*1 CO., DePASQUALE, GANNETT INC. COUNTY COURT et OF COUNTY, JUDGE SENECA N. Y., al. Argued July 77-1301.
No. November 1978 Decided *2 Stewart, J., opinion Court, J., delivered the which C. Burger, joined. Powell, Rehnquist, JJ., J., post, Stevens, Burger, C.- *3 p. 394, Powell, J., post, p. 397, J., post, p. and Rehnquist, 403, filed concurring opinions. Blackmun, J., opinion concurring part filed an in and dissenting part, in in which JJ., Brennan, and White, Marshall, joined, post, p. 406.
Robert C. Bernius argued petitioner. the cause for With him on the briefs was John Stuart Smith.
Bernard argued the cause and brief for filed Kobroff respondents.* opinion delivered the of the Court. Justice Stewart
Mr. question presented in this case is whether members an have independent constitutional upon insist pretrial judicial access to a proceeding, though even *Briefs of urging by amici curiae Rudemtine, reversal were filed David Ennis, Bruce J. and Joel M. Gora for the American Civil Liberties Union al.; by Hanson, et Arthur B. Northam, Frank M. and M. Richard Jr., Schmidt, for the Newspaper American al.; Publishers Association et by Anthony Essaye and F. for the Club, City the New York Deadline Chapter Society Sigma of Professional Journalists, Chi, Delta et al. by
Briefs amici curiae Prettyman, were filed E. Barrett Jr., and Erwin Reporters Krasnow for the Committee for Freedom of the Press al'.; by Floyd et Abrams for York Times New Co. agreed all judge have accused, the trial prosecutor, in order assure a fair trial. proceeding closure
I a Roches- Wayne aged residing Henrietta, 42 and Clapp, last ter, July N. in 1976. He was Y., suburb, disappeared July seen on with two male he went when, companions, out on his boat to fish in about miles Seneca Lake, Rochester. The companions two returned the boat day Clapp same away Clapp’s pickup and drove truck. return not with them. When he failed to home July An family reported police. his his absence examination of laced with boat, bulletholes, seemed Clapp indicate Po- had met a violent aboard it. death began They lice then an intensive search for the two men. also began lake-dragging operations attempt to locate Clapp’s body.
The petitioner, Co., publishes Gannett Rochester Inc., two newspapers, morning Democrat & Chronicle and the eve- ning July Times-Union.1 On each first paper carried its
1 The & published Democrat Chronicle Times-Union are Rochester, Rochester, Y. approximately N. in Monroe County, is 40 miles County from the Seneca line. circulation of the newspapers primarily County. in Monroe There however, are some subscribers, County. Seneca when this arose, case the Democrat & Chronicle County daily had a 1,022, giving Seneca circulation of it a share of 9.6% *4 county, Sunday that market in and 1,532, of circulation for a 14.3% share of the market. published daily The Times-Union and edition County. had Markets, but one subscriber in Newspaper Seneca American Inc., 77/78, pp. Circulation 541. The Bureau of the Census esti County’s mated population 34,000. Seneca Department U. S. Commerce, Census, Bureau of the Population Current Reports, Series P-26, 76-32, Population 1977). No. (Aug. Estimates 3 petitioner in Y., 1976 also a Rochester, owned N. television station. And newspapers County there were other in Seneca at that time. See supra, Circulation case, at 522. The 77/78, record in however, con- newspaper tains no concerning coverage Clapp’s evidence disappearance reported the few Each story Clapp’s disappearance. about were police were known and stated that details that then body his theorizing on his boat and Clapp that had been shot body missing. was overboard. Each dumped stated Great- respondents The Times-Union mentioned the names “was identified as house and Jones and said that Greathouse Friday” companions accompanied Clapp one of the two who boat; aged respec- on 16 and 21, said the two were tively; seeking men police noted that were two wife, Accompanying evening and Greathouse’s also 16. story photograph report also con- Clapp. The an appeal police tained for the state assistance.
Michigan police apprehended and the Greathouse, Jones, July woman on 21. This came about when interstate bulletin describing Clapp’s discovery truck led their County, Jackson Mich., by police observed the truck who parked at a local motel. The petitioner’s two Rochester papers July on reported capture. the details stories recounted Michigan how the having after police, ar- rested Jones in a helicopter used park, dogs and tracked down Greathouse and the woman in They some woods. re- Clapp’s cited that truck park. was located near the The stories also stated police County Seneca theorized Clapp was shot with his own pistol, his robbed, body thrown into Seneca Lake. The provided articles background on Clapp’s life, sketched the events surrounding disap- his pearance, and said that New York had issued warrants arrest the three persons. One of the articles reported that County Seneca Attorney District would seek extradite suspects and would attempt carry through with a homicide prosecution even if Clapp’s body were not found. The paper quoted also prosecutor as stating, however, that subsequent prosecution and respondents Greathouse and Jones other than appeared that which in the Democrat & Chronicle and the Times-Union. *5 change.” could “the case developing and evidence was still were and Jones story other noted Greathouse
The that respectively. Carolina, Texas and South that July These revealed papers on 23. Both carried stories York New that waived extradition and Jones, adult, had the sus- questioning and were police Michigan had traveled to extra- police speculation The that pects. articles referred to “legali- involve might dition of woman Greathouse juveniles they only 16 and considered ties” because were an inter- details of Michigan. morning story provided The rented a suspects had landlady view with from whom the Clapp dis- County time staying room while at the Seneca according to state appeared. Greathouse, also noted that It on probation Antonio, Tex., was San but police, police did not know the details his criminal record. story on the another & Chronicle carried Democrat had led morning July 24. It stated that Greathouse mag- spot where he had buried .357 Michigan police to the being gun belonging Clapp num revolver and that suspects. three also stated returned New York with the It motel where police ammunition at the had found stayed woman were believed to have Greathouse and the basic facts they story repeated were before arrested. capture disappearance Clapp known and the about the York Michigan. stated that New suspects the three It body. police Clapp’s continued search Seneca Lake for Great- July reported On & Chronicle the Democrat County arraigned house and had been before a Seneca Jones their second-degree charges shortly after Magistrate on murder had Michigan; they arrival from also woman larceny; arraigned charges second-degree grand been on County jail; that the three had been committed to the Seneca “appeared during session; calm” that all three had the court by three Magistrate depositions signed and that the had read one of whom or six witnesses, having testified heard “five *6 day just shots” from the on disappearance, lake before seeing Clapp’s sharply” “veer the water. boat aby woman
Greathouse, Jones, and the were indicted County grand were jury August Seneca on 2. The two men rob- charged, second-degree several with counts, murder, bery, grand larceny. one woman was indicted on grand larceny. count of Both the Democrat & Chronicle August the Times-Union on reported filing of the indict- ments. story charges stated specified Each that the murder Clapp the two men had gun, with his own had shot weighted body his with lake, anchors and tossed it into the and then Clapp’s had made off with credit card, gun, reported truck. Each defendants were held without again and each bail, provided background material with de- tails Clapp’s disappearance. Clapp’s body The fact that still had been not report recovered was mentioned. noted One that, according to the if body prosecutor, were not recov- prior ered to trial, will be “it the first such trial New York history.” State Each paper day on that also brief carried a notice that memorial service for Clapp would be held that evening in Henrietta. These repeated notices that Great- house and Jones charged had been Clapp’s with murder and body that his had not been recovered.
On August 6, paper each a story carried reporting the details of the arraignments of Greathouse day and Jones be- fore. The papers stated both pleaded men had guilty charges. all Once again, story each repeated the basic facts against accusations the men and noted that the woman was arraigned on larceny charge. The stories noted that attorneys defense given had been days in which to file pretrial motions.
During 90-day this period, Greathouse and Jones moved to suppress statements made to police. ground they asserted was that those statements given had been involun- seized evidence suppress physical
tarily.2 They sought also primary confessions; the involuntary allegedly as fruits gun they suppress sought physical evidence had Greathouse petitioner’s newspaper reported, had which, police. Michigan led the DePasquale Judge suppress before
The motions to came on attorneys argued on At defense hearing, November 4.3 jeopard- had publicity buildup of adverse the unabated They receive a fair trial. ability of the ized the defendants *7 excluded press be requested thus that the and the motion. the hearing. Attorney oppose the The District did petitioner, by the Ritter, reporter employed a Although Carol the objection was made at present courtroom, the no was granted the judge trial of the closure motion. The time motion. a trial letter to the
The next Ritter wrote day, however, and “right hearing,” requesting judge asserting a to cover this re- transcript.” judge The given “we ... be access to the suppression day. the that the sponded later same He stated any decision on immediate hearing had concluded and petitioner The transcript had been reserved. release the exclusionary moved court its order. then the to set aside (McKinney Supp. Under N. Y. Crim. Proe. Law 710.40 and 255.20 §§ 1978), required trial motion a defendant was to file in advance of suppress permitted a to such to evidence. The defendant make statutes a during a he did not have motion for the first time when opportunity prior trial, so or when the State failed reasonable do provide notice trial that it would seek to introduce confession before 710.30 710.40.2. the defendant. §§ hearing the and Jones The on motion of defendants Greathouse involuntary in accord suppress their confessions was held before trial People Huntley, 2d the 15 N. 2d N. E. ance with decision Y. Huntley, (1965). Appeals ruled that the the New York Court of required confession, by this separate inquiry of a into voluntariness Denno, (1964), to be Court’s in Jackson v. U. S. 368 was decision 2d, preliminary hearing. 2d, in a N. 204 N. E. at 183. made 15 Y. motion for hearing on this judge The trial scheduled briefs. At allowing parties 16 after to file November press in his judge that, view, the trial stated proceeding, although he deemed it right of had a constitutional access had representative petitioner “unfortunate” that no his ac- objected Despite closure motion. at the time ceptance right, judge of the existence of this however, constitu- emphasized that it had to be balanced against finding After on tional defendants to trial. fair open suppression hearing pose the record that an would probability defendants,” “reasonable prejudice these judge press ruled that interest of the and the outweighed by this case to a fair defendants’ trial. judge grant thus refused to vacate his exclusion order or petitioner a transcript pretrial immediate access to hearing. following an original proceeding in nature of day,
prohibition challenging on mandamus, the closure orders First, Sixth, Fourteenth Amendment was com- grounds, petitioner menced Supreme Court of the State of New Appellate York, Fourth On Division, Department. *8 December 17, 1976, court held that the exclusionary or- ders transgressed public’s the vital open judicial interest and proceedings further constituted an prior re- unlawful straint in violation of the First and Fourteenth Amendments. It accordingly vacated the trial court’s orders. App. 55 Div. 2d 389 107, N. Y. 2d 719 (1976). S.
On appeal, the New York Court of Appeals held the was technically case moot4 but, because of the critical im- portance of the issues involved, jurisdiction retained reached the merits. The court noted that under law, state 4 Shortly entry before judgment the by Appellate the Division, both pleaded defendants had guilty to lesser included offenses in satisfaction charges against of the Immediately them. thereafter, transcript of the suppression hearing was made petitioner. available to the
377 “[cjriminal public, open trials are presumptively was over- presumption that this including press,” held but defend- danger posed in this case come because of Ap- ants’ trial. Court of ability Thus, receive a fair peals upheld press the exclusion 544 pretrial N. E. 2d proceeding. 43 N. 2d 370, Y. (1977). significance Because of of the constitutional questions 1006. involved, granted we 435 U. certiorari. S.
II noted and suggestion mootness, We consider, first, the rejected by 2d, the New York Court of Y. Appeals. N. aspect at E. 547. We conclude that this 2d, N. governed Stuart, is by the case Nebraska Assn. v. Press controversy U. S. and that moot. 546-547, The petitioner, of has obtained to the tran course, access script suppression hearing. jurisdic But this Court’s tion id., is not order defeated, 546, “simply because the attacked underlying has if between the expired, dispute parties one 'capable yet evading review.’ repetition, Southern ICC, Terminal Co. v. 219 U. S. Pacific (1911).” To meet two conditions must be satisfied: test, “(1) challenged action was too its duration short to be fully litigated prior (2) to its or expiration, cessation there was a expectation reasonable complaining same party subjected again.” would same Wein action stein Bradford, 149. U. S. 147,
Those conditions have been met. closing pre- The order hearing is too short in its duration permit full review. has And to the extent the order denying effect of access to termination of the transcript, criminal underlying proceed- by a guilty case, ing jury verdict, nearly plea, *9 always lifting will lead to of a the order appellate before completed. review is “by The order is nature short-lived.” Press, supra, Nebraska at 547. Further, reasonably York New of two publisher expected petitioner, be orders entered to similar closure subjected be newspapers, will judgment of compliance York courts in with by New merits. turn Appeals. We therefore Court of State’s Ill can publicity recognized adverse long Court has
This
a fair trial.
ability
receive
of a defendant
endanger the
Dowd, 366
Irvin v.
Maxwell,
333;
g., Sheppard
E.
v.
U. S.
310.
Estes
717;
States,
v. United
360 U.
U.
Marshall
S.
Cf.
S.
Texas,
process rights
safeguard
To
due
v.
hearings acute, because it difficult any certainty with degree measure the effects such on publicity the fairness of trial. After the commence prejudicial ment the trial inadmissible information itself, can a kept jury by variety defendant about during such publicized pre When information is means.5 evidence, excluding judge may In addition to inadmissible order sequestration jury variety protective or take of a measures. *10 kept altogether never proceeding, however,
trial proceedings is often potential pretrial of jurors. Closure can judge one of the effective trial most methods to fairness of trial will employ attempt to insure jeopardized by of such information not be the dissemination throughout before trial itself has. even community Louisiana, begun. Cf. Rideau 723.6 v. U. S.
IV A through The Sixth applicable to the Amendment, States Fourteenth, guarantees criminal with such surrounds a trial rights compulsory process as the to and notice, confrontation, have overriding purpose protection as their prosecutorial Among accused from judicial and abuses.7 guarantees provides person charged that the Amendment with'the of a him offense, commission criminal and to alone, “right is the a speedy by impartial trial, and an jury.” The Constitution nowhere mentions part guar- a criminal trial on the its public; access Stuart, Sheppard See Nebraska Press Assn. v. 562-565; 427 U. S. Maxwell, 384 U. S. 358-362. course, All of this not mean, pretrial does that failure to close hearing, protective impact or take other measures to minimize prejudicial publicity, remedy will warrant the extreme reversal a con precisely But viction. it is remedy, because reversal is such an extreme employed and cases, system justice rarest criminal our permits, judges encourages, even in ensuring to be overcautious that a defendant will receive a fair trial. 7The provides: Sixth Amendment prosecutions, enjoy “In all criminal the accused shall to a
speedy public trial, by impartial jury State district wherein crime committed, shall have which shall been district have previously law, been ascertained and to be informed of nature and accusation; against to be him; cause confronted with the witnesses compulsory process obtaining favor, have for in' witnesses his and to have the Assistance of Counsel his defence.” to the accused. personal enumerated, others like the antee, specific (“[T]he California, U. S. Faretta v. See personal Amendment are of the Sixth guarantees *11 dissenting). accused”) (Biackmun-, J., guar- public-trial the uniformly recognized cases have Our In In benefit of the defendant. as created antee one secrecy of that Oliver, Court held re 333 U. S. a to right the accused’s contempt criminal trial violated a right to under the Fourteenth Amendment. public trial always recognized been stated, the Court “has public trial, any attempt employ to our courts as safeguard against aas every crim- persecution. knowledge that instruments in the forum subject contemporaneous to review inal trial is possible an restraint on abuse of public opinion is effective Id., In judicial power.” explanatory footnote, at 270. guarantee public-trial Court stated that the persons . of all accused of protection . 'is for the innocently accused, they may crime —the that not become unjust of an well as prosecution, guilty, victim they may fair be awarded trial —that one rule [as public applied must be observed and to all.’ trials] Frequently quoted is the statement [1] Cooley, Consti- (8th 1927) require- tutional Limitations ed. at 647: 'The public ment of a trial is for the benefit of the accused; may fairly public see he is dealt with and not unjustly and that condemned, presence of interested spectators keep keenly his triers alive to a sense responsibility their of their importance func- Id., tions at 270 25.8 ....’” n. Texas,
Similarly, in Estes v. supra, the held that a Court deprived defendant was of his right process of due law under the Fourteenth Amendment televising recognized right The Court also while the to a trial is guaranteed accused, publicity provides to an also various benefits to the public. S., 333 U. at 270 n. 24.
broadcasting of his rejecting trial. the claim that representatives media right had a constitutional to televise the trial, the Court stated that purpose requirement “[t]he of a trial was guarantee accused would be fairly dealt with unjustly and not S., condemned.” U. id., 538-539. See (“Thus ‘public also at 588 trial’ is not one belonging to the but public, belonging one accused, inhering which process by the institutional justice administered”) id., J., at 583 (Harlan, concurring); (“[T]he public trial provision of the Amendment is a Sixth ‘guarantee to an . necessary component accused’ . . [and] of an a fair accused’s trial .”) (Warren, J., . . C. concurring).
Thus, both the Oliver and Estes cases recognized that constitutional guarantee for the benefit of *12 the defendant. slightest There is not the suggestion in either that is any case there right correlative members public to a upon public insist trial.9
9 recognized Numerous commentators have also that a defendant right public has a to a Radin, trial g., under the Sixth Amendment. E. Right Trial, Temple Q. a (a public The to Public 6 381, (1932) L. 392 right public to a trial “cannot be derived the Constitution because certainly the Constitution does public not mention a trial as privilege the public, expressly but accused”); Boldt, as that of the Should Canon Amended?, 35 Be 55, (“[T]he 41 A. B. (1955) guarantee A. J. 56 public trial is for persons charged the benefit of with crime .... It is significant say public the Constitution not right does has ‘enjoy’ to nothing even attend trials. There is in the constitutional language indicating individual other than the a crim accused in right trial . . . inal either a to attend publicity the trial or to ema [has] nating trial”); from the Note, Right Hearings, The to Attend Criminal 78 1308, (since (1978) Colum. L. Rev. 1321 the Sixth Amendment confers a right public accused, to a parallel trial to possibly “to a elaborate public right public guarantee adverse of access from the trial clause strains even language beyond bounds”); flexible proper Note, constitutional its Right The to a Cases, Public Trial Criminal 41 N. Y. U. Rev. L. (1966) importance (“Despite public’s interest, however, appear public right not does that a 'so rooted the traditions and
B guarantees a to defendant While the Amendment Sixth guarantee right public it does not trial, a criminal case to a ability compel private right waive trial. “The carry right ordinarily right not with it the constitutional does right.” Singer upon opposite v. United to insist of that States, U. 34-35.10 But the issue here is whether 380 S. compel private Rather, can trial.11 the issue the defendant people particularly ranked . . . conscience of our as fundamental/ right the'majority in view of the uncertain status of this of the state courts”). Powell, Trial, Right to a Fair 51 A. A. J.
See also
B.
(1965) (“We
primary
public
purpose
bear in mind that
of a
must
part
right
trial and of the media’s
as a
to attend and
report
protect
accused”);
Cooley,
what occurs there is to
1 T.
Con-
(8th
(“The requirement
1927)
stitutional Limitations
ed.
of a
.”).
is for
.
the benefit of the accused .
today, only
court,
appears
federal,
It
that before
one
state or
ever
has
upon
held that the
Sixth
Fourteenth Amendments confer
members
right
Cianfrani,
of access to a criminal trial. United States v.
(CA3 1978).
is members have enforceable public independently a can parties trial that asserted in the litigation.
There can be strong no the fact that there is a blinking public societal interest in Openness proceed- in trials. court ings may improve quality induce unknown testimony, witnesses to come forward all testimony, with relevant cause participants perform their duties conscientiously, more generally give public an opportunity to observe judicial system. Texas, Estes v. U. atS., (Warren, J.,C. concurring). strong But is societal interest there a other guarantees constitutional extended to accused as well. public, example, concrete in- has a definite and fairly terest in seeing justice swiftly administered. v. Wingo, See Barker S. Similarly, pub- 519. U. lic has an interest a criminal having by jury, case a heard being an interest from distinct the defendant’s interest tried by a jury States, peers. of his United Patton v. 281 U. S. 312.
Recognition of independent public an enforce- interest ment of guarantees Sixth Amendment is a far however, cry, the creation of constitutional right part on the of the. public. adversary system justice, criminal interest by the administration of justice protected participants in the litigation. Thus, great because in jury preferred interest as the fact- trials mode of finding in criminal jury defendant cannot waive a cases, trial without the prosecutor Singer consent of the judge. States, supra, v. United 38; States, Patton v. supra, United But at 312. if the right jury defendant waives his to a trial, dissenting opinion. question framed If presented, were it is Singer clear right. the defendant would no have such See United States, (“[Although U. S. can, a defendant under some cir- cumstances, waive his constitutional trial, has no he trial”). compel private absolute *14 hardly be it could prosecutor judge consent, and the demand a a could seriously that member of argued mode fact- interest in of of the societal jury trial because by to be (trials 23 (a) Cf. Fed. Rule Proc. finding. Crim. must approve but the court defendant, unless a jury waived Similarly, waiver). prosecution must consent to and the a speedy his to right a cannot while defendant convert a right compel a an indefinite member postponement, into to continu- surely prevent has no a of the general in the efficient vindicate the interest ance order to adversary system our short, In justice. administration justice premised upon proposition that criminal is fully protected by participants in the public interest is litigation.12
V a have consti- general public arguing that members despite the obvious right to attend criminal trial, tutional a a or text for such the structure support lack and amici petitioner rely history on the Amendment, Sixth public-trial guarantee. of the This ulti- history, however, mately ho of a common- demonstrates more than the existence open law rule of civil criminal proceedings.
A many Not common-law rules have been elevated to the provisions status constitutional of our rights. Consti- recognized prosecutor representative The Court has that a “is the controversy, ordinary party sovereignty of an a obliga but of whose govern impartially compelling obligation tion to as govern its all; interest, therefore, prosecution and whose in a criminal is not that it justice case, such, shall win but shall be he done. As in a peculiar very definite Berger sense the servant of .” the law . . . States, United U. responsibility prosecutor S. 88. The as a representative public surely encompasses duty protect requires open responsibility societal interest in an But this trial. also him process rights to the due sensitive defendant to a fair trial. fortiori, A judge obligation. has the trial the same dual *15 common-law incorporation
tution do reflect of certain few an ato right rules common-law rejection and others. The jury in trial, example, explicitly for is embodied the Sixth looked Seventh Amendments. The common-law rule that upon give could jurors parties as interested who evidence against rejected by the explicitly defendant13 was Sixth Amendment tried provision that a is entitled to be defendant by an “impartial majority of jury.” But the vast common- law nor part rules were neither made of the Constitution explicitly rejected by it. judicial
Our duty determine whether this case to re- open incorporated, common-law rule of proceedings jected, undisturbed Amendment. left the Sixth pursuing this to inquiry, important distinguish it is between what It permits Constitution what it requires. suggested has never been by phrasing public-trial that guarantee right as a to Framers intended accused, the reject the no open common-law rule of proceedings. There question permits pre- that the Sixth Amendment and even sumes open trials aas norm. But the issue here is whether requires Constitution as pretrial that a proceeding such be opened one though participants even public, litigation in the agree protect be closed to should defendants’ a fair right history trial.14 upon which petitioner rely totally and amici fails demonstrate that Framers of the con- Sixth intended to Amendment create a strangers stitutional a pretrial proceeding, to attend 13Blackstone, example, “universally stated that it if a obtains” that juror issue, may “give knows of a matter in he his publicly evidence Blackstone, court.” 3 W. Commentaries *375. 14Thus, enough say, it is not dissenting opinion, the words of the that there casting is no public-trial concept “evidence in terms of signaled departure practice,” accused from common-law post, and that “there is no Congress, indication the First proposing what Amendment, became the depart Sixth meant practice Post, common-law at 426. accused upon confer they actually did was to
when all that In conspicuous public trial.15 explicit right to demand a pro- early state constitutions that with some of the contrast analysis petitioner problem the historical An additional with equally applicable and criminal cases to civil and amici is that it is many and criminal centuries, For both civil proves therefore much. too early 1685, Sir traditionally open public. As been trials have necessary “that open so proceedings were John Hawles commented (emphasis matters” in civil as well as criminal truth be discovered Trial, added). St. Tr. upon Mr. Cornish’s How. 460. Remarks *16 that the common-law rule was English commentators also assumed distinguishing be public and criminal without could attend civil trials Coke, England 103 g., 2 of tween the two. E. E. Institutes of Laws (6th 1681) (“all openly Kings in the ought Causes to be heard . . . ed. History *372; Courts”); Blackstone, Hale, Commentaries M. 3 W. (6th 1820); Jenks, The England 343, 345 ed. E. of the Common Law of (6th 1967). English Book of Law 73-74 ed. experience analogous. in the American Colonies was From the' Jersey
beginning, open Indeed, Consti- the norm was trials. the 1677 New any provided person could a trial whether it was “civil tution attend criminal,” Jersey (1677), Agreements or Concessions and West New XXIII, quoted Documentary Schwartz, Rights: ch. in 1 The Bill of A B. History (1971) added). Similarly, (emphasis 129 the 1682 and 1776 Pennsylvania provided open,” Constitutions both that “all courts shall be Schwartz, supra, 140,271 (emphasis added). 1
If the existence of common-law rule were the test for whether there public therefore, right public trial, is a Sixth Amendment ato there would right be such a. in civil as well Amend- as criminal cases. But the Sixth speak .ail; by ment does not in terms of civil cases at terms it is its providing rights limited short, to an accused in criminal cases. In there principled public judicial is no upon right basis access which proceedings scope right can be limited to criminal cases if the of the by defined the common law rather than the text and structure of the Constitution.
Indeed, many equally advantages public of the criminal trials are applicable operation judicial civil trial context. While of the process in only parties litigation, civil cases is often interest in the always g., Sandford, 393; E. Dred case. Scott v. 19 How. Plessy Ferguson, 537; v. Education, 163 U. S. Brown Board v. 347 483; University Regents Bakke, U. S. 438 265. U. S. of California Thus, public access, salutary in some civil cases the interest in and the public right
vided open civil and criminal trials,16 right only Sixth Amendment a upon confers the defendant and in a criminal case.
B But even if the Sixth and Fourteenth Amendments could properly be viewed as embodying the common-law public to necessarily criminal follow trials, attend would not the petitioner would have a under the access circumstances of this case. For persuasive there exists no evidence that at common law had members of the right to pretrial proceedings; attend there is substan indeed, tial evidence to contrary.17 By adoption the time of the the Constitution, clearly trials were associated with protection pretrial defendant.18 proceedings, And publicity, may as, effect of strong be as stronger than, in most criminal cases. supra. See n. 17Although pretrial suppression hearings law, were unknown at common preliminary hearings early other were formalized statute as (1554); 1555. & Phil. & M., M., ch. 13 & 3 Phil. & ch. 10 (1555). *17 18After the abolition 1641, of the Star Chamber in defendants criminal began acquire many rights cases presently to that are embodied in Thus, the Sixth Amendment. right the accused now had the to confront witnesses, behalf, call witnesses in generally right his own to a fair during as period public trial we now know it. It was this that the trial first became as a identified of the accused. As one commentator has stated: public trial, although always “The acquired it had custom, been the new
significance. gave protection against any It the individual being denied rights. public of his other A fundamental trial would make it difficult for judge jury Any to abuse a accused. such abuses would cause public indignation. much Thus, implicit it must have seemed public trial was as much an essential element of a fair trial as History: newer Note, Legal Origins conventions.” Trial, of the Public 251, 35 (1960). Ind. L. J. 255 during period
It was demanding that we first find defendants public See, Lilburne, trial. The Trial John 1270, 4 St. How. Tr. 1273 388 trial, for were concern a fair because the same
precisely as were degree openness by characterized never same actual trials.19 treason, public trial (1649), Lilbume, for to a on trial referred which Indeed, liberty fact Englishman.” "the fundamental of an first public trial in the guaranteed
that the Framers
to
accused the
to
rights of an accused
fair-trial
same Amendment
that contains
other
clearly
open
by
with the
suggests
then
associated
also
trials were
rights of a defendant.
19
respect
themselves,
publicity has
Even
trials
the tradition of
with
to
public
general
has
been
of some members
not
universal. Exclusion
example,
involving
against minors.
upheld,
been
in cases
violent crimes
1958).
States,
(CA9
v. United
F. 2d 151
has also
Geise
262
testimony
temporarily
during
of certain wit-
been
excluded from trials
Cahill,
505,
g., Beauchamp
Ky.
E.
423
nesses.
v.
297
180 S. W. 2d
(1944)
(exclusion justified
testify
revolting
when children forced
(1907) (exclusion
facts);
Callahan,
63,
Minn.
State
100
Approximately containing half also provisions the States have upon public (1975) g., limitations trials. E. Ala. Code 12-21-202 § rape (1978) (public cases); (pub- be excluded can Ga. Code 81-1006 § Ann., vulgar); lic can excluded where evidence Mass. Gen. Laws (West 1972) (general from all ch. 16A can be excluded trials § designated crimes); (no person (1978) Minn. Stat. under §631.04 present party trial); shall be a criminal Code who Ya. 19.2- § (1975) (“In may, the trial of all criminal . . . in its cases the court discretion, any persons presence impair exclude . . . whose would *18 .”). conduct of . a fair trial . petitioner appear argue
The and amici to exclusion of mem- since public relatively rare, bers of the public there must be a constitutional
389 English right Under common had no to public law, pretrial E. of proceedings. g., attend E. Book Jenks, (6th 1967) 75 English (“It must, course, Law ed. be remembered, principle publicity only applies that the to or necessarily preliminary actual trial of a case, prefatory Maitland, stages proceedings .”); F. . . (1885) (The “preliminary Justice and Police 129 examination very of accused persons gradually judicial has assumed place 'open form .... in which is held is indeed no public can be excluded if the thinks that court,’ magistrate .”). justice the ends of will thus be best answered . See also . 11 (1848) (pro- Indictable Offences & 12 19§ ch. Viet., Act, viding pretrial proceedings not be deemed should open excluded); therefore be court could Magistrates’ 15 & 6 & Courts Eliz. ch. Act, Geo. (2) (1952) (same).20 §4
right argument, however, confuses the existence to a trial. This right open civil and of a constitutional with the common-law tradition 15, supra. tradition, proceedings. criminal This common-law See n. explicit criminal coupled with the of the accused to a trial in cases, fully explains general prevalence open trials. reporting pretrial Similarly, press privilege had no judicial proceedings English under common law. Thus in well-known (N. King Fisher, Camp. 563, Eng. Rep. 1811), P. case of pretrial hearing information about a the dissemination of court forbade distinguishing a fair trial. protect the of the accused receive trials, reporting of and the absence privilege between the accorded Ellenborough proceedings, Lord privilege reporting pretrial such a declared: in the administration of thing important than another
“If is more on persons trial of those justice, jurymen should come to the it is that pure unpreju- they decide, with minds guilt whose are innocence may occasionally although they law, fairly reported, . diced. . . Trials them individuals, privileged. Let injurious have been held to prove preliminary examinations have privileged. . . . But these continue so only tendency prejudge is to those whom privilege. such Their no *19 390 part a familiar of the been pretrial proceedings have
Closed New original landscape country in this as well. judicial published Criminal Procedure York Field Code of be closed hearings provided pretrial should example, explan- request of a defendant.” public “upon designed to provision atory report made clear that pretrial publicity: prejudicial protect defendants necessarily public, “If be the examination must testimony mere upon the consequence be that before the com- spread will be preliminary examination of in cases munity, opinion created, which, state of to obtain great public interest, will render difficult of unprejudiced jury. justice require The interests if it be prejudged, the case of the defendant should not complain, justly one can avoided; can be no dangers pre- of this put upon until he is his trial, judgment obviated.” are part have all or of the Indeed, eight of the retained States that poison justice.” presumes innocent, and to sources of law still be Id., 570-571, Eng. Rep., at at 1255.
See also King Parke, [1903] 2 K. B. 438. proceedings did reporting pretrial access and Restrictions of hearings hearings did not exist suppression because such involve public right early the rationale for the lack common law. But ac- pretrial judicial proceedings protection access — hearings. equally pretrial suppression applicable cused to fair trial —is hearing to ensure purpose pretrial suppression Indeed, the entire unfairly evidence. contaminated that the accused will not be convicted Pleadings, Procedure, on Code Criminal Commissioners Practice 1850). (Final Report 202§ however, public trial, Id., protect right to a at 94. To a defendant’s request defendant: could ordered closure against examination, guard rights a secret of the defendant “To private, provides unless at it shall not be conducted his section request.” Id., 95. kept relating
Field Code to closed explicit provision have pretrial hearings.23
For have we reasons, these hold that members no constitutional under Sixth and Fourteenth *20 Amendments attend criminal trials.
VI petitioner and argues press The also members that right by pretrial hearing have a access to reason of and v. the First Fourteenth Amendments. Pell Procunier, 417 Washington Saxbe 817, S. v. Co., Post U. KQED, Inc., U. S. and Houchins this v. U. S. upheld prison regulations Court to members of that denied press prisons superior access to to that afforded to the generally. Some Members Court, took however, in position those cases that Amend- the First Fourteenth guarantee ments do in press or the general, 9.3; Ariz. (West 1970); Rule Proe. Crim. Cal. Penal Code Ann. 868§ (1979); (1973); Idaho Code 19-811 Iowa Code Code Mont. § §761.13 (1978); (1975); Ann. Nev. Rev. 171.204 Cent. Stat. N. §46-10-201 § D. (1974); (1978). Code Utah Code Other §29-07-14 §77-15-13 Ann. provisions. g., (f) States have similar E. Rule Crim. Pa. Proc. 323 (providing suppression hearings open shall be “unless defendant presence defendant, moves that it be in the held counsel for parties, necessary witnesses”). court officers and Still other States statutory pretrial hearings allow closure of without Ne authorization. Stuart, braska Press S., Assn. v. 427 U. at 568. year
Until ago, a the American Bar Association also endorsed view presiding pretrial hearings request officers should close defendant was no unless there “substantial likelihood” that the defendant by prejudiced open Project ABA proceeding. would on Standards Justice, 1968). Criminal (App. for Fair Trial and Press Free Draft §3.1 ABA, “approach Supreme following by taken Court in Ne- Stuart,” changed braska Press Association has now this standard. Project Justice, ABA on Standards Criminal Fair Trial Free Press, p. 1978). 8-3.2, (App. Standard Press Draft The Nebraska case, however, question presented is irrelevant n. here. See infra. ex- complete their precludes right access
particular, interest. governmental significant in the absence of clusion Houchins, dissenting); Saxbe, supra, J., at 850 See (Powell, id., also dissenting). See supra, J., at 19 (Stevens, J., concurring). (Stewart, rulings our to narrow urges case us petitioner this recog- Houchins the extent Pell, Saxbe, at least attend
nizing a First and Fourteenth Amendment how- abstract, need not decide criminal trials.24 We For even right. such constitutional whether there ever, Amend- arguendo, and Fourteenth the First assuming, ques- may guarantee situations, some such access in ments appro- given decide, putative tion do all we present prius nisi priate deference the state court case. *21 of the actions lead the conclusion that
Several factors any right of access judge with the trial here were consistent the had the and Fourteenth petitioner have under First in the spectators present of First, Amendments. none the reporter employed by petitioner, the courtroom, including the De- objected the motion. when the defendants made closure counsel spite contemporaneous objection, this failure to make be heard at a petitioner given opportunity the was an proceeding petitioner’s he the where was allowed to voice objections of pretrial proceed- to closure the At this hearing. ing, place filing which took the of the court briefs, after trial press balanced the of and the rights “constitutional the public” against to a The right the “defendants’ fair trial.” judge trial making appraisal concluded after this the press and the public could be excluded from suppression hearing and could be denied access immediate to a transcript, petitioner argues traditionally trials open have been public, prisons traditionally in contrast from which the has been excluded. We need not decide in this case whether this factual difference any significance. is of constitutional prob- a “reasonable open proceeding pose
because would of ability prejudice Thus, defendants.” these representatives press court did have found that right of access of under the dimension, held, constitutional but outweighed by right circumstances this was case, that to a closure defendants’ fair trial. short, competing decision was “on an societal based assessment any interests involved . rather than on determination that . . Saxbe, First Amendment freedoms not implicated.” were supra, (Powell, J., dissenting).
Furthermore, any denial of access in not ab- this case was but temporary. danger prejudice solute Once had dissipated, transcript suppression hearing was made press full op- available. and the had a then portunity to scrutinize suppression hearing. Unlike the case of an absolute ban on access, therefore, press here opportunity had the to inform the of the details of the pretrial hearing accurately and completely. cir- Under these cumstances, and Fourteenth First Amendment petitioner attend criminal trial not violated.25
VII certainly We do disparage general desirability open judicial proceedings. But we are not asked here to de-
25This Court’s decision Nebraska v. Stuart, supra, Press Assn. petitioner no assistance to this case. The Nebraska Press case involved prior a direct imposed by judge restraint a trial on *22 press, prohibiting members the them disseminating from information about a criminal trial. Since “it has been generally, universally, if not considered purpose it is the chief of the guar [First Amendment’s] anty prevent previous upon to publication,” restraints Near v. Minnesota Olson, ex rel. 697, 713, 283 U. S. the Court held that the order violated guarantee press. the constitutional of a Publishing free also See Oklahoma Court, Co. v. District 430 U. S. present 308. The exclusion in order the contrast, case, by prevent did petitioner not the publishing any possession. information in proper its inquiry, therefore, is whether petitioner the was denied right constitutional of access. social represent beneficial open proceedings whether clare a barrier to there would be constitutional policy, whether a the a than stricter standard closure imposed state law that are York courts. we employed Rather, one here the New gave petitioner the the Constitution itself asked hold that even pretrial proceeding, this affirmative access to an agreed litigation all though participants in rights of the protect should be closed fair-trial defendants. opinion, hold that
For all of the reasons we discussed provides right. Accordingly, Constitution no such York is affirmed. judgment Appeals the New Court
Is is ordered. so concurring. Me. Chief Justice Burger, I I join opinion separately write Court, but emphasize my proceeding view of nature of involved be- today’s By hearing decision. on motion definition, trial; pretrial not a it is a suppress fore evidence is hearing. criminal
The Sixth Amendment tells us that all “[i]n prosecutions, enjoy the accused shall a . . . (Emphasis practice Western supplied.) trial.” It is for societies, part been of the common-law tradition has centuries, generally public. important that trials This is prophylaxis system justice constitutes society. our has an interest adhesive element of observing performance litigants not witnesses, presiding judge. also of the and the but advocates if Similarly, the accused testifies, proper there testimony. interest alone does create But interest right. a constitutional common very
At law there presumption was different proceedings preceded which the trial. There awareness effects publication of the untoward that could from the result *23 of information a before indictment was returned before person bound for For an we example was over trial. need only Daubney consider the case of v. & R. Cooper, M. (K. which a 1829), trespass against B. involved for suit a judge forcing person a a argu- out of courtroom. The on ment concentrated whether a defendant was entitled represented by to be counsel. on following exchange But the appeal illustrates the distinction drawn between trials and pretrial proceedings:
(Counsel) “. . . Coleridge The decision in Cox pro- ceeded on ground place that what had taken before the magistrates, merely was preliminary inquiry. a proceeded entirely decision upon ground. The Court pointed out the inconvenience which would result giving publicity to previous such inquiry.” I
Bayley, (interrupting) J. . . believe in that “. case a distinction was taken between preliminary inquiry inquiry and an upon which there conviction.”
(Counsel continued) . Lord . Tenterden says, there being only ‘This a preliminary inquiry trial, and not a makes, my all the (Emphasis mind, difference”* in original.)
Parke, (interrupting) J. . . The in Cox v. decision Coleridge upon turned being its preliminary a case of inquiry.” Id., at 318. at common sum, law, recognized the courts timing that the
of a proceeding likely to be critical.
When Sixth Amendment was and for written, more than quotation proceeding] *The full was: “It preliminary in- [the quiry, ground whether there be sufficient prisoner to commit the for trial. proceeding grand jury before precisely nature, same difficult, would be if the present case, exists deny it in being only preliminary that. This inquiry, trial, makes, my not a mind, Coleridge, all the difference.” Cox v. 37, 49-50, B. & Eng. C. 15,19-20 (1822). Rep. *24 conceived that could have century that, after no one suppress evidence exclusionary motions to pretrial rule The authors jurisprudence. part be of our criminal would as perceptive farsighted, imaginative, the Constitution, conceivably anticipated paradox they not have were, could excludes un- judge-made in a rule evidence inherent adver- truthfinding processes truth from the doubted not we confronted sary system. now, as of are Nevertheless, reality unique stric- legal theory with a but with of the they be into exclusionary rule, tures must taken de- setting. in To the evidence make account Brewer cf. veloped suppress evidence, in a motion to Williams, long so as the exclu- (1977), would, U. S. sionary dimension modified, rule is not introduce new problem conducting fair trials. not though could Even the draftsmen of the Constitution suppress 20th-century pretrial proceedings anticipate wholly unknown in pretrial proceedings evidence, were not day. pretrial in 18th- interrogatories Written were used century especially admiralty Thus, cases. it litigation, lawyers safe assume that those who drafted the Sixth testimony likely Amendment were not unaware that some was sug- to be recorded before trials took no ever place. Yet, one gested any “right” present there to be pretrial proceedings such as time; were available until the trial could it known whether and to what pretrial extent the would be offered or received. evidence Similarly, during years pretrial last which the processes enormously have been has never oc- expanded, so far I anyone, pretrial deposi- curred aware, am that a pretrial interrogatories tion or wholly private were other than A litigants. pretrial deposition part of does not become a “trial” until deposition and unless the contents of the are offered evidence. Pretrial depositions are not uncommon testimony to take the of a either witness, for the defense or no prosecution. pretrial period, for the entire there neigh- certainty place. Something will take that a trial by are percent charges borhood of 85 of all resolved criminal guilty depositions have been frequently pretrial after pleas, suppress upon. taken or been motions to have ruled evidence “pre- For of all of me, the essence this is that definition exactly are proceedings” that. concurring. Me. Justice Powell, I I Although join opinion would address Court, *25 of importance of the question it reserves. Because public’s opera- having concerning accurate information I justice explicitly tion of its hold criminal would system, petitioner’s by an the' First reporter protected had interest present and being pretrial Fourteenth Amendments in at the suppression I hearing.1 As Saxbe v. Wash- argued have ington Co., (1974) J., Post 417 U. 843, (Powell, S. dissenting), protection this constitutional not from derives, any special rather press such, status of members of as but present case, public
1 In the press members and were excluded of the pretrial from a suppression hearing, from the trial itself. rather than justice suppression hearings our system developed, criminal as it has often important government’s are may as the trial as which case follow. may upon turn the confession or that the defendant other evidence seeks suppress, ruling may to and trial court’s evidence such determine on following as, outcome Indeed, of the case. case was no trial there suppression hearing, plea bargaining guilty that resulted in occurred pleas. special significance suppression hearing, In view of the of public’s proceeding comparable interest in this often is to its interest emphasized, however, the trial itself. It be is to that not all inci pretrial comparable dents of are and trial in terms of interest and importance hearing question to a formal critical, which the is whether if conclusive, not is to be evidence admitted or excluded. In the criminal process, arguments, there consultations, be numerous and decisions, depositions interrogatories, well as and that are not process central to the and implicate First rights. no Amendment And, course, grand of jury traditionally proceedings have been held strict confidence. See Inc., KQED, 1, 34-35 (1978) Houchins J., v. 438 U. dissenting). S. (Stevens, acts as an press . . the news the . seeking out because “[i]n which of member individual each large,” agent for the needed information “the for himself cannot obtain Id., responsibilities.” political his intelligent discharge Bellotti, 435 S. Boston Bank v. U. First National 863. Cf. (1978). 776-778 course, proceedings, to courtroom right of access constitutional both is limited absolute. It Texas, 381 v. g., e. Estes trial, see, fair of defendants obtain government by the needs (1965), U. S. confidentiality of sensitive preserve just convictions Procunier identity of informants. Cf. information and the Houchins v. (1974); 412-413 Martinez, 416 U. S. dissent- KQED, Inc., (1978) (Stevens, J., 34-35 S.U. (dis- Co., supra, at 872-873 Washington Post ing) ; Saxbe v. application senting opinion). determining The task necessarily falls in each individual trial these limitations mem- to exclude exclusively upon court asked almost For would courtroom. press bers cease proceedings to entirely impractical require criminal review opportunity appellate courts were afforded while the more proceedings. close It all a trial court’s decision to *26 identify guidance for the this Court important, therefore, by they which are courts the constitutional standard trial proce- minimal whether is and judge justified, closure applied.2 dure which this standard is to be this, competing In cases such as where constitutional weighed trial, criminal rights must be the context a Rehnqtjist’s Contrary suggestion, post, to Me. Justice at lower today’s they cannot assume after decision that deter courts are “free to question open proceeding” mine for themselves the whether to or close the my although disagree from all constitutional constraint. For I with free dissenting concerning origin scope four Brethren and the of the con closing pretrial proceedings, agree stitutional limitations on the I with they require their conclusion that there are limitations the careful attention before closure can be of trial courts ordered. exercise question
the often difficult is whether unrestrained danger fair rights of First a poses Amendment serious Estes, of a ness defendant’s trial. “As we stressed presence press judicial must be limited proceedings apparent when it otherwise be might the accused Maxwell, 384 prejudiced disadvantaged.” Sheppard v. Texas, (footnote (1966) omitted); S. Estes v. U. see In supra, at 539. number striking this balance there are a weighed. considerations to be In Press Assn. v. Nebraska Stuart, 427 S. 539 is a (1976), U. we concluded that there strong presumption against prohibiting press members of the from publishing already possession information con their cerning courtroom proceedings. Excluding members of all press from substantially courtroom, differs however, Press, from the “gag order” at issue the latter \Nebraska involved a prior classic “one of the most extraordi restraint,' nary id., remedies known to our jurisprudence,” 562, and applied to irrespective information of its source. present case, on hand, the other are we confronted with court’s order that in effect denies albeit one, access It important, source. does not in any way press tell the what may publish. Despite these differences between Press Nebraska and the present petitioner case, impose asks the Court severe burden upon seeking defendants approach closure. The taken in Me. opinion grant would this Justice Blackmun’s request, limiting closure strictly to those cases where “it inescapably necessary in protect order to guaran- fair-trial tee.” post, See at 440. It is imagine difficult case where closure appropriately could ordered under standard. A rule of apparent such inflexibility prejudice could defend- rights ants’ society’s and disserve interest the fair and prompt disposition of criminal pretrial trials. As result *27 publicity, defendants be could convicted after less than the meticulously fair trial the Constitution There demands. on appeal. of an increase in reversal convictions also could be approach suggested me it seems to the event, either the defendant's adequately safeguard not by petitioner would significance right equal a constitutional right to a fair trial, a more would be right better course of access. The First Amendment accommodation between and Sixth flexible by interference the from state-law protected which are rights under which Amendment —an accommodation Fourteenth rights members of rights nor the neither defendants' Branzburg made subordinate. Cf. press and should be Hayes, (1972) J., concur- S. 709-710 U. (Powell, . consider- ring) court, the trial question therefore, is pretrial suppression hearing a motion close whether ing to likely jeopardized fair trial for defendant be to present are press if members publicity, report presented be prejudicial free to evidence that will not jury. Although appli- Press is standard of Nebraska not strict concerning cable decisions closure of courtroom proceedings, much of discussion in factors to con- that case be in making “gag sidered respect decisions with orders” is relevant to closure decisions. where defendant Thus, requests trial court to exclude the it should con- public, reasonably sider are whether there alternative means available by which might the fairness preserved the trial without interfering substantially public’s with the prompt interest access to information concerning the administration of justice. Similarly, justified because exclusion is protection as a to a defendant’s trial and fair the State’s interest members press confidentiality, objecting to exclusion have demand that no it extend likely farther than is goals. achieve these Thus, for ex- ample, trial court should withhold transcript closed courtroom proceedings past the time when no prejudice likely to result to the defendant from its State release.
It is not enough, however, that apply courts certain *28 right to for If constitutional requests
standard closure. the repre- press substance, to have the to access is to be groups given opportunity sentatives of be these must question opportunity heard on the exclusion. But this their actually present at the persons extends no farther than the for would made, time the motion closure is for the alternative require delays pretrial proceedings substantial trial and given public. Upon timely objection while notice was to the granting the trial motion, upon the it incumbent to be present opportunity court afford those reasonable likely on heard the question whether the defendant deprived of press permitted a fair if are trial the remain attendance. At this it is the defendant’s hearing, responsibility party showing the moving to make some likely by public the fairness of his prejudiced will be joins access to the proceedings. if the Similarly, State request, closure be given opportunity should to show public access would interfere with its fair interests proceedings or in- preserving confidentiality of sensitive formation. On the other members of hand, press public who object to responsibility closure have the of show- ing the court’s satisfaction procedures alternative are available would dangers eliminate the shown defendant and the State. is whether question, then, the First Amendment
of access outlined above adequately respected was in the present reporter case. As the Court notes, ordered upon the courtroom motion did the defendants not object to the closure order until suppression hearing was completed. all but Petitioner’s to be on heard question of closure, was therefore, until invoked closure was an accomplished and irrevocable Upon fact.3 subsequent Indeed, during argument, oral the trial court told counsel very petitioner: for you “It is unfortunate that were when not here made, motion but motion [closure] was made and it was made moving being rights with the behind force the motion of the defendants was allowed newspaper for the counsel request, petitioner’s written present request after the reasonable time within order. closure challenging its arguments to the court and oral a standard applied trial court argument, this oral At peti- reviewed above. It first similar to that set forth *29 closure finding that basis for its tioner’s counsel the factual defendants’ fairness of the necessary preserve had been to the to be evidence In the nature of the view, trial. the court’s of the de- age of two young the hearing, considered at the already given the publicity and the extent of the fendants, substantially open would hearing case had that an indicated subsequent trial. of the defendants’ jeopardize the fairness prosecutor, the emphasized the court the fact that Moreover, the closure lawyers, as well as each of the defense had endorsed petitioner the court found that hand, motion. On the other on presented any changing basis for court’s views the had court Throughout argument, the need closure. oral the public to recognized press the constitutional of the present proceedings. however, be criminal concluded, It in the “unique presented that situation” to closure had it, placed upon been seal it appropriate, that had the transcript suppression hearing should continue effect.4 App. newspapers
to a fair trial.” 13. “The Gannett knew that the matter they was hearing, scheduled for a did opportunity have an to have counsel present particular morning made, on that motion was [closure] unfortunately representative newspapers.” there was no of the Gannett Id., at 17. appear It gave any does not from the record that the trial court ex plicit sealing consideration to the alternatives to closure and the transcript. Although generally necessary such consideration order permits closure, supra, determine whether the Constitution see present in the circumstances of the I case find trial cannot error proceeding. court’s method of counsel, appeared Petitioner’s when he suggested after the closure order effectuated, only obliquely had been the court change should consider alternatives such as a venue. At oral argument court, lawyer before the insisted that “there must be a fully my view, procedure followed the trial court
comported required by Moreover, with Constitution. essentially correct, and, applied substantive standard giving judge proximity due deference surrounding I that it was error cannot conclude circumstances, I therefore petitioner’s reporter. case exclude agree that judgment Appeals of the New York Court must affirmed.
Mr. Justice concurring. Rehnquist, I sepa- concur I Court, While in the write opinion rately emphasize apparent what should be the Court’s Sixth Amendment the First Amend- holding and to address appears ment issue that the Court to reserve.
The Court today “mem- holds, qualification, without bers no have under constitutional *30 Sixth and Fourteenth to attend criminal trials.” Amendments Ante, at 391. In judge this the trial closed suppres- case, sion hearing open might because he hearing concluded that posed have a to danger ability the defendants’ to a receive fair trial. Ante, at 376. But the Court’s fact recitation and its discussion preserve right of the need to the defendant’s ante, to a fair trial, interpreted should not be to 378-379, mean that under the Sixth Amendment a trial court can close showing factual remedying that there are no alternative that means problem prejudicial publicity], only thing and the [of that has been men- today tioned ... that probability there a de- reasonable that fendants’ prejudiced.” ease suggested would be Insofar as this remark that the burden was prove on the to defendants that there were no closure, alternatives properly rejected suggestion. the court See discussion, supra, appears petitioner’s at 401. And it counsel, for part, his any made no effort to proceed- show that alternative method of ing satisfactory. light would be of the unsettled state of the law con- fronting court, the trial and the petitioner uncertain nature claims making, was I conclude that there nowas material deviation guidelines set forth above. 404 a danger there is hearing or when pretrial trial
a con- To the harm will the defendant.1 publicity prejudicial any not have public does Court holds that trary, since the neces- proceedings, right of access to such it Amendment Sixth proceeding, on a closed parties agree if the sarily follows that Amendment required trial is not the Sixth court open pre- declining for any reason whatsoever advance question is no hearing public. or trial to the “There presumes open trials permits and even the Sixth Amendment today Ante, holds, the But, at 385. the Court as norm.” hearing or require a criminal trial does not Sixth Amendment litigation opened public participants to be if the appeal- agree jurisprudentially no matter how reason, or should closed. ing unappealing, that it “arguendo” assume Court states that it guarantee First and Fourteenth Amendments right because pretrial hearings situations, of access to some right given “putative concludes that in this case this Ante, all appropriate Despite deference.” at 392. the Court’s seeming question reservation whether the Amend- First. guarantees pro- ment pretrial of access to ceedings, repeatedly it is clear that this Court has held that there is no First Amendment of access in the or press judicial governmental proceedings. other See post, Inc., Nixon 411; v. Warner S. Communications, U. Washington Saxbe 589, Co., v. Post U. (1978); S. Procunier, Pell (1974); v. (1974); U. S. Branzburg Hayes, 408 U. (1972); S. 684-685 Zemel v. *31 Rusk, Texas, 381 U. 16-17 (1965); S. 532, Estes v. 381 U. S. 1,
1In fact, recognize, as both the Court and the dissent the instances in pretrial publicity alone, pervasive which publicity, even and adverse ac tually deprives ability a defendant of the to obtain a fair trial be will quite Ante, 6; rare. post, 443-444; at 379 n. at see Nebraska Press Assn. v. Stuart, 539, (1976); Murphy Florida, U. S. 551-555 794, 421 U. v. S. (1975); 798-799 Beck Washington, 541, v. (1962); U. S. Stroble v. California, (1952). 343 U. S. 191-194 Inc., also Houchins KQED, (1965). 438 U.
539-540 See S. (1978) (opinion joined by 9-15 and J., C. White Burger, id., “The JJ.); concurring). J., at Rehnquist, (Stewart, guarantee First and Fourteenth Amendments do by generated of access information or controlled right a they guarantee press any nor do basic government, Con- superior public generally. of access to that of the press stitution does no more than assure the Ibid. government once equal opened access its doors.” has emphatically rejected proposition this has Thus, Court ante, concurring in opinion, advanced Powell’s Mr. Justice consti- that the Amendment is some 400-401, First sort requires opportunity tutional “sunshine law” that notice, heard, governmental pro- and substantial reasons before a may be ceeding press. closed to the Because this Court has refused to find First Amendment of access in today’s lower should past, courts not assume that after they by procedures employed decision must adhere in trial court or to case those advanced Justice Mr. in his separate opinion running order to avoid Powell my afoul First Amendment. To the view contrary, I and, think, majority the view of of this the lower Court, courts are no accept under constitutional constraint either to reject procedures. They those tradi- remain, the best tion our federal free system, to determine for themselves question open Hope- whether to or close proceeding.2 2My suggests concurring opinion Brother Powell in his I am wrong stating. 'Ante, in so at 398 n. 2. He the four dis believes that expressly reject views, post, senters —who his First Amendment who, instead, rely analysis repudiated by on a Sixth Amendment that is majority today join any subsequent of the Court him in case to —will impose ability constitutional limitations on the of a trial court to close judicial proceedings. disagree I with Mr. Justice Powell for two reasons. First, commonly arising regular a matter so in the administration of justice, my lightly impute criminal I do not so Brother Powell willingness ignore four in this dissenters case the doctrine stare *32 accommodating com- question they will decide the fully, far as the But so judicious in a manner. peting interests us, is for not question them, is concerned, Constitution resolve. Been- Me. Justice with whom
Mu. Justice Blackmun, join, Maeshall Me. Justice and Me. Justice nan, White, part. part dissenting concurring I I II but opinion concur in Part of the Court’s dissent I join also cannot opinion’s subsequent Parts. ante, at “question presented,” Court’s phrasing 370-371, mur- publicity Clapp distress concern with the its der area. County, Y., received the Seneca N. I I
Today’s it, is an unfortunate one. decision, as view temptation fear that surrenders to the to overstate Court pre-August and overcolor the actual nature publicity; that it a strict and flat result; reaches for process ignores important sig- antecedents and nificant developmental features of the Sixth Amendment. The result per is an inflexible se as Me. Rehn- rule, Justice quist so appropriately observes in separate concurrence, his ante, 403-404. That rule is to the effect that if the defense prosecution merely and the agree to have the excluded from suppression hearing, judge and the trial not does resist —as trial judges prone do, since nonre- sistance is easier than resistance —closure shall take place, and there is nothing prevents the Sixth Amendment join decisis and to with him in some later might decision to form what fairly be called an quintuplet,” “odd agreeing authority of trial judicial courts to close proceedings subject to limitations stemming from two different sources in the Constitution. But even if this occur, very were to diversity necessarily of views that would be re- any fected in disposition such me, practical would seem to as a matter, place outside imposed by limits the United States Constitution all but the closing judicial most bizarre orders proceedings sort of orders —the spawned saying which have that “hard cases make bad law.” *33 im- the The result that agreed upon event. happily
that of (as part press a of and the portant interests cast rejected are and public) open proceedings judicial that significance. aside little value or as of is without approach easy I this but wooden think Because intendment history or in support legal either I Sixth dissent. Amendment,
I does 371-377, The of facts, Court’s review the ante, innocuous nature face and up routine, placid, comparative their and, case indeed, news articles about supply missing: I infrequency. attempt what filing 3 of the newspapers August both on reporting papers the first time either the two of the indictments was nine July since any had carried comment about the case story report- days each carried August 6, paper before. On preced- on the ing of Greathouse and Jones arraignments ing day. story Clapp appeared Thereafter, no about the case Novem- petitioner’s papers suppression until the on hearing hearing 4. for 90 there was days preceding ber that Thus, story July no From when the first publicity whatsoever. different August period until of 18 appeared, days, eve- printed articles were in the two Because the papers. usually substantially paper reprinted duplicated ning days were articles on different there (cid:127)morning story, 18-day containing during period, evening story with the days story little differed from on the 5 morning appeared papers. that accounts both no dispute there can be whatsoever Furthermore, entirely straightforward reporting stories consisted almost investigation Clapp’s disap- facts surrounding and con- charges. the arrests stories pearance, “editorializing” tained no fairminded nothing person journalism. Only could describe as one sensational picture appeared; Clapp was a photograph accom- There is printed by the Times-Union. panied story the first placed were that the stories nothing in the record indicate murder up paper play on the or within the so page entirely stories Headlines factual. The investigation. were connection with relatively They only in appeared were brief. indica- investigation, they gave no development popular tion interest in case. being published to sustain DePasquale on suppress Judge The motions to came before Despite publicity on 4. in the November the absence of newspapers defendants, for three counsel both months, hav- hearing previously commencement of the and without *34 ing do, indicated their so asked intention to for the exclusion all press present members and in the courtroom. They urged grounds going as their motions “we are to take evidentiary may matters into consideration here that or may not be forth a brought subsequently App. at trial.” 4. being After reminded the court that the defendants a had constitutional to ex- and that such clusion “does rights, constitutional abridge rights, of the defendants,” joined by Greathouse’s attorney, Jones’ “I fully stated: lawyer, your understand that, Honor, but this is not trial, it is I think the dilatorious hearing, [sic] effects far outweigh Id., rights.” constitutional at 5. The then Attorney. court turned the District prose- cutor indicated that he did not wish to be heard respect with to the motion only: “I said stated earlier that I thought it was up to the and I oppose would not defense, they what wished to do.” Ibid. Thereupon court, without further inquiry, granted the motion for closure. said It that “it is not the trial of the matter” and that may “matters up come in the testimony of the People’s witnesses that may prejudicial Id., defendant.” at 6.
We therefore have a situation where the two defense attor- neys suddenly and without notice moved that the suppression hearing be and where closed, the prosecutor, obviously taken off guard and having no particularly strong any feeling, or acquiesced.
considered position, credit, to its court, sensitive public pro- about of the rights defendants ceeding, even “it though thought is not the trial obviously matter.” The impressed court was not with brooding presence possible com- prejudicial publicity. Its ment was “evidentiary may up . matters come . . may be prejudicial.” It imagine anything difficult less sensational in a murder context.
Yet this all that the possesses justify descrip- Court its tion question presented as one in the context of agreement by the accused, judge the trial prosecutor, to have “in trial,” ante, closure order to assure a fair at ante, hearing and the attorneys one where, “defense argued that buildup publicity unabated had adverse jeopardized the ability of the a fair defendants receive trial.”
I find little the record support tends to either of those descriptions of such serious consequence. There is no reference to or inference of buildup an “unabated of adverse publicity.” All the attorneys defense spoke were “the dilatorious effects” of “evidentiary may matters . . that . brought not be forth subsequently App. at a trial.” 4.5, Rehnquist Ante, notes this thin concern. Justice Mr. *35 403-404. The lawyers defense representing were their clients, of course, and perhaps were properly they overcautious, but certainly favored the court with nothing “unabated about buildup publicity” adverse prevented that must be “in order to assure a fair trial.” fairness to the today, Court its colorful allusions to what it place assumes took when the motions presented were on 4 may November be attributable to comments in opinion of the majority of the New York 1 Appeals: Court of
“At the a pretrial commencement of suppression hear- judges Two of the six who heard the ease in the New York Court of Appeals They dissented. would have found the order by entered buildup an unabated attorneys argued defense ing, their clients’ already jeopardized had publicity of adverse 370, 375, 43 Y. 2d N. fair trial.” ability to receive E. 2d 546. N. known were not details,
“The however, E. 550. Id., 2d, 372 N. at curiosity at 381, intense.” was the presump- on to rule majority New went York public knew raised in case because closure was tion of caught “had been Jones respondents Greathouse and crime,” Michigan with fruits by police ‘red-handed’ they made “had “widely was known” because it to” York. returned New incriminating being statements before found level Ibid., N. 550. court that the 2d, And the E. necessary pre- concern” “legitimate public to overcome had been sumption closure not demonstrated: by “Widespread public media satura- awareness kindled curiosity. does Here the legitimize public’s tion mere judicial ac- concern prosecutorial was not focused on if out of countability; any, had occurred irregularities, chiefly The interest of the one of State. curiosity active with local respect happen- to a notorious Ibid., 372 ing.” N. E. at 550. 2d, all it is With difficult me to extract of that all respect, the casual comments hearing Judge made before Jones, DePasquale. People Cf. N. Y. 2d 391 N. E. 2d 1335 (1979). Court confronts in
This this case aspect another re- curring conflict that arises whenever a defendant in criminal case asserts that his right to fair trial clashes with in general, press and of the to an particular, County type Court to prior be of the prohibited restraint Nebraska Stuart, Press Assn. v. 427 U. S. (1976), have would affirmed the Appellate ground Division on that the support entry evidence did not *36 370, 382, 43 2d N. Y. 544, 372 N. E. order. 2d 551.
411 open aspects prob- It other proceeding. has considered lem in whether deciding publicity sufficiently prejudicial deprived Compare have of a Murphy defendant fair trial. Florida, v. Maxwell, 421 U. 794 with (1975), Sheppard S. v. 384 (1966). U. 333 recently S. And it examined extent to which the First and protect Fourteenth Amendments news organizations’ rights to in- prior free from publish, restraint, formation learned in open during pretrial suppression court hearing. Stuart, Press Assn. (1976). Nebraska v. 427 U. S. But the Court not yet has addressed the issue raised precise by this case: whether and to what extent the Constitution prohibits the States from excluding, request at of defend- ant, the public id., members from such a hearing. See id., 564 n. 8; n. 11 J., concurring judg- (Brennan, ment) ; Times-Picayune Publishing Corp. Schulingkamp, v. 419 U. 1301, (1974) S. chambers). n. J., (Powell,
It clear that this case does type prior not involve the restraint that was issue cases like Nebraska Press. Neither County Court nor Appeals the Court of restrained publication or of, comment upon, already information known press, or about in general. the case here, issue then, prior not one restraint on but press is, rather, one of access to a judicial proceeding.
Despite Mr. p. concern, ante, Justice Powell’s Court heretofore has not does found, today find, First judicial Amendment govern access or other mental proceedings. See, g., e. Nixon Warner Communica Inc., tions, Procunier, U. S. 608-610 (1978); Pell v. 417 U. (1974). S. One turns then, instead, provision of the Constitution speaks directly most question of access judicial proceedings, public- namely, provision of the Sixth Amendment.
A language familiar of the Sixth Amendment reads: “In all criminal prosecutions, enjoy accused shall *37 412 provision the tra- public trial.” This reflects speedy and “public is system justice
dition of our of criminal that trial pub- is transpires in the room event” and court that “[w]hat 374 Craig (1947). 331 property.” Harney, 367, lic v. U. S. in the com- notion, deeply as “the rooted reflects, well, And it ” justice.’ of satisfy appearance mon law, ‘justice must States, quoting Levine 610, (1960), v. United 362 U. S. States, 14 (1954). v. 11, United S.U. Offutt More of criminal importantly, requirement that a trial proceed- public judicial case be our secret embodies belief that liberty. ings public would a menace is rooted justice of “principle cannot behind walls survive silence,” Maxwell, Sheppard 384 U. and S., v. In re Anglo-American trials,”
“traditional distrust secret Oliver, (1948). accepted 333 U. This S. Nation’s practice providing open of both trials federal and state always recognized against courts “has been a safeguard as attempt employ persecution. our courts as instruments of knowledge every subject criminal trial is to contem- poraneous public review the forum of is an opinion effec- tive possible judicial Id., restraint on abuse power.” 270.
The public-trial guarantee, moreover, ensures judges participants but all justice system the criminal are subjected public scrutiny they public’s conduct the busi- ness prosecuting publicity “guards against crime. This miscarriage justice by subjecting the police, prosecutors, judicial processes to extensive scrutiny and criti- cism.” Sheppard Maxwell, v. S., Publicity U. at 350. guarantee “serves to the fairness trials to bring to bear beneficial effects of scrutiny upon the administra- justice.” tion of Cox Broadcasting Corp. Cohn, 420 S.U. (1975). “The commission of prosecutions crime, resulting from it, judicial proceedings arising from the prosecutions . . . are without question legitimate events of Ibid. such Indeed, information public.”
concern to the government in which importance type to our “of critical citizenry judge proper final conduct Id., few cases in which business.” at 495.2 Even in those out publicity permitted Court has limits on courtroom em prejudicial of concern for has taken care to coverage, it *38 been phasize publicity judicial always of “has proceedings that regarded judicial the of administra as handmaiden effective Maxwell, Sheppard especially in tion, the criminal field.” v. Texas, Estes in S., 532, 384 U. And 381 541 at 350. U. S. v. has (1965), public the Court found that true that the “is the informed in be as to what occurs its courts.” here, the author opinion Stewart, of the Court’s Mr. Justice Estes, id., in stated dissent in 614-615: suggestion at “The upon there public’s right goes are limits the to know what inon the courts deep causes me concern.”
2Although
dealing
Amendment,
I am
here with
the
access under
Sixth
it is
emphasizing
protection
of note that this Court’s decisions
worthy
the
judicial proceedings
afforded
of
the
also
reporting
under
First Amendment
point up
grave
relating
the
concern
information
the administration
justice
widely
Communications,
of criminal
available.
In Landmark
Virginia,
example,
Inc.
(1978),
v.
trial conducted in history country,” during S., U. court in courts-mar- exception of cases omitted), with (footnote proceedings. court juvenile semiprivate conduct tial even Id., Nor uncover record “of 12. could it n. England abolition of the one such secret criminal since strong 1641.” Ibid. This tradition Court Star Chamber recogni- publicity proceedings, in criminal and the States’ In re importance public trial, tion led the Court to conclude that Sixth Amendment’s of a guarantee Oliver public trial, applied through the Fourteenth States Amendment, proscribed through type conviction of secret *39 process at issue that case. public-trial concept
The embodied Amendment the Sixth system remains fundamental and essential of our feature justice in both criminal the federal state courts courts.3 Due Process Clause of the Fourteenth Amend- 3Forty-eight fifty protect right States to a trial in one way Forty-five provisions specifically another. have constitutional guaranteeing right: 1, Const., §6; Const., I, Ala. Art. Alaska Art. 2, 11; Const., 11, 24; Const., 2, 10; Const., Ariz. Art. Ark. Art. Cal. §§ § § 1, §15; Const., 2, §16; Const., Colo. Art. 1, §8; Art. Conn. Del. Art. 1, Const., 7, 9; Const., 1, Art. 16; Const., 1, 1, Fla. Art. Art. Ga. § §§ § 11; Const., 1, 11; Const., 13; Haw. Art. 1, Const., Idaho Ill. Art. ¶ Art. § § 1, 8; 1, Const., 12,13; Const., 1, 10; Const., Ind. Art. Iowa Art. Kan. §§ § § Rights, 10; Ky. Const., 14; Const., Bill Rights, 11, Bill of La. § §§ 22; 1, §§16, Const., §6; 1, Const., 1, §20; Art. Me. Art. Mich. Art. Const., 1, §6; Const., 3, 26; Minn. Art. §§24, Const., Miss. Art. Mo. 1, (a); 2, Const., §24; Const., Art. Mont. 1, §11; Art. Neb. Art. §18 Const., 1, 10; Const., 2, 14; N. J. Art. N. 1, M. Art. C. Const., ¶ N. Art. § 18, 24; Const., 1, 22; 1, N. D. 13, Const., 10, 16; Art. Art. Ohio §§ §§ §§ Const., 2, §20; Const., §11; Const., 1, Okla. Art. Art. 1, Ore. Pa. Art.
415 con- ment criminal act in requires that cases States formity provision Amend- public-trial with the the Sixth 145, ment. Duncan v. (1968); U. S. Louisiana, Hamlin, Argersinger (1972). v. S. 25, U.
B By its terms, literal Sixth Amendment secures the case, to a to “the accused.” And in this sought accused ones were the who to waive that right, hearing have the removed from the in order pretrial guard against publicity possibly prejudicial be that would hold them. Court urged, accordingly, respondents decision of to submit to Greathouse and Jones private hearing is controlling.
The Court, previously however, recognized has beyond Sixth implicate Amendment interests those In Barker Wingo, accused. (1972), S.U. unanimously example, Court found this to with be so respect to a “In speedy gen- trial. addition to the persons eral concern that all according accused be treated decent fair pro- there is societal procedures, interest viding speedy separate trial which exists and at from, 11; §§9, I. Const., 1, §10; Const., 1, 14; R. Art. 9, S. C. Art. S. D. §§ Const., 6, 20; 7, 17; Art. Const., 1, 9, Const., Tenn. Art. Tex. §§ §§ 1, 10; Const., Art. 1, 11, 12; Utah Const., 1, 10th; Art. Yt. Art. § Ch. §§ Const., 1, 8; Const., Va. Art. 1, 22; Wash. Art. Ya. Art. Const., W. § § 14, 17; 1, 7; Wyo. Art. Const., Const., Wis. Art. 8. §§ § § In addition, Hampshire New has held Due Process of its Clause Constitution, 15, requires Pt. Art. public. criminal trials held in *40 Helgemoe, 841, Martineau v. 117 (1977). H. 379 842, 1040, A. 2d 1041 N. Maryland by judicial requires open proceedings. decision Dutton v. State, Md. 373, (1914). by 123 386-387, 91 A. 422-423 New York provides open for statute N. Y. Rights Law, trials. Civil 12 Art. § (McKinney 1976). Only appear provision Masschusetts and Nevada to have no state But Marshall, trials. see Commonwealth v. Mass. (1969). E. 2d N. Id., at accused.” interests opposition to, times in reject a led Court interest separate This 519. his assertion defendant’s made the would have rule that whether deciding in factor the critical right speedy-trial on the entirely depending rule for a denied, had been right “society that into account take failed to defendant’s demand Id., prosecutions.” swift bringing particular interest has a 527. Amend- of the Sixth provisions is true of other The same States, (1965), Singer United 380 U. S. ment. right constitutional rejected that, a contention since Court an absolute accused, he had right of the jury to a was the trial bench if considered a trial by judge a he to be tried alone right ap- a mechanistic waiver Rejecting advantage. his to be to by jury at history of trial the Court reviewed the proach, practice under the Constitution. English common law right a had common law did indicate that the accused in- Although were isolated compel a bench there trial. Ameri- recognized such had been where stances “general recognition no of a Colonies, can the Court could find by by jury. instead of right to be tried the court defendant’s would recognition right, if there had been such Indeed, III why to understand Article and the Sixth Amend- be difficult recognized option.” were not drafted terms which ment Id., under Constitution simi- Noting practice at 31. independent bench larly trial, no established jury provision in Ill, Court held neither the trial Art. empowered nor the Amendment an accused to 2,4§ Sixth compel opposite by he guaranteed specifically what the Constitution. Singer recognized
The Court United Patton v. States, 281 276 (1930), U. it had held a defendant S. jury could waive his but right, proffered it held that a Crimes, except “The Trial of all Impeachment, in Cases of shall be Jury.” *41 Patton, Quoting in given
waiver need not be effect all cases. by jury been observed: has U. the Court “Trial S., by 'normal and . . . established the Constitution preferable fact criminal disposing mode of of issues of ” “the bald rejected cases.’ 380 U. S., at 35. Court proposition that to a in a criminal case compel defendant contrary to his jury to undergo against trial his will is Id., Rather, right process.” to a trial or at 36. fair to due right con- “only the Court a defendant’s constitutional said, by jury.” cerning impartial the method of trial is to an Ibid. the Court concluded the Constitu- Accordingly, impediment no conditioning grant request tion was to for a upon bench trial consent of court Government.
In Singer, reasoning recognized Court also that similar applicable Amendment. provisions other to the Sixth ability ordinarily “The right waive a constitutional does not carry right upon with it the of that opposite insist Id., right.” at 34—35. For accused example, although right “can his waive to be tried and district where State the crime was all committed, compel he cases trans- cannot Id., fer of the case another district.” 35. he While “can right by his against waive to be confronted the witnesses him,” thereby compel he prosecution try cannot “to stipulation.” by case most And, here, “although relevant defendant under some his can, circumstances, waive constitu- tional to a right right he no trial, has absolute Ibid. compel a private trial.” Faretta only California, one
Indeed, case, apparently, 806 (1975), U. S. this Court ever inferred from has fairly Sixth Amendment a be termed the Faretta, “opposite” of an explicit guarantee. Court found did the Amendment secure the assistance counsel to criminal defendant prosecution, but, it also him the inference, granted to self-representation. *42 stress careful to that In the Court ruling, however, so was ability waive a holding to Sixth Singer’s that the followed right the automatic right carry with it Amendment did not not, rights of upon opposite. “The inference to insist its 819 n. 15. S., of mechanical U. at course, a exercise.” the By inferring right self-representation, existence of a to right mechani- “suggest not mean that this arises Court did cally power right from a to waive the to the assist- defendant’s right of counsel. On must contrary, ance ... history of con- independently found in and the structure Id., Following ap- 819-820, stitutional text.” at n. 15. of proach Singer, of Court found “the structure then, the English colonial Amendment, the Sixth well as . as . the . from jurisprudence emerged,” which the Amendment independent of an S., right U. established the existence self-representation. C Singer, Barker, is thus
It clear and Faretta that fact the in right public Sixth Amendment casts the trial permit terms of the the accused sufficient to is not inference may compel private proceeding accused simply by waiving right. Any compel such private proceeding must have independent some basis Sixth Amendment. order inde- to determine whether an pendent exists, basis we should as examine, the Court did Singer, the common-law and public- colonial antecedents of the provision trial as well the original understanding If Sixth Amendment. no such we found, basis should then turn to the function of system trial in our so that we decide under what if a trial court circumstances, any, may give effect to a attempt right. defendant’s to waive his in In Court, Oliver,
1.
re
recognized
inescapable by quite jury, concomitant common law rights practice accused, that the public. conduct all criminal proceedings Early “open-air were Anglo-Saxon proceedings criminal them.” meetings of the freemen who were bound to attend (1904) F. Pollock, Expansion of the Common Law (hereinafter Pollock). by compurgation Criminal trials were place the assembled ordeal, invariably took before many of whom attend. W. community, required were 1927) A History (4th 7-24 Holdsworth, English Law ed. (hereinafter Holdsworth). Anglo-Saxon tradition This *43 conducting judicial proceeding ill-managed “like an Pollock the meeting,” 30, persisted after the when Conquest, Norman kings England system introduced in the Frankish of inquests by jury. royal jus- means of a conducting Wherever was introduced, jury system accompanied tice the and both it, spread rapidly throughout England years in the after 1066. 1 rapid spread royal Holdsworth 316. The of courts led to the replacement always trial, older methods of which were public, by jury with trial with procedural change. little jury simply “was substituted for and methods], [older was adapted with as change possible posi- little as to its new Id., tion.” at royal justice 317. This substitution of for tra- ditional by law served the Crown’s “enlarging interests the king’s jurisdiction bringing and in profit well-earned fines and otherwise to the king’s exchequer, way and promot- the best ing those ends was to develop develop the institution, let along itself, the lines of least resistance.” Pollock 40. the common law Thus, inception from its wedded Anglo-Saxon of publicity, tradition the “ancient id., of justice public,” are was in turn 61, rul'[e c]ourts strengthened by hegemony royal courts soon estab- of justice. over the administration lished Bentham noted that by this accommodation of the Anglo- common law to the practice “publicity Holding open courts, Saxon became ... in- natural, and, good it, length would have fortune justice. separable, English Bentham, concomitant” of J. (1827). The Rationale of Judicial Evidence 584-585 Publicity intrinsically thus became associated with the sit- “In tings royal very courts. Coke noted that words curia Domini Regis” (“In King’s Court”), the Statu- tum de ch. Marleberge, 1, enacted Hen. indi- proceedings. cated Institutes of Laws Coke, E. England (6th 1681).5 ed. commentary6 This and other 17th cen- indicate that tury concept of public firmly trial was established under the common law. Indeed, there is little record, if any, secret criminal or proceedings, civil, having occurred at English time in history. known Apparently, not even the Court of Star the name which Chamber, has been linked secrecy, with hearings private. conducted 5 Holdsworth 156, and nn. 5 and 7, 163; Right Radin, The to Public Q. Trial, Temp. L. (1932). 386-387 un- Rather, broken tradition of the English common law was criminal trials were conducted “openlie presence Judges, 5 “These great words are of importance, for ought all Causes to be heard, ordered, and Judges determined Kings before of Courts openly in Kings Courts, persons whither all resort; no *44 chambers, private places: or other Judges for the Judges are not chambers, Courts, but of open Court, and therefore in parties where the Attorneys Councel and attend, ought orders, rules, awards, Judgments to be given, made and and not in private places chambers or other . . . . Nay, Judge that that ordereth or ruleth a Cause in chamber, though his just, yet his order or rule be Law, (as offendeth he the appeareth) here it because he doth it not in Court.” 6See, g., e. Smith, República T. Anglorum 79, (Alston De 101 1972), ed. published in author, where the contrasting in English the common system law with the civil law Continent, the England stressed that in adjudications all open were as a matter of course. See also Trial John Lilburne (1649), reported in 4 How. St. Tr. 1274 (1816). or Justices, enquest, and so manie as will prisoner, depositions
can come so neare as to heare and all and wit- it, given nesses all men heare from the mouth aloude, that depositors is saide.” De Smith, witnesses what T. Anglorum 1972). República (Alston ed. light of this tra- history, it most doubtful
dition of publicity rights ever was with associated accused. in practice conducting the trial was established as a English justice long feature of before rudimentary rights. defendant was afforded even the most during century English For Civil example, preceding kept and could War, defendant was confinement secret prepare not provided defense. He was not with counsel or given prior either before at the trial. He was no notice of charge against probably evidence him. He could call witnesses on his if no Even he he had could, behalf. procure means to their attendance. were not nec- Witnesses essarily confronted prisoner. originals with the Document required produced. were not to be There were no rules evidence. The accomplices confessions of admitted were against regarded each other and specially cogent evidence. compelled And the defendant was to submit to examination. A History J. Stephen, England the Criminal Law of (1883). itself, Yet public. without exception, is not surprising,
It both Hale and Black- therefore, identifying stone, publicity the function of common law, open-trial requirement discussed not in of individual terms liberties but terms of the effectiveness of process. the trial recognized Each publicity as essential of common trial at law. And emphasized requirement each that evi- given open dence be court deterred since perjury, “a witness may frequently depose in private, which he will be testify ashamed and solemn tribunal.” Blackstone, *373. W. Commentaries See M. Hale, His- tory of the Common England Law of (6th 1820). ed. *45 was an effective publicity that Similarly, recognized both it publicity made certain judicial abuse, since check on be injustice will partiality his PARTIAL, “if be judge Black- Id., 344. See 3 W. by-standers.” to all at evident *372.7 stone, Commentaries “the publicity Bentham stressed that was vein, the same de- of and of the decisions safeguard testimony, effectual
most ought it; justice,’.it on soul of to be extended pending is the Bent- to all causes.” every part procedure, J. (1825). Bentham A Treatise On Judicial Evidence ham, the most effectual that, all, publicity believed above was against all other safeguard judicial without which abuse, judicial power on of became ineffectual. checks misuse Bentham, (1827). of Evidence 525 The Rationale Judicial J. publicity importance And he contended that such especially in criminal justice, cases, the administration dispensed request it should be with at the even party (viz. reason is defendant. “The . .. there is interested whose large) might, interest means privacy question, and sort of or less conspiracy, more persons between the other in- (the judge concerned explicit, cluded) Id., be made a sacrifice.” 576-577. English
This concerning common-law tradition public trials of which the provision grew out Sixth Amendment made is not up English legal early history “shreds state constitu- statutory tional and provisions,” California, see Faretta (dissenting at 843 S., opinion U. describing of self- representation), pieced together produce the desired result.
7Similarly, General, Hawles, Solicitor Sir John in 1685 in his upon Trial, Mr. Remarks Cornish’s 455, 460, How. St. Tr. stated: “The reason that are, ought all matters law to be transacted publicly, is, any person, That concerned, unconcerned as well as may, as curiae, better, court they amicus inform the error, if he thinks are in may justice done: and the reason that all trials public, is, are any person point fact, inform in though not subpoena’d, that truth may be discovered in civil as well as criminal matters.”
423 other analysis of may Whatever be said of the historical an un- history Sixth Amendment here reveals provisions, pro- English open judicial broken at common of tradition law one ceedings in criminal we “have publicity, cases. changes” any persisted through which has all tradition, rate, Anglo-Saxon through development of the times the modern common law. Pollock 31-32. See E. The Jenks, (6th of 1967). Book 73-74 is no English Law There ed. of evidence that trials ever were conducted sort .criminal private common request whether at the law, objection. defendant or over his strong And there is evidence public developed the which trial, procedural before other routinely now rights widely per- afforded the was accused, serving important relating ceived as social interests, integrity of trial process, apart the that exist and con- from, ceivably in opposition the of to, interests individual I find Accordingly, support defendant. no in the common- of public-trial law antecedents provi- Sixth Amendment for guarantee sion the view that of a trial carries it a compel with correlative private proceeding.8 8 England continuing development notion common-law of years publicity during founding since the of our own Nation casts upon publicity system justice. light the function of in our example, For privilege judicial in a series of establishing reporting cases for the proceedings, recognized: “Though publication the courts of such may proceedings disadvantage be to the particular con individual yet cerned, importance it is of vast proceedings universally general advantage Courts Justice be should known. country having proceedings public, these made more than counter private persons balances the inconveniences to the whose conduct subject King Wright, proceedings.” 293, 298, of such v. 8 D. & E. Rep. (K. 1799). Eng. 1396, Duncan, 101 1399 B. 7 See Davison v. El. & 229, 230-231, Eng. 1233, Rep. (Q. 1857); 119 Walter, Bl. 1234 B. Wason v. 1868). (Q. 4 L. R. B. my purposes Important Daubney for Cooper, is the decision in v. (K. Eng. Rep. 1829). B. & C. B. upheld There the court in an damages spectator, ejected action verdict who had been early common-law view the English 2. This through largely Colonies, American transplanted to the shaped views writers whose common-law influence of the were Institutes “Coke’s legal systems. early American every by virtually student Colonies read in the American (1967), Carolina, North 386 U. S. law,” Klopfer Hale and impact of no citation is needed to establish *47 charters Early colonial legal thought. colonial Blackstone on proceedings were an essential open reflected the view that a concept of they justice, of cast quality of a court system jus- of a of the trial in terms of characteristic first right Indeed, than of a of the accused. tice, rather spoke in terms provision appear America public-trial attend trials: right accused, of of the not the public, tryals of justice courts of for publick all “That inhabit- any person persons, civil or or causes, criminal, may freely into, come ants of the Province said at all or present, and hear and be courts, attend the said tryals jus- any passed, such as shall be there had or that man- may any in a corner nor in covert tice not be done Jersey Agreements of New ner.” Concessions and West in 1 Bill quoted Schwartz, The (1677), XXIII, B. ch. A Documentary History (1971) (hereinafter Rights: Schwartz). ejected proceeding, against magistrate had him.
from a criminal who The court stated: pro- qualities justice a court of its is one of the essential
“[I]t ceedings public, parties who be desirous of should be and that all on, place purpose,— for that hearing what is if there be room in the going provided no they interrupt proceedings, there is provided do removed, why they right present specific should be a to be reason —have hearing going Id., Eng. Rep., purpose what is on.” at 440.
See also Scott v. Scott, [1913] A. C. 417, 438-439 (Haldane, L. C.), 440- Halsbury). (Earl Pennsylvania Frame of Similarly, Government many ways, which Professor as, Schwartz described “[i]n pro- of the Colonial documents most influential [one of] tecting provided rights,” individual Schwartz Id., colony Willian. “all at 140. open.” Penn’s courts shall be practice judicial This in criminal conducting proceedings cases in firm took hold all the American Colonies. crimi- any There no evidence that conducted colonial court nal any trials behind recognized closed doors of an compel private accused to a trial. casting public-trial
Neither is there evidence that concept terms of signaled departure accused practice from the common-law by granting the accused the power compel private proceeding. provision The first speak trial as an entitlement of the accused apparently was in IX Pennsylvania Declaration ¶ of Rights of 1776. “in prosecutions said that for crimi- It all nal a man hath a right speedy public ... trial.” offences, See provision Schwartz 265. The was borrowed almost *48 verbatim Virginia adopted Declaration of Rights, earlier the same with year, change: “public” one the word added. Virginia’s Declaration provided only had right accused “hath a to a speedy id., at ... trial.” See by 235. that, adding It doubtful single Penn- word, sylvania depart to intended from its historic practice by creat- ing by a waivable its defendant, at the time Rights Declaration of Pennsylvania was adopted, adopted also its Constitution of 1776, providing, in § 11courts 26, that “[a] 1 open.” shall be See Schwartz 271. And there is no evi- Pennsylvania 1776 dence that after departed prac- from earlier tice, by conducting either in private trials by recognizing power a in compel the accused to a nonpublic proceeding.9
9Although a number of States language followed the Virginia’s Declaration, only copied Pennsylvania Vermont by adding emendation “public” provision. speedy-trial word to the Const., Vt. Declaration Congress, First is no indication that Similarly, there to meant Amendment, the Sixth proposing in what became in creating power a by practice common-law depart from the The Constitution compel private proceeding. an accused to a public-trial did contain course, as not originally adopted, amendments proposed guarantee. though And several States only Declaration, Congress along Virginia lines of Dumbauld, The E. “public” trial. York See New mentioned (1957); Elliot’s Rights and, specifically, Bill 173-205 follow 1836). York (2d But New did not Debates ed. belonging Virginia’s right as one language by casting the accused; Congress propose urged rather that should speedy, providing an the “trial should amendment Pro- Amendments by impartial jury . public, . .”. 1 Elliot’s posed by quoted Debates, York (1788), New at 328.
I modeling pro- persuaded Congress, am thus Virginia posed cognate provision on in the amendment Declaration, merely what many urged, States had did Pennsylvania 1776, namely, word had done added the intending “public” language all Virginia without at thereby compel private pro- to create a correlative ceeding. Indeed, light practice the settled common law, say “if recognition one also here that there had been why of such it would be difficult to understand right, ... Sixth Amendment recognized drafted terms which [was] States, Singer S., And, an option.” United v. U. at 31. language California, use the in Faretta Court (1777), quoted Rights again, 1 Schwartz 323. how- Once §X ever, doing depart there no evidence that so intended Vermont *49 practice holding public. from Indeed, the common-law in court Declaration, by adopted revolutionary haste, legislature Vermont in “virtually repetitiofn] Pennsylvania” verbatim was of’ the relevant [a] by It adding article. Schwartz 319. is thus doubtful that the word any “public” Pennsylvania, Vermont, more than intended to alter exist- ing practice. anyone
U. at 832: “If S., thought had that the Sixth Amend- ment, drafted,” departed principle the common-law of publicity undoubtedly in criminal would proceedings, “there have been some debate or But on the issue. there comment adoption none.” Mr. Justice writing when the Story, the Sixth memory living man, Amendment was within noted “in enjoy declaring, that the accused shall a speedy public to trial does . . Sixth . [the Amendment] but follow out the established common law in all course trials for always crimes. The trial is public.” Story, Com- J. mentaries on the (1833). Constitution of the United States
I consequently find no in development evidence public-trial concept in the American in Colonies and adoption of the Sixth to Amendment indicate there was any recognition country, England, more than a a private proceeding power compel private or a arising ability trial grant public out to waive the I indulge one. shall not in a mere mechanical inference that, by phrasing belonging trial as one the Eramers of the Amendment have accused, must meant the power accused to have the dispense publicity. with I thus 3. conclude that there no basis the Sixth for the I suggested Amendment that, inference. also find because there is societal interest trial separately exists from, opposition and at times inter- to, accused, Wingo, ests of the Barker v. S., cf. U. may give court attempt effect to an accused’s to waive his public-trial right only in certain circumstances.
The courts and the perceived scholars of the common law public-trial tradition as one serving protect integrity guard against of the trial and to partiality part on the generally court. same concerns are served today. protection against perjury publicity which opportunity provides, publicity and the offers to unknown witnesses make themselves known, necessarily do not serve *50 (Chad- Evidence Wigmore, § the defendant. See J. public has (hereinafter Wigmore). bourn 1976) rev. on truthful having prosecutions criminal decided interest this does not neces- complete records, interest, too, and and accused. sarily coincide with that of the judicial partiality serve protection against Nor does the provision public-trial true that the defendant. It is every from to which protect accused the abuses serves himself prone. the defendant secret tribunals would But or incom may partiality biased, of a corrupt, benefit can in favor tO'as well petent “for a result judge, secret Peyton, 352 unjust prosecution of a Lewis v. defendant.” (CA4 1965). F. 2d per- public to scrutinize
Open trials also enable the police prosecutors formance of the conduct and hear- particularly suppression Trials judicial business. propriety of ings typically questions concerning involve place conduct took hidden from police government Any part prosecution view. on the interest hiding police prosecutorial ineptitude or misconduct or keep proceedings coincide with the defendant’s desire private, with the result interest sacrificed from both sides. judicial proceedings
Public an important have educative well. role as The victim of the crime, family of the vic- tim, others who have suffered or similarly, others accused like crimes, have an interest in observing the course of a prosecution. Beyond this, however, the interest general public in observing operation jus- the criminal system. tice Judges, prosecutors, police officials often subject are elected are some control elected officials, and a main source of information how about these officials perform open is the trial. And the manner which criminal justice is administered in country is in and of itself of interest to all In Cox Broadcasting citizens. Corp. Cohn, about information S.,
420 U. it was noted that im- of critical system “appears us to be justice criminal *51 citizenry is portance type government to our in which the business.” judge proper public the final conduct appearance is the Important regard, of course, fair justice. they scrupulously hearings though “Secret — cannot reality suspect by Public confidence nature. —are long judicial decisions are important be maintained where in conclusive made behind closed doors and then announced with the court’s public, supporting terms the record Cian public decision sealed from view.” United States v. ability of the frani, (CA3 1978). 573 2d 851 835, F. depends courts to criminal laws in no small administer the. on part judicial remedies, the confidence respect acquaintance processes on with and delib Any Wigmore of those courts. 6 438. 1834, § erations thing impairs open judicial proceedings nature impede threatens to undermine this confidence and to ability of the courts to function. by societal values are funda-
These secured system justice on both state and federal mental they recognized large As been levels. have such, majority of both state10 federal11 courts have con-
10Nearly every recognized State that has considered the issue has strong maintaining open has interest trials. Most of these provisions have involved state constitutional modeled on the Sixth eases phrased public-trial guar in that in terms of Amendment g., Mobley, Jackson See, 408, 411-412, e. antee to accused. v. 157 Ala. Printing Lee, Commercial Co. v. (1908); 87, 590, 47 592 262 Ark. So. Post, Lincoln v. Denver 93-96, 270, (1977); 553 2d 273-274 S. 31 Colo. W. rel. 283, 285-286, 152, (1972); State ex Gore News App. 501 P. 2d 154 papers Tyson, Co. v. 777, (Fla. 1975); Gannett App. 313 2d So. 785-788 Corp. Richardson, 224, 49, (1978); 230-231, v. 59 2d 55 580 P. Haw. Pacific Beaudoin, (Me. State, 731, 1978); State Cox v. v. 386 A. 2d 733 Md. 3 Schmit, 139-140, State v. App. 136, 157, (1968); 2d 238 A. 158-159 273 Keeler, 800, State v. 78, 86-88, (1966); 2d Minn. 139 N. W. 806-807 52 p. 11 on [.Footnote 430] 430 years
sidered the issue over the
adoption
since the
Constitution.
Indeed,
pro-
those States with constitutional
Publishing
205, 218-219,
1080,
Mont.
Keene
(1916);
156 P.
1083-1084
Corp.
Court,
District
Keene
v.
959, 962-963,
261,
117 N. H.
380
2dA.
Allen,
State v.
(1977);
263-264
132,
73
157-160,
377,
N. J.
373 A. 2d
389-
State,
Neal v.
(1977);
283,
390
289,
294,
86 Okla. Cr.
192
2d
297
P.
Holm, Wyo.
State v.
(1948);
67
360, 382-385,
500,
224 P. 2d
508-509
(1950).
recognized
Several States have
such
interest under constitutional
provisions establishing open
g.,
White,
courts. E.
State v.
196,
97 Ariz.
198,
State,
Smith v.
903,
(1965);
398 P. 2d
(Del.
904
20,
317 A. 2d
23-24
Simpson,
Johnson
1974);
644,
(Ky.
v.
Brown v.
1968);
433 S.
2d
646
W.
State, 222
863, 869,
694,
Edens,
In re
(1955);
Miss.
2d
So.
299, 306,
Scripps
N. C.
Fulton,
E. W.
(1976);
S. E. 2d
9-10
Co. App.
160-169,
Ohio
(1955);
N. E. 2d
State
899-904
*52
Varney
ex
Ellis,
rel.
v.
522, 523-524,
149
63,
W. Ya.
142 S. E. 2d
65
(1965).
appears
precisely
Massachusetts
point.
have no case
But
Cowley
Pulsifer,
v.
(1884),
Supreme
431 guaranteeing on visions modeled the Sixth Amendment, literally public only to a has accused, there Fay, States ex rel. Orlando v. (CA2 press 967, 1965), 350 F. 2d 970 Croak, State and members of the bar v. were admitted at all times. 92, 94-95, composed 703, (1928), 167 La. 118 So. 704 a fair-sized audience Beauchamp always public present. of members of the The court in Cahill, Ky. 508, 505, 423, (1944), though v. it 297 180 S. 2d 424 W. recognized spectators trial court could exclude limited classes circumstances, in certain held that that court could not exclude a “rea portion attend, disapproved public” sonable who wanted to and it Callahan, 63, In State v. did Minn. limited exclusion that occur. 100 Hogan State, (1907), 110 342 2d N. W. and v. 191 Ark. 86 S. W. (1935), point upheld an ex Court does to cases where a court strictly public, though clusion of all the even there the exclusions were for periods objections limited of time. Those exclusions were over the they surely defendants, questionable today, are not under law Schmit, the Sixth Amendment but under state law as well. See State v. Printing Co. Minn., 805-807; Commercial 86-88, 2d, at 139 N. W. Lee, Ark., v. 93-96, 2d, 553 S. at 273-274. W.
Similarly, though statutory pro- the Court cites a number of state says trials, visions that contain limitations on it cites no cases provisions press decided under excluding those all the from suppression trials or hearings. exist, doubtful, If such eases which is they are few appears, rather, indeed. It been statutes have such interpreted permit spectators limited groups exclusion of certain trial, applied but seldom so as to result in blanket exclusion of press. State, Reeves example, For 2d 476, 483, So. Ala. (1956), court, applying provision the Alabama cited Court, ante, excluded, at 388 n. noted that had trial court *53 among others, press, radio, “members of the other news- television or parte gathering services, Ex Accord, . . . members of the bar.” [and] Rudolph, 392, 276 393, 486, (1964). Similarly, Ala. 162 2d So. 487 applying Georgia by the Court, statute cited the the of that State courts excluded, havé among others, press of the of the bar. members g., State, E. Moore 648, 151 651-652, 47, 49, 52 658-659, Ga. 108 E.S. (1921). Indeed, Moore, press the trial as court allowed the to attend “parties one of Id., 651, E., the at interest” not excludable. 108 at at S. upholding constitutionality 49. And in the statute the Massachusetts permitting crimes, Supreme exclusion in involving certain cases sex press Court noted Judicial that had not been excluded under statute, constitutionality and that it therefore need not reach the of the 432 provisions serve recognition such widespread
been as defendant.12 public as well those interests of the Clause I the Due Process therefore conclude public- incorporates insofar as Amendment, Fourteenth excluded, press if the statute in circumstances where the “even statute press. Com- interpreted permitting such could be exclusion” (1949). Blondín, 572, 455, 2d 564, 87 N. E. monwealth v. 324 Mass. by any provisions cited evidence that under of the other There is no including the public, the Court tribunals have excluded all members press, suppression proceeding. from a trial or that, though recognized In re some cases
The Court in Oliver even up publicity, court departures time allowed limited from no had press. gone S., 333 U. at had so far as to sanction exclusion of case, only 272 n. 29. time the New York in this Since courts departed others, in criminal perhaps some isolated have from tradition although some have criticized the Sixth Amend- cases. And commentators they approach establishing public right access, gone on ment have right provision rooted in the Constitution. to find that some other g., Note, Right Hearings, E. L. to Attend Criminal 78 Colum. Rev. 1308, (1978) (public right combination 1326-1331 access derived from Amendments). Radin, of the First and Even whose in this Sixth ideas “farfetched,” Wigmore Wigmore 1834, Professor described as area § public access, press though he criticized have would not excluded the any Radin, public Right and selected members of trial. Q. Trial, Temple 381, (1932). a Public L. 394-395 supra. example, cases cited in n. For Print See in Commercial ing Lee, (1977), Supreme Co. v. Ark. 553 S. 2d 270 Court W. public phase Arkansas held that the exclusion of the from the voir dire public-trial pro of a criminal trial violated State’s constitutional vision, though it, literally like the Amendment, even Sixth read in favor public The court accused. found that members of the have observing they strong proceedings, criminal in interest in inasmuch as society. against courthouses, prose And volve crimes it added that since cutors, attorneys paid funds, judges, and often defense are with every by personal “has to ascertain whether observation properly carrying responsibly its officials are out their duties in require capably justice, administering and it would unusual circumstances for this to be held subordinate to contention of a defendant that (or prejudiced thereof).” part Id., he is 2d, 274. S. W. *54 prohibits the States Amendment, of the Sixth provision ambit within the proceeding from a excluding public from full affording guarantee without Amendment’s the Sixth maintaining in public’s to the interests fair consideration and Four- I and And that the Sixth open proceeding. believe notwithstanding require this conclusion teenth Amendments the trial.13 it is who seeks to close the fact the accused D what circumstances whether and under considering Before must in private, criminal one proceeding court conduct through applied as Amendment, decide whether the Sixth first con- type pretrial hearing Fourteenth, encompasses at Denno, (1964), Jackson v. 378 U. templated S. speaks only Amendment, course, issue this case. County New public Both Court “trial.” Appeals emphasized York Court of exclusion apparently in the formal trial on the merits was not issue, public-trial provision Amendment’s belief the Sixth proceeding. or applies pretrial with to a force, all, less adopt Bar Association Standards the view American trials, public strong maintaining openness of criminal has a interest protects and that the Sixth Amendment that interest: speaks right sixth amendment in terms of the accused “The solely public trial, belong but does not accused interest,, pri- forgo as she . . The assert or he or desires. . defendant’s particular marily, treatment his or her case. While ensure fair public’s open includes generalized more interest trials a concern beyond justice goes The transcend- defendants, for to individual that. competence, integ- efficiency, is to ensure ent reason trials system. Thus, rity judicial the defendant’s operation the overall cannot to a trial in a criminal case willingness to waive the guard deciding just important It is factor. ... against leniency guard against undue as to undue harshness favoritism Project Justice, Fair on for Criminal or discrimination.” ABA Standards 1978). (Foot- p. 15 Press, 8-3.2, (App. Draft Free Standard Trial and omitted.) *55 if a State, may, I as it good find reason to hold that even Jackson v. a Denno suppression or other chooses to hold separate prior trial, the full the Sixth hearing and hearing. public-trial provision applies Amendment’s to that the suppression hearing the resembles and relates to First, in every particular. presented full trial Evidence almost is of those wit- sworn, means live witnesses testimony, are of nesses are subject cross-examination. Determination the ultimate in depends upon issue cases the trier most cru- evidence, credibility fact’s evaluation the is often Each has prevail, cial. side incentive to with the result of publicity the role as safeguard, as testimonial a mecha- nism encourage parties, witnesses, and the court a strict performance duties, conscientiousness of their whereby may and in providing means unknown witnesses just important become is known, for the suppression hear- ing itas is for full trial.
Moreover, pretrial suppression hearing critical, often is may be decisive, prosecution and it in the of a criminal case. If the defendant he prevails, will have dealt prosecution’s serious, perhaps case a fatal, blow; proceeding often then will be or negotiated dismissed on terms favorable to the defense. If prosecution successfully resists the motion to suppress, hope defendant have little success (especially where confession is in issue), with the result the likelihood of a guilty plea substantially increased. Clark, United States v. (CA2 475 F. 2d 246-247 1973); United Cianfrani, States 573 F. 2d, 848-851.
. suppression hearing only often is judicial proceed- ing of substantial importance place during takes a crimi- prosecution. nal very this case, the hearing from which the public was excluded only was the one which impor- tant legal factual issues the prosecution respondents Greathouse and Jones were considered. It pro- ceeding at which the conduct the police, prosecution, and scrutiny. Indeed, exposed itself was court felony prosecution every was processed,
when this case I criticism—-was ter- say without County Seneca —and Leg. Doc. merits. N. Y. a trial on the minated without 22d York, of New Judicial Conference the State No. characteristic Report (1977). This statistic Annual justice systems as whole,14 and federal criminal our state hearing suppression importance and it underscores *56 functioning systems. in of those the great of hearings such are considered Further, the issues par- of a the outcome beyond importance their moment involves, suppress typically A prosecution. ticular motion prose- by police and misconduct allegations in case, this Allegations this issues. cution that raise constitutional im- are of they may prove unfounded, to be although kind, defendant. to the to the as well as portance hearings do such evaluate interrogations and searches usually presents hearing therefore place public. The take police and learn has to about opportunity re- allegations that those conduct, about prosecutorial of laws themselves for enforcement sponsible breaking it. are highly exclusion of suppress
A often involves the decision so, may gen- this is the decision evidence. Because relevant Narcotics controversy. v. Six Unknown Fed. Bivens erate See York, Supreme city of Court for the New 89.7% by (25.6%) by plea of or were terminated dismissal all criminal cases (64.1%). Leg. Conference of the State guilty N. Y. Doc. No. Judicial Supreme (1977). Courts and York, Report 22d In the Annual of New were County the criminal cases City, outside New York Courts 93.4% Id., by (74.5%). (18.9%) plea of 56. guilty disposed of dismissal justice criminal noted, are characteristic of the these statistics As country. of Law system generally National Institute across the See Adminis- Justice, Enforcement Assistance and Criminal Law Enforcement (1978). States, App. tration, A in the United Bargaining Plea opinion). (1971) (dissenting 412-420 403 U. Agents, S. the basis on be made any such decision important is It so that all court, in open offered argument of evidence for them- may evaluate about the case care to see or read who of the exclusion. propriety selves suppres- pretrial conclude that a lead me to
These factors merits on the hearing equivalent close trial sion provision of the public-trial Sixth applying purposes apart from proceeding almost other Unlike Amendment. poli- all the suppression hearing implicates itself, trial I reason, For public. require cies that pretrial conduct a could would be loath to hold a State objection of the Denno over the hearing private Jackson v. public’s interest And for this same reason, defendant. fully openness judicial proceedings implicated public from when is the accused who seeks to exclude I hearing. such conclude that the Sixth Accordingly, conducting a prohibit Fourteenth Amendments a State request pretrial suppression hearing private, even at the given unless full consideration is accused, and fair first *57 open public’s protected Amendments, interest, trials.15 assuming
The Court even the Sixth and holds, however, that, embodying Fourteenth could be viewed as Amendments trials, public right right no there was common-law access public preliminary proceedings. of the members to attend I I not But have said that there was. have demonstrated I that there was attend trials. And have said importance because of the critical that, suppression hear- systems ings justice to our of criminal well as because —as similarity in form of a suppression the close to a full hearing position pretrial suppression The ABA Standards take the hear ings scope public-trial pro are within Sixth Amendment’s Project Justice, ABA on Standards for vision. Criminal Fair Trial and 1978). Press, 8-3.2, p. 15, (App. Free Standard and n. 1 Draft pro- public-trial Amendment purposes of the Sixth trial —for case in this at issue suppression hearing pretrial vision the part the trial. be considered must Court which the upon sources significant It They concern hearings. suppression relies do not concern defendant cause bind a probable hearings to determine Viet., 11 & 12 Act, E. Offences g., over for trial. Indictable (West 868§ (1848); Penal Code Cal. Ann. 42, §§ ch. criminal critical to the 1979). proceedings are not Supp. Such hearing suppression-of-evidence system way in the justice in form. itself of the trial equivalents not close they is and are pri- held in been might have proceedings such The fact that country does or in this England law vate at common hearings suppression pretrial my conclusion that detract grand juries— fact does the should not more than be, com- inquests at as coroner's proceedings such preliminary are mon law—were and secret. at com- unknown hearing, suppression the modern
Indeed, place took evidence such as type objection is a mon law, non- today in the case law, place as takes at common There during trial. open court objections, constitutional hear- suppression conduct that States is no federal requirement Pierce, 389 U. S. Pinto prior to trial. See ings made were objection I if such (1967). assume the course open during made in court would be during trial, it temporal I allow the unwilling am trial. have will be able to control whether factor to proceeding. access to the the accused not even must believe that also Court hearing. if, For suppression pretrial
has a to a ais there argument, assumes for the sake as the Court pro- Amendment to attend trials that Sixth public right *58 not extend right if that does why, to see it is difficult tects, concerned, public as the insofar preliminary proceedings the defendant insofar as proceedings such it should extend to many upon precedents And of the which the is concerned. proceeding to preliminary relies public Court denied a g., E. Indictable public. as well as Offences accused (1848). 11 & 42, § Act, Viet., ch. right public to a the Court
Alternatively, finds public is the of the accused and that only, trial no trials. Under public has enforceable interest long and the analysis, prosecution the defendant —so as the agree may surely close full on the merits as judge — pretrial as a suppression hearing. well anal- The Court’s ysis thus providing would allow closed trials as without well any for . . standards to insure that “the . [’s] pro- be informed as to what occurs has been its courts” tected. Estes Texas, S., 381 U. 541. am unwilling suppression to allow hear-
I, one, trials and ings way be closed with no to ensure interest that the protected. provisions other Unlike the of the Sixth Amend- public-trial ment, protected interest be adequately cannot prosecutor judge conjunction, connivance, specter with' the suppression defendant. The of a trial or hearing where a political party defendant same as the prosecutor and the judge whom are elected officials —both perhaps very they beholden to try— defendant are to obtains proceeding closure of the without consideration for the substantial interest at is sufficiently stake real reject to cause me to suggestion the Court’s parties given complete to dispose public’s discretion interest they see fit. parties The decision to close pro- ceeding such a circumstance, by suppression followed acquittal by vital evidence or destroys the bench, ap- pearance justice and undermines judicial confidence system in a way subsequent no provision transcript might remedy. But even where no connivance occurs, prosecutors judges have own their reasons for preferring closed proceeding. a prosecutor, And who seeks obtain a con-
439 while a seeks the same who error, judge free from and viction to assert may incentive rights, lack the defendant’s protecting a of a motion interest in the face some notion of a to close trial. criminal defendant
Ill of publication deny I that same do not time, At the irrepara- harm proceeding may open information learned defendant ability of a under circumstances, certain bly, context especially to obtain a fair trial. This is true deter- of pretrial hearing, information, of a where disclosure severely affect may mined to trial, be inadmissible Although public- Amendment’s rights. defendant’s the Sixth in favor provision strong presumption establishes a be proceedings it that all open require does not proceedings, defendant open deprive held court when do so would fair trial. imposes an No court has held the Sixth Amendment On open all times. requirement be absolute courts and levels have contrary, courts on both the federal state even recognized exceptions public-trial requirement to the objects who exclusion of when it is the accused to the the court portion thereof. clear that Thus, unruly spectators specta exclude or limit the number Texas, 532 and And in both v. 381 S. (1965), tors. U. Estes Maxwell, held Sheppard (1966), 384 S. 333 Court U. may place a court on the access of the elec restrictions types newsgathering tronic media in and certain particular, a number general, inside the courthouse doors. There are gone upheld instances where courts further have time. periods exclusion of the for limited Exam necessary confidentiality ples preserve it was are when Bell, “skyjacker profile,” of the Government’s United States v. 2d 409 U. (CA2), denied, (1972), F. cert. S. necessary Congress’ when it was to effectuate determination intercepted under confidentiality of communications Act III Omnibus Crime Control Safe Streets Title preserved prior seq., § S. C. et 1968, U. *60 lawfully inter- were determination such communications that (CA3 Cianfrani, 2d 835 cepted. United States v. 573 F. 1978).
I deci- express opinion on correctness such need no willing to they been sions. But illustrate that courts have where permit exceptions principle publicity limited to the necessary of the im- protect some other interest. Because portance clear whatever we attach to a fair it is that trial, in may prohibit restrictions on the Sixth Amendment access prevent another court from restrict- context, it does not a trial ing a such pretrial suppression hearing access to where restric- necessary tion is in order to ensure that a defendant be prejudicial publicity flowing denied a fair trial result from hearing.16 Branzburg Hayes, See v. 408 U. S. (1972). however, public’s
At the same in main- time, interest taining open requires rule exception courts narrowly be comports drawn. It with the Sixth Amendment require an accused who seeks closure to establish that strictly inescapably necessary in protect order to the fair- guarantee. finding trial That be in made the first must I instance, course, the trial court. cannot detail here 16This observation is confined to eases where the defendant to close seeks hearing ground rights on the infringed by that his fair-trial will be open proceeding. an express opinion I no as to whether or when proceeding subject may to the command of the Sixth Amendment objection closed over the defendant., Nor need I determine what interests other than support those of the defendant in a fair trial My an order of closure. rulings comments are also confined to within public-trial the ambit of the provision. express Sixth Amendment’s I thus opinion no about proceedings, juvenile such court, as those in not other subject requirement wise of the Sixth Amendment. See McKeiver Pennsylvania, (1971) 403 U. (plurality S. 540-541 opinion.)
all evaluating the factors to be taken into account I nor bal- predict defendant’s closure can how the request, every ance hypothetical should be struck case. ac- a mini- cused who seeks establish, however, closure should following: mum the
First, provide adequate support he should basis a find- ing probability irreparable there is substantial damage conducting to his will fair-trial result proceeding public. facts. showing depend This will on the IBut requires think it evidence of nature and extent publicity prior to the motion to close order to establish coverage a basis for court to further will conclude that sought cases, result the harm prevented. to be most this will impact jury pool. involve showing on the This seldom can with be measured but information exactness, *61 relating the of pool, coverage to size the the extent of media pertinent change the with of locality, which ease accomplished venire can be searching voir dire to instituted protect against would be relevant. The court also prejudice, should consider to sought the extent which information to be suppressed already to known and the public, publication extent to which of such if information, unknown, impact would have an of publicity the context has that preceded the motion close.
Second, the accused should probability show a substantial that alternatives protect to closure will adequately not his may to a fair One suggest trial. alternatives, numerous I but think the following should be considered: continuance, change severance, dire, venue, change venire, pe voir remptory challenges, sequestration, admonition ABA jury. on Project Standards for Criminal Fair Justice, Trial and Press, p. Free 1978). Standard 8-3.2, (App. Draft Stuart, See Nebraska Press Assn. v. 562-565; U. S., Sheppard Maxwell, S., U. at 354 358-362. n. One or may more these protect alternatives adequately the ac- need close the court interests and relieve cused’s in advance.17 proceeding alternatives hearings suppression
I for note, too, that but that to attend that would enable closure exist sought information limit would dissemination not so concern the issues hearings, At most such suppressed. or the wiretap, or of a confession much contents of a under circumstances but seized, of the evidence nature hear- Many material. obtained this prosecution which the with little risk could be conducted care, with ings, be disclosed. prejudicial information would that is a sub- that there accused should demonstrate Third, protecting closure will be effective probability stantial significantly prejudicial perceived Where against harm. might well already information has been made public, there closing pretrial hearing order justification be little prevent only the disclosure details. begin I with the emphasize that the trial court should assumption requires pre- Sixth Amendment suggests public’s The Court interest will be served ade quately by delayed transcript permitting access to the of the closed danger dissipated. proceeding once the fair-trial has accused’s adequately transcript, however, always presence A does not substitute for delay may proceeding Also, purpose at the itself. the inherent defeat public-trial requirement. yester Later events crowd news day’s proceeding practical out of the “As a matter . . . the view. unimportant coverage press element of time if is to fulfil its tradi *62 public bringing promptly.” tional function of the news to Nebraska Stuart, S., Press Assn. v. at Public restricted U. 561. access is precisely Bridges public height. at the time when interest is at its v. California, 252, (1941). Moreover, important event, 314 U. S. judicial prosecuting such as a election or the of attorney, selection a public ignorant judicial prosecu- occur when the of the details of Finally, although kept release, torial conduct. a record is for later when kept proceeding secret, impossible the itself is it is to know what it would pressure publicity brought have been like had the the been to bear on parties during proceeding the itself. suppression
trial unless hearing open conducted court ines- defendant carries his burden strict to demonstrate capable necessity for no need for a closure. There should be in- representative public public the to demonstrate that legitimate public terest is or or seeks access genuine, sup- something curiosity. out of more mere Trials and than pression legitimate hearings their nature are events of public public and the no threshold interest, need demonstrate respectability course, say, order attend. This is not to that a should court into heightened not take account interest importance community cases unusual large. office- prosecution important of an intensify holder could pro- interest observing court ceedings, should take into account that interest where it is warranted. It is also that as true, however, public interest intensifies, potential prejudice. so does the for
As a rule,
compati
the accused to
trial is
fair
ble with
public,
the interest of
in maintaining
publicity
of pretrial
“In
proceedings.
overwhelming majority
pretrial
criminal trials,
publicity presents
unmanageable
few
important
threats to this
right.” Nebraska Press Assn. v.
Stuart, 427
S., at 551. Our
U.
cases “cannot be made to stand
proposition
juror exposure
to information about
a state
prior
defendant’s
convictions or to news accounts of
the crime with which
charged
he is
presumptively
alone
de
prives
defendant of
process.”
due
Murphy
Florida,
v.
(1975).
U.
A
high
S.
publicity
level of
is not neces
sarily inconsistent with
ability
of the defendant
to obtain
publicity
fair
where the
has been largely factual
id.,
802;
Beck
nature,
Washington,
369 U.
542-
S.
(1962),
557-558
or where it abated some time prior to
trial. See Stroble v. California,
In those cases where a court has publicity found suffi- ciently prejudicial as to warrant on process reversal due grounds, publicity went beyond far normal bounds *63 444 Dowd, 717 for exam (1961), In Irvin v. 366 U. S.
coverage. barrage publicity about the de ple, there was a adverse confession to several plead guilty fendant’s offer to and his Louisiana, In S. burglaries. Rideau v. 373 U. murders and coverage of (1963), pretrial there was live television Texas, 381 U. S. And in Estes v. defendant’s confession. Maxwell, (1966), Sheppard and v. S. (1965), U. to such press, media, electronic intruded especially the proceedings an on courtroom that all semblance of extent sobriety decorum was lost. Press Assn. v. See Nebraska Stuart, Florida, 421 551-556; S., U. Murphy U. S., at 798-799. relatively such rare.”
But as these are Nebraska “[c]ases Press, 427 554. All in this S., area, U. our decisions together, pretrial publicity— . demonstrate that . “[t]aken . pervasive, even publicity inevitably adverse lead to —does provide an unfair trial.” background Ibid. These cases against which judge a trial must evaluate a motion to close a hearing ground on the open hearing pub- will result in licity prejudicial so defendant will be deprived of his process right Stroble, due fair Murphy, trial. Beck, of course, sharpened vision of hindsight helped Court to see that the trial had been fair notwithstanding publicity. judge The trial faced with closure motion has the more looking task of I difficult into the future. do not mean suggest egregious circumstances cases such Sheppard as Estes and would permissi- closure be ble. But to some harm extent defendant fears publicity speculative. is also
If, considering after the essential factors, the trial court determines that the accused has carried his burden of estab- lishing that closure is necessary, Sixth Amendment no barrier to reasonable restrictions on designed access Any meet that need. restrictions imposed, however, ex- should tend no further than the circumstances reasonably require. *64 might be possible public well to exclude the
Thus, in- portions prejudicial proceeding those at which the the por- admitting formation would be while to other disclosed, suppress tions where the information the seeks to accused 2d, Cianfrani, would be United 573 F. not revealed. States v. the at 854. in temporary closure should be that Further, court should those ensure that an record is made of accurate proceedings public permitted held camera and the that de- proper access the the record as soon the threat to as passed. fendant’s fair-trial has I reject may suggestion thus the alone that the.defendant reject determine when closure should I occur. also notion that decision whether should permit closure in the prosecutor hands on the is the theory that he representative of the public’s part interest. is in It public’s observing prosecutor, interest conduct and the police closely with whom he is associated, provision public-trial serves. To cloak his own actions those of his public associates from thus scrutiny, prosecutor a may a hearing choose to close do where facts not warrant it. Moreover, prosecutors often public are elected, strong has a interest, noted, observing the conduct In addition, may elected prosecutor officials. fear reversal if appeal strenuously on he too resists motion a defend- ant hearing. to close a a prosecutor wrap Conversely, in the mantle his interest desire to disseminate prejudicial an information about prior accused trial, so resist motion to close where the circumstances warrant I some on restrictions am unwilling access. thus to commit discretion of the prosecutor, against whose own miscon- or incompetence duct public-trial requirement designed part to protect, the decision as to whether an accused’s motion granted. to close will be final I safeguard,
As would conclude any person re- given moved from a court should be a reasonable opportunity to order. effectiveness prior objections his state evidentiary form take the need not opportunity This legal argument extended encompass hearing; it need notice given prior not be and the need delay; results given time will be considered at that a closure order contemporaneously where member place. But opportunity a reasonable provide the court should objects, should objection. his the court person Finally, to state concerning need closure findings on its state the record *65 reviewing may adequately informed. that a court so
IV right public’s establishing the Amendment, Sixth fixes a also pretrial proceeding, a criminal trial and access to Petitioner, a news rights as press regard. the this Jack of access to the enjoys the same paper publisher, general Denno hearing v. case as does the son issue this petitioner And and in the courtroom public. what sees hears publish or with citizen, report like other consistent may, “Of there nothing pro the First Amendment. course, that press reporting transpire scribes events that Maxwell, Sheppard courtroom.” S., U. at 362-363. Reporters for and newspaper, television, radio “are entitled public” rights the same have general access to the Texas, Estes v. courtroom, S., they U. where “are always they if present plainly wish to be are report and free to open whatever occurs in court respective their through media.” Id., at 541-542. hearing held, been “[O]nce ha[s] what there transpired subject could prior not be restraint.” Stuart, Press Assn. v. Nebraska S.,U. at 568. acknowledges
Petitioner that it seeks no greater rights than general public. those argues due the But it the Sixth that, protects Amendment First aside, Amendment free flow judicial of information about and proceedings, that flow cut off meeting not be without required standards justify imposition prior the First restraint under Specifically, petitioner Amendment. argues the First prohibits pretrial except Amendment closure proceeding in accord with the standards in Nebraska Press established hearing after notice a stay pending appeal.
I agree. do I no not As this case involves noted, have upon restraint publication upon informa- comment about already tion possession It press. or the judicial issue of access to a proceeding. involves-an To the extent protects the Constitution public access proceeding, standards enunciated under the Sixth right. Amendment protect suffice to I therefore need reach the issue First Amendment access. V I by Judge DePasquale. return to the exclusion order entered It is clear his judge entered the order because of apparent concern for rights the fair-trial of the defendants suspicion and his rights that those would if be threatened hearing public. were I I acknowledge but con- that concern, clude order was not this case. justified on the facts of
There was no upon factual which basis the court could con- open clude that a substantial probability pro- existed that an ceeding would in result harm the fair rights to defendants’ to a trial. The in coverage petitioner’s newspapers Clapp’s of dis- appearance subsequent and the of prosecution arrest and Greathouse circumspect. and Jones was on appeared Stories only days of July the 18 August between All and 6. coverage August ceased on 6 and did not resume until after suppression the three hearing later. months The stories that appeared were largely factual in reporting nature. The editorializing restrained and free from or sensationalism. no screaming There was headline, no lurid no photograph, front-page overemphasis. The stories were of length moderate and developments were linked to factual in case. the And in Seneca circulation only a small newspapers had petitioner’s ante, opinion. Court’s n. County. See that stated respondents counsel for addition, hearing suppression petitioner fact known not ]3rior 40. Arg. Oral of Tr. content of the confessions. was the confessions hearing, petitioner had learned Prior evidence physical nature of the existence and and of the likely that all suppressed. is thus sought to be It have resulted suppression hearing would openness of the have that would of information divulgence additional would probable and Jones made it more that Greathouse denied a fair trial. I that conclude, law,
On as a matter record, cannot ines- sufficient and showing there was a to establish the strict cir- capable necessity that supports an exclusion order. by the justified holding cumstances also would not have there alterna- probability trial court was substantial rights tives to closure would sufficed protect not have of the accused. publicity justice.”
It has been said “is the soul Bentham, J. A (1825). Treatise on Judicial Evidence 67 And many ways open judicial is: processes, especially protect criminal field, against police and judicial, prosecutorial, abuse; provide a for citizens to obtain information means justice system about the criminal performance pub- and the lic officials; safeguard integrity Pub- courts. licity preservation confidence in essential the rule of law operation Only courts. rare principle circumstances does this clash with rights criminal to a defendant fair trial so as justify exclusion. The Sixth Fourteenth require Amendments States care take to determine that those circumstances exist excluding before from a hearing to which it other- *67 freely. is entitled to wise come Those circumstances did not exist this case. notes