learned of the confessions and of the
existence and nature of the physical evidence sought to be
suppressed. It is thus not at all likely that the openness of the
suppression hearing would have resulted in the divulgence of
additional information that would have made it more probable that
Greathouse and Jones would be denied a fair trial.
On this record, I cannot conclude, as a matter of law, that
there was a sufficient showing to establish the strict and
inescapable necessity that supports an exclusion order. The
circumstances also would not have justified a holding by the trial
court that there was substantial probability that alternatives to
closure would not have sufficed to protect the rights of the
accused.
It has been said that publicity "is the soul of justice." J.
Bentham, A Treatise on Judicial Evidence 67 (1825). And in many
ways, it is: open judicial processes, especially in the criminal
field, protect against judicial, prosecutorial, and police abuse;
provide a means for citizens to obtain information about the
criminal justice system and the performance of public officials;
and safeguard the integrity of the courts. Publicity is essential
to the preservation of public confidence in the rule of law and in
the operation of courts. Only in rare circumstances does this
principle clash with the rights of the criminal defendant to a fair
trial, so as to justify exclusion. The Sixth and Fourteenth
Amendments require that the States take care to determine that
those circumstances exist before excluding the public from a
hearing to which it otherwise is entitled to come freely. Those
circumstances did not exist in this case.
[
Footnote 4/1]
Two of the six judges who heard the case in the New York Court
of Appeals dissented. They would have found the order entered by
the County Court to be of the type of prior restraint prohibited by
Nebraska Press Assn. v. Stuart, 427 U.
S. 539 (1976), and would have affirmed the Appellate
Division on the ground that the evidence did not support entry of
the order. 43 N.Y.2d 370, 382, 372 N.E.2d 544, 551.
[
Footnote 4/2]
Although I am dealing here with access under the Sixth
Amendment, it is worthy of note that this Court's decisions
emphasizing the protection afforded reporting of judicial
proceedings under the First Amendment also point up the grave
concern that information relating to the administration of criminal
justice be widely available. In
Landmark Communications, Inc.
v. Virginia, 435 U. S. 829
(1978), for example, the Court noted that "the operation of the
judicial system itself . . . is a matter of public interest,"
id. at
435 U. S. 839,
and that reporting judicial disciplinary proceedings "lies near the
core of the First Amendment."
Id. at
435 U. S. 838.
And in
Nebraska Press Assn. v. Stuart, 427 U.S. at
427 U. S. 559,
the Court recognized that "[t]ruthful reports of public judicial
proceedings have been afforded special protection against
subsequent punishment" because of the importance of free commentary
about the conduct of the criminal justice system. Any question of
access under the Sixth Amendment aside, the "extraordinary
protections afforded by the First Amendment" with respect to the
reporting of judicial proceedings,
id. at
427 U. S. 560,
indicate the importance attached to making the public aware of the
business of the courts.
"The administration of the law is not the problem of the judge
or prosecuting attorney alone, but necessitates the active
cooperation of an enlightened public."
Wood v. Georgia, 370 U. S. 375,
370 U. S. 391
(1962).
See Bridges v. California, 314 U.
S. 252 (1941);
Pennekamp v. Florida,
328 U. S. 331
(1946).
[
Footnote 4/3]
Forty-eight of the fifty States protect the right to a public
trial in one way or another. Forty-five have constitutional
provisions specifically guaranteeing the right: Ala.Const., Art. 1,
§ 6; Alaska Const., Art. I, § 11; Ariz.Const., Art. 2, §§ 11, 24;
Ark.Const., Art. 2, § 10; Cal.Const., Art. 1, § 15; Colo.Const.,
Art. 2, § 16; Conn.Const., Art. 1, § 8; Del.Const., Art. 1, §§ 7,
9; Fla.Const., Art. 1, § 16; Ga.Const., Art. 1, § 1, 11;
Haw.Const., Art. 1, § 11; Idaho Const., Art. 1, § 13; Ill.Const.,
Art. 1, § 8; Ind.Const., Art. 1, §§ 12, 13; Iowa Const., Art. 1, §
10; Kan.Const., Bill of Rights, § 10; Ky.Const., Bill of Rights, §§
11, 14; La.Const., Art. 1, §§ 16, 22; Me.Const., Art. 1, § 6;
Mich.Const., Art. 1, § 20; Minn.Const., Art. 1, § 6; Miss.Const.,
Art. 3, §§ 24, 26; Mo.Const., Art. 1, § 18(a); Mont.Const., Art. 2,
§ 24; Neb.Const., Art. 1, § 11; N.J.Const., Art. 1, � 10;
N.M.Const., Art. 2, § 14; N.C.Const., Art. 1, §§ 18, 24;
N.D.Const., Art. 1, §§ 13, 22; Ohio Const., Art. 1, §§ 10, 16;
Okla.Const., Art. 2, § 20; Ore.Const., Art. 1, § 11; Pa.Const.,
Art. 1, §§ 9, 11; R.I.Const., Art. 1, § 10; S.C.Const., Art. 1, §§
9, 14; S.D.Const., Art. 6, §§ 7, 20; Tenn.Const., Art. 1, §§ 9, 17;
Tex.Const., Art. 1, § 10; Utah Const., Art. 1, §§ 11, 12;
Vt.Const., Ch. 1, Art. 10th; Va.Const., Art. 1, § 8; Wash.Const.,
Art. 1, § 22; W.Va.Const., Art. 3, §§ 14, 17; Wis.Const., Art. 1, §
7; Wyo.Const., Art. 1, § 8.
In addition, New Hampshire has held that the Due Process Clause
of its Constitution, Pt. 1, Art. 15, requires that criminal trials
be held in public.
Martineau v. Helgemoe, 117 N.H. 841,
842, 379 A.2d 1040, 1041 (1977). Maryland, by judicial decision,
requires open proceedings.
Dutton v. State, 123 Md. 373,
386-387, 91 A. 417, 422-423 (1914). New York, by statute, provides
for open trials. N.Y.Civil Rights Law, Art. 2, § 12 (McKinney
1976).
Only Massachusetts and Nevada appear to have no state provision
for public trials.
But see Commonwealth v. Marshall, 356
Mass. 432,
253
N.E.2d 333 (1969).
[
Footnote 4/4]
"The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury."
[
Footnote 4/5]
"These words are of great importance, for all Causes ought to be
heard, ordered, and determined before the Judges of the Kings
Courts openly in the Kings Courts, whither all persons may resort;
and in no chambers, or other private places: for the Judges are not
Judges of chambers, but of Courts, and therefore in open Court,
where the parties Councel and Attorneys attend, ought orders,
rules, awards, and Judgments to be made and given, and not in
chambers or other private places. . . . Nay, that Judge that
ordereth or ruleth a Cause in his chamber, though his order or rule
be just, yet offendeth he the Law, (as here it appeareth) because
he doth it not in Court."
[
Footnote 4/6]
See, e.g., T. Smith, De Republica Anglorum 79, 101
(Alston ed.1972), published in 1583, where the author, in
contrasting the English common law with the civil law system of the
Continent, stressed that, in England, all adjudications were open
to the public as a matter of course.
See also Trial of
John Lilburne (1649), reported in 4 How.St.Tr. 1270, 1274
(1816).
[
Footnote 4/7]
Similarly, the Solicitor General, Sir John Hawles, in 1685 in
his Remarks upon Mr. Cornish's Trial, 11 How. St. Tr. 455, 460,
stated:
"The reason that all matters of law are, or ought to be
transacted publicly, is that any person, unconcerned as well as
concerned, may, as
amicus curiae, inform the court better,
if he thinks they are in an error, that justice may be done: and
the reason that all trials are public is that any person may inform
in point of fact, though not
subpoena'd, that truth may be
discovered in civil as well as criminal matters."
[
Footnote 4/8]
The continuing development in England of the common law notion
of publicity during the years since the founding of our own Nation
casts light upon the function of publicity in our system of
justice. For example, in a series of cases establishing a privilege
for the reporting of judicial proceedings, the courts
recognized:
"Though the publication of such proceedings may be to the
disadvantage of the particular individual concerned, yet it is of
vast importance to the public that the proceedings of Courts of
Justice should be universally known. The general advantage to the
country in having these proceedings made public, more than
counterbalances the inconveniences to the private persons whose
conduct may be the subject of such proceedings."
King v. Wright, 8 D. & E. 293, 298, 101 Eng.Rep.
1396, 1399 (K.B. 1799).
See Davison v. Duncan, 7 El. &
Bl. 229, 230-231, 119 Eng.Rep. 1233, 1234 (Q.B. 1857);
Wason v.
Walter, 4 L.R. 73, 88 (Q.B. 1868).
Important for my purposes is the decision in
Daubney v.
Cooper, 10 B. & C. 237, 109 Eng.Rep. 438 (K.B. 1829).
There the court upheld a verdict for damages in an action by a
spectator, who had been ejected from a criminal proceeding, against
the magistrate who had ejected him. The court stated:
"[I]t is one of the essential qualities of a court of justice
that its proceedings should be public, and that all parties who may
be desirous of hearing what is going on, if there be room in the
place for that purpose, -- provided they do not interrupt the
proceedings, and provided there is no specific reason why they
should be removed, -- have a right to be present for the purpose of
hearing what is going on."
Id. at 240, 109 Eng.Rep. at 440.
See also Scott v.
Scott, [1913] A.C. 417, 438-439 (Haldane, L.C.), 440-441 (Earl
of Halsbury).
[
Footnote 4/9]
Although a number of States followed the language of Virginia's
Declaration, only Vermont copied the Pennsylvania emendation by
adding the word "public" to the speedy trial provision. Vt.Const.,
Declaration of Rights § X (1777), quoted in 1 Schwartz 323. Once
again, however, there is no evidence that, by so doing, Vermont
intended to depart from the common law practice of holding court in
public. Indeed, the Vermont Declaration, adopted by the
revolutionary legislature in haste, was "virtually [a] verbatim
repetitio[n] of the relevant Pennsylvania" article. 1 Schwartz 319.
It is thus doubtful that, by adding the word "public," Vermont, any
more than Pennsylvania, intended to alter existing practice.
[
Footnote 4/10]
Nearly every State that has considered the issue has recognized
that the public has a strong interest in maintaining open trials.
Most of these cases have involved state constitutional provisions
modeled on the Sixth Amendment in that the public trial right is
phrased in terms of a guarantee to the accused.
See, e.g.,
Jackson v. Mobley, 157 Ala. 408, 411-412, 47 So. 590, 592
(1908);
Commercial Printing Co. v. Lee, 262 Ark. 87,
93-96,
553 S.W.2d
270, 273-274 (1977);
Lincoln v. Denver Post, 31
Colo.App. 283, 285-286,
501 P.2d
152, 154 (1972);
State ex rel. Gore Newspapers Co. v.
Tyson, 313 So. 2d 777, 785-788 (Fla.App. 1975);
Gannett
Pacific Corp. v. Richardson, 59 Haw. 224, 230-231,
580 P.2d 49, 55
(1978);
State v. Beaudoin, 386 A.2d
731, 733 (Me.1978);
Cox v. State, 3 Md.App. 136,
139-140,
238 A.2d 157, 158-159 (1968);
State v. Schmit, 273
Minn. 78, 86-88,
139 N.W.2d
800, 806-807 (1966);
State v. Keeler, 52 Mont. 205,
218-219, 156 P. 1080, 1083-1084 (1916);
Keene Publishing Corp.
v. Keene District Court, 117 N.H. 959, 962-963, 380 A.2d 261,
263-264 (1977);
State v. Allen, 73 N.J. 132, 157-160,
373 A.2d
377, 389-390 (1977);
Neal v. State, 86 Okla.Cr. 283,
289,
192
P.2d 294,
297
(1948);
State v. Holm, 67 Wyo. 360, 382-385,
224 P.2d 500,
508 509 (1950).
Several States have recognized such an interest under
constitutional provisions establishing open courts.
E.g., State
v. White, 97 Ariz.196, 198,
398 P.2d 903,
904 (1965);
Smith v. State, 317
A.2d 20, 23-24 (Del.1974);
Johnson v.
Simpson, 433
S.W.2d 644, 646 (Ky.1968);
Brown v. State, 222 Miss.
863, 869,
77 So. 2d
694, 696 (1955);
In re Edens, 290 N.C. 299, 306,
226 S.E.2d
5, 9-10 (1976);
E. W. Scripps Co. v. Fulton, 100 Ohio
App. 157, 16169, 125 N.E.2d 896, 899-904 (1955);
State ex rel.
Varney v. Ellis, 149 W.Va. 522, 523-524,
142 S.E.2d
63, 65 (1965).
Massachusetts appears to have no case precisely in point. But in
Cowley v. Pulsifer, 137 Mass. 392 (1884), the Supreme
Judicial Court, in an opinion by Mr. Justice Holmes, stated that
the chief advantage of permitting a privilege for publication of
reports of judicial proceedings "is the security which publicity
gives for the proper administration of justice."
Id. at
394. The court continued:
"[This] privilege and the access of the public to the courts
stand in reason upon common ground. . . . It is desirable that the
trial of causes should take place under the public eye, not because
the controversies of one citizen with another are of public
concern, but because it is of the highest moment that those who
administer justice should always act under the sense of public
responsibility, and that every citizen should be able to satisfy
himself with his own eyes as to the mode in which a public duty is
performed."
Ibid.
[
Footnote 4/11]
See, e.g., United States v. Clark, 475 F.2d 240,
246-247 (CA2 1973);
Stamicarbon, N.V. v. American Cyanamid
Co., 506 F.2d 532, 540-542 (CA2 1974);
United States v.
Cianfrani, 573 F.2d 835, 852-854 (CA3 1978);
Lewis v.
Peyton, 352 F.2d 791, 792 (CA4 1965).
The Court today cites no case where the public has been totally
excluded from all of a trial or all of a pretrial suppression
hearing.
See ante at
443 U. S. 388
n.19. Indeed, in almost every case that the Court cites, no such
general exclusion was permitted:
In Geise v. United
States, 262 F.2d 151, 155 (CA9 1958), for example, the press,
members of the bar, and relatives and friends of parties and the
witnesses were allowed to remain. Similarly, in
United States
ex rel. Orlando v. Fay, 350 F.2d 967, 970 (CA2 1965), the
press and members of the bar were admitted at all times. In
State v. Croak, 167 La. 92, 94-95, 118 So. 703, 704
(1928), a fair-sized audience composed of members of the public was
always present. The court in
Beauchamp v. Cahill, 297 Ky.
505, 508, 180 S.W.2d 423, 424 (1944), though it recognized that the
trial court could exclude limited classes of spectators in certain
circumstances, held that that court could not exclude a "reasonable
portion of the public" who wanted to attend, and it disapproved the
limited exclusion that did occur. In
State v. Callahan,
100 Minn. 63, 110 N.W. 342 (1907), and
Hogan v. State, 191
Ark. 437, 86 S.W.2d 931 (1935), the Court does point to cases where
a court upheld an exclusion of all the public, though even there
the exclusions were for strictly limited periods of time. Those
exclusions were over the objections of the defendants, and they
surely are questionable law today, not only under the Sixth
Amendment but under state law as well.
See State v.
Schmit, 273 Minn. at 86-88, 139 N.W.2d at 805-807;
Commercial Printing Co. v. Lee, 262 Ark. at 93-96, 553
S.W.2d at 273-274.
Similarly, though the Court cites a number of state statutory
provisions that it says contain limitations on public trials, it
cites no cases decided under those provisions excluding all the
public and the press from trials or suppression hearings. If any
such cases exist, which is doubtful, they are few indeed. It
appears, rather, that such statutes have been interpreted to permit
limited exclusion of certain groups of spectators from trial, but
seldom applied so as to result in blanket exclusion of the public
and press. For example, in
Reeves v. State, 264 Ala. 476,
483,
88 So. 2d
561, 567 (1956), the court, in applying the Alabama provision
cited by the Court,
ante at
443 U. S. 388
n.19, noted that the trial court had not excluded, among others,
"members of the press, radio, television or other newsgathering
services, . . . [and] members of the bar."
Accord, Ex parte
Rudolph, 276 Ala. 392, 393,
162 So. 2d
486, 487 (1964). Similarly, in applying the Georgia statute
cited by the Court, the courts of that State have not excluded,
among others, members of the press and of the bar.
E.g., Moore
v. State, 151 Ga. 648, 651-652, 658-659, 108 S.E. 47, 49, 52
(1921). Indeed, in
Moore, the trial court allowed the
press to attend as one of the "parties at interest" not excludable.
Id. at 651, 108 S.E. at 49. And in upholding the
constitutionality of the Massachusetts statute permitting exclusion
in certain cases involving sex crimes, the Supreme Judicial Court
noted that the press had not been excluded under the statute, and
that it therefore need not reach the constitutionality of the
statute in circumstances where the press was excluded, "even if the
statute could be interpreted as permitting such exclusion" of the
press.
Commonwealth v. Blondin, 324 Mass. 564, 572, 87
N.E.2d 455, 460 (1949). There is no evidence that, under any of the
other provisions cited by the Court, tribunals have excluded all
members of the public, including the press, from a trial or
suppression proceeding.
The Court in
In re Oliver recognized that, even though
some cases up to that time had allowed limited departures from
publicity, no court had gone so far as to sanction exclusion of the
press. 333 U.S. at
333 U. S. 272
n. 29. Since that time, only the New York courts in this case, and
perhaps some isolated others, have departed from this tradition in
criminal cases. And although some commentators have criticized the
Sixth Amendment approach to establishing a public right of access,
they have gone on to find that right rooted in some other provision
of the Constitution.
E.g., Note, The Right to Attend
Criminal Hearings, 78 Colum.L.Rev. 1308, 1326-1331 (1978) (public
access right derived from combination of the First and Sixth
Amendments). Even Radin, whose ideas in this area Professor Wigmore
described as "far-fetched," 6 Wigmore § 1834, though he criticized
public access, would not have excluded the press and selected
members of the public from any trial. Radin, The Right to a Public
Trial, 6 Temple L.Q. 381, 394-395 (1932).
[
Footnote 4/12]
See cases cited in
443
U.S. 368fn4/10|>n. 10,
supra. For example, in
Commercial Printing Co. v. Lee, 262 Ark. 87,
553 S.W.2d
270 (1977), the Supreme Court of Arkansas held that the
exclusion of the public from the
voir dire phase of a
criminal trial violated the State's public trial constitutional
provision, even though it, like the Sixth Amendment, literally read
in favor of only the accused. The court found that members of the
public have a strong interest in observing criminal proceedings,
inasmuch as they involve crimes against society. And it added that,
since courthouses, prosecutors, judges, and often defense attorneys
are paid for with public funds, the public
"has every right to ascertain by personal observation whether
its officials are properly carrying out their duties in responsibly
and capably administering justice, and it would require unusual
circumstances for this right to be held subordinate to the
contention of a defendant that he is prejudiced by a public trial
(or any part thereof)."
Id. at 95, 553 S.W.2d at 274.
[
Footnote 4/13]
The American Bar Association Standards adopt the view that the
public has a strong interest in maintaining the openness of
criminal trials, and that the Sixth Amendment protects that
interest:
"The sixth amendment speaks in terms of the right of the accused
to a public trial, but this right does not belong solely to the
accused to assert or forgo as he or she desires. . . . The
defendant's interest, primarily, is to ensure fair treatment in his
or her particular case. While the public's more generalized
interest in open trials includes a concern for justice to
individual defendants, it goes beyond that. The transcendent reason
for public trials is to ensure efficiency, competence, and
integrity in the overall operation of the judicial system. Thus,
the defendant's willingness to waive the right to a public trial in
a criminal case cannot be the deciding factor. . . . It is just as
important to the public to guard against undue favoritism or
leniency as to guard against undue harshness or
discrimination."
ABA Project on Standards for Criminal Justice, Fair Trial and
Free Press, Standard 8-3.2, p. 15 (App. Draft 1978). (Footnotes
omitted.)
[
Footnote 4/14]
In 1976, in the Supreme Court for the city of New York, 89.7% of
all criminal cases were terminated by dismissal (25.6%) or by plea
of guilty (64.1%). N.Y.Leg.Doc. No. 90, Judicial Conference of the
State of New York, 22d Annual Report 52 (1977). In the Supreme
Courts and County Courts outside New York City, 93.4% of the
criminal cases were disposed of by dismissal (18.9%) or by plea of
guilty (74.5%).
Id. at 56.
As noted, these statistics are characteristic of the criminal
justice system across the country.
See generally National
Institute of Law Enforcement and Criminal Justice, Law Enforcement
Assistance Administration, Plea Bargaining in the United States,
App. A (1978).
[
Footnote 4/15]
The ABA Standards take the position that pretrial suppression
hearings are within the scope of the Sixth Amendment's public trial
provision. ABA Project on Standards for Criminal Justice, Fair
Trial and Free Press, Standard 8-3.2, p. 15, and n. 1 (App.Draft
1978).
[
Footnote 4/16]
This observation is confined to cases where the defendant seeks
to close the hearing on the ground that his fair trial rights will
be infringed by an open proceeding. I express no opinion as to
whether or when a proceeding subject to the command of the Sixth
Amendment may be closed over the objection of the defendant. Nor
need I determine what interests other than those of the defendant
in a fair trial may support all order of closure. My comments are
also confined to rulings within the ambit of the Sixth Amendment's
public trial provision. I thus express no opinion about
proceedings, such as those in juvenile court, not otherwise subject
to the requirement of the Sixth Amendment.
See McKeiver v.
Pennsylvania, 403 U. S. 528,
403 U. S.
540-541 (1971) (plurality opinion.)
[
Footnote 4/17]
The Court suggests that the public's interest will be served
adequately by permitting delayed access to the transcript of the
closed proceeding once the danger to the accused's fair trial right
has dissipated. A transcript, however, does not always adequately
substitute for presence at the proceeding itself. Also, the
inherent delay may defeat the purpose of the public trial
requirement. Later events may crowd news of yesterday's proceeding
out of the public view.
"As a practical matter . . . the element of time is not
unimportant if press coverage is to fulfill its traditional
function of bringing news to the public promptly."
Nebraska Press Assn. v. Stuart, 427 U.S. at
427 U. S. 561.
Public access is restricted precisely at the time when public
interest is at its height.
Bridges v. California,
314 U. S. 252,
314 U. S. 268
(1941). Moreover, an important event, such as a judicial election
or the select.ion of a prosecuting attorney, may occur when the
public is ignorant of the details of judicial and prosecutorial
conduct. Finally, although a record is kept for later release, when
the proceeding itself is kept secret, it is impossible to know what
it would have been like had the pressure of publicity been brought
to bear on the parties during the proceeding itself.