KEARNS-TRIBUNE, P. OF SALT LK. T. v. Lewis

Fronk, King 21. 14 Utah 2d v. (1963).

P.2d 893 Sessions,

22. v. 25 Utah 2d Johnson (1970).

477 P.2d 788 Corp.

23. Investment v. Universal 2d 484 P.2d

Kingsbury, 26 Utah (1971). Walker,

24. 29 Utah 2d Lane v. (1973).

P.2d 1199 Utah, Defa,

25. 525 P.2d 725 Baum Co., Development

26. Brown v. Peterson

Utah, 622 P.2d 1175 CORPORATION,

KEARNS-TRIBUNE LAKE

PUBLISHER OF SALT

TRIBUNE, Petitioner, LEWIS,

Honorable Eleanor S. Circuit Judge, Respondent.

No. 19612.

Supreme Court of Utah.

1,May

passing to an interest “in privacy being the well opposing victims.” In closure, petitioner press’s relied on the con- rights, surrogate stitutional as “the public,” “be observe workings judicial branch of government.” While conceding that such hearings resort,” could be closed “as a last petitioner maintained that this could be done where the a circumstances met test, (Part three-pronged mentioned below IVA). proffered No evidence was or re- Holman, City peti- D. Miles Lake for Salt hearing. rep- ceived at the There were no tioner. that any resentations be evidence to Gen., Wilkinson, Atty. L. Ted Can- David presented the preliminary hearing at would Harward, non, County Atty., Brooke Carvel subject suppress to a motion to or would Pixton, Wells, Connie Mower and Suzan otherwise be inadmissible at trial. City, respondent. for Salt Lake arguments At the conclusion of on motion, the court stated that she would OAKS, Justice. trial, close if the courtroom this were a but case This concerns the circumstances un- a only preliminary hearing. this was The judge can der which exclude court then concluded: “The nature of preliminary hearing and the from the offense, balancing as well the interest in a criminal case. defendants, the victims and who merely charged juncture, persuades at this AND I. FACTS CHALLENGED ORDER this Court that this courtroom should ag- charged Three defendants were with closed, will and that be the order of kidnapping, gravated aggravated sexual findings other Court.” No conclusions assault, aggravated exploitation of at were indicated this time. The court then females, against prostitution age two one petitioner’s stay pre- denied motion to prosecution joined The defense and 17. hearing appealed or- liminary while it preliminary hearing in motion to close judge The der of closure. cleared Lewis, public. Respondent judge pre- went forward with the courtroom and court, of the circuit held a on that hearing. 17-year-old liminary The victim 1983, day on motion November hearing, the conclusion of the testified. At hearing. for the Pe- scheduled were bound defendants over to titioner, publisher daily newspaper, of a district court. hearing and had been notified of the was represented there counsel. immediately came this Petitioner complaint petition an Court with a for proponents of closure relied on Utah The writ, seeking extraordinary to vacate the Procedure, 7(d)(2), of Criminal Code Rule stay order of and to U.C.A., 1953, 77-35-7(d)(2), pro- which pending decision. We denied request party that on the vides of either stay called on November but for briefs examination “the merits, together with on the the record spectators order all excluded to court). (including findings of the The prosecution and the courtroom.” The from signed circuit court formal of fact urged closure the defense to assure through but December “clerical over- could have a fair trial before a defendants sight” they were not filed of record until jeop- been jury impartiality had not whose 20, 1984, January petition- two weeks after by pretrial publicity “high pro- ardized filed. er’s brief was prosecutor referred file” case. also finding right in the First Amend- AND this STANDING II. MOOTNESS promote an informed discussion ment is preliminary hear though the Even affairs, including con- government those concluded, appeal is not ing been has in the ducted courts. KUTV, Inc. the reasons stated moot for First Underlying the Amendment Utah, Conder, 668 P.2d 516-17 is the common of access to criminal trials question of This involves a case understanding major purpose that “a public interest that will recur considerable protect the free that Amendment was to apply we yet review unless will evade affairs,” governmental discussion exception to the mootness doctrine. 214, 218, Alabama, Mills v. clearly addition, standing petitioner 1436, 16 L.Ed.2d S.Ct. Id. contest the closure. protection, offering the First By such ensure that Amendment serves to THE CONSTITUTIONAL III. effectively partici- can individual citizen ACCESS RIGHT OF pate republican in and contribute to our public has While it is settled to system self-government.... of Thus trials, 517; id. at right access to criminal Amendment em- the extent that the First Utah, Conder, 635 P.2d 412 KUTV, v. Inc. trials, right braces a of access to criminal (1981), not clarified whether we have constitutionally that it is to ensure closed, if hearing can be (cid:127)preliminary governmental protected “discussion of so, govern the procedures what rules and is affairs” an informed one. closure. Court, Newspaper Superior Co. Globe question is whether either The threshold 604-05, 102 An- 457 U.S. at S.Ct. gives or the state constitution federal for First other reason cited Amendment media) any consti- public (including right the fairness of of access is to ensure right to hear- tutional attend criminal trial. appropriate excep- ing, subject of to course openness lies the fact The value of a constitu- tions. Petitioner such asserts attending people actually trials that it, right. Respondent denies con- tional standards of can have confidence that prelimi- right to attend tending that the observed; being are the sure fairness by nary hearing subject is limitation knowledge anyone is free to attend that Legislature constitutional re- without proce- gives assurance that established instance, Legislature, In this straint. being and that devia- dures followed 7(d)(2),has committed acting through Rule Openness will known. thus tions become magis- that discretion decision fairness of the enhances both basic trate. appearance fair- criminal trial and public so confidence ness essential A. United States Constitution system. Supreme The Court United States Court, Press-Enterprise — Superior Co. v. recognized now the First Amendment that at-, 104 at 823. U.S. S.Ct. gives the Constitution the United States recognizing the First consequence The media, ac- public, including the tri- right of access to criminal Amendment trial, subject only to cess to a criminal explained Supreme Court’s als exceptions narrowly tied a com- tailored most recent decision: pelling Press-Enterprise state interest. — although Court, U.S.-, proceedings, not abso- 104 Closed Superior Co. v. (1984); precluded, rare and 819, lutely must be 629 Globe S.Ct. L.Ed.2d outweighs Court, cause that the val- Superior shown Newspaper Co. v. 2613, openness.... 596, presumption ue of The U.S. 73 L.Ed.2d S.Ct. (1982); openness may only by be overcome Newspapers, Richmond Inc. 2814, overriding findings interest based Virginia, 448 S.Ct. U.S. (1980). preserve The reason that essential principal L.Ed.2d 973 higher narrowly values and is tailored period since Richmond Newspa pers to serve that The interest. interest is to Newspaper, Globe ap three state pellate along be articulated findings specif- with courts have decided that the new First enough ic Amendment reviewing that a court can access applies to preliminary hearings. determine All whether the closure order held was and the media properly cannot be entered. excluded from a preliminary hearing with —Id., at-, (em- 104 S.Ct. at 824 out of fact on the circumstances phasis added). that outweigh the right. constitutional question The before us in this case is Williams, State v. 93 N.J. 459 A.2d 641 whether the Supreme rationale the (1983); Item, Petition Daily 310 Pa.Su gave finding a First Amendment of per.Ct. 222, (1983). 456 A.2d 580 A similar access to criminal applies trials decision, which covers but is not limited to nary hearings. Court has preliminary hearings, is Minneapolis Star never resolved question. The closest Minn., Tribune Co. v. Kammeyer, decision on its facts is Gannett Co. v. N.W.2d 550 An earlier decision to 443 U.S. 99 S.Ct. 61 the same effect is Star Journal Publish (1979), held, L.Ed.2d 608 by which a 5-4 ing Corp. Court, v. County 197 Colo. majority, that on the facts of that case 591 P.2d 1028 there was no constitutional violation in ex- complete The most discussion is

cluding and the from a Jersey Supreme New State v. pretrial suppress. motion to The Court Williams, supra, which concluded that held, first, that gave the Sixth Amendment “the ‘institutional value’ of criminal right no constitutional pub- of access to the applies equal trials with force to criminal Second, lic. even if the First Amendment pretrial proceedings,” including prelimi- gave right of access it was “outweighed” nary hearing involved in that case. 459 by right the defendant’s to a fair trial in preliminary hearing A.2d at 648. While the case, that since there was a “reasonable (an exception could be closed for cause probability prejudice” of transcript if the hereafter), this could discussed purpose whose was to screen out done where the court disclosed on the illegally unreliable or obtained evidence record its of fact as to the basis was made in advance of the trial. closure. Id. at 659. The other cited for 392-93, Id. at 99 S.Ct. at 2911-12. cases are to the same effect. There are a host of appellate court deci- applying sions principles forego- A decision contrary to the is San Jose- ing variety cases to a pretrial different Mercury News Municipal Court, v. 30 hearings, including involving sup- those Cal.3d 638 Cal.Rptr. P.2d pression admissibility evidence, voir (1982). This case sustained the constitu potential bail, dire of jurors, fixing of tionality of a requires statute that mag probable determinations (prelimi- cause istrate to close the nary hearings).1 Because we believe the upon request of the defendant any without issue should precise turn on the nature weighing public’s countervailing proceeding question, we limit our to access. See also Press-Enterprise involving preliminary Superior Court, review to cases Co. v. Cal.App.3d 888, hear- Cal.Rptr. (1984) ings. (applies San Jose- See, Brooklier, e.g., United States v. Publishing proceedings); Miami Herald 1. 685 F.2d tention (9th Cir.1982) (voir Lewis, Fla., (1982) (motion dire and motions to Co. v. 426 So.2d 1 to evidence); suppress and exclude United States v. suppress); Minneapolis Star and Tribune Co. v. Criden, (3d Cir.1982) (motions 675 F.2d 550 to Minn., Kammeyer, (1983) (mo-, 341 N.W.2d 550 dismiss); suppress and United States v. Ed venue). suppress change tions to wards, D.C., (1981) (pretrial 430 A.2d 1321 de (unless indicted). he 77-35- has been no con- holding Mercury precedent News access).2 7(c). prosecution has hearing, At that right of

stitutional introducing evi- burden of sufficient Jacobsen, Utah, 638 Redding In persuade to that dence (1981), the Rich P.2d 503 we reviewed “probable to there is cause believe to decision and referred Newspapers mond charged committed and that crime has been “the new Amendment of access First defendant has committed it....” emerging....” that seems Id. to be Anderson, § 77-35-7(d)(l). In State v. Newspaper and Press-En Globe (1980), Utah, 783-84 said: 612 P.2d we thereafter, terprise, the United decided Supreme court confirmed the exist States purpose served fundamental right of access ence of a First Amendment ferret- examination is the Jersey Like to criminal trials. the New ing groundless improvident out of Williams, su Supreme Court in State prosecutions. The effectuation of supporting pra, we that the reasons believe purpose accused primary relieves the apply right of to criminal trials access degradation ex- from the substantial (although equally preliminary hearings pense to a modern criminal trial incident exceptions justify oc that charges against when the him are unwar- preliminary hear frequently more with cur ranted or evidence insufficient. trials). We hold ings than with therefore purposes of ancillary We also noted the media’s) public’s (including particulars on the providing the defendant applies to First of access Amendment nature of the State’s case and a means hearings in cases. preserve evidence favorable discover Amend- the First our decision While Easthope, his defense. Id. State v. Cf. case, it dispose of this sufficient ment is Utah, (1983)(power compel P.2d 528 us resolve appropriate also discovery of evidence for use at Constitution Utah under the issue hearing). nary In cases where a defendant On ground. alternative independent and ultimately pleads guilty charged of- unre- is final and decision ground, our one, reportedly or a oc- fense lesser — U.S. Long, v. Michigan viewable. here, preliminary hearing may curred the 1201 L.Ed. -, 103 S.Ct. hear- provide public the occasion for a (1983). prosecution’s ing of the evidence. B. Utah Constitution cause, probable finds magistrate If the Preliminary Hearing 1. The in bound over to answer the defendant is not, If information preface discussion of whether the district court. We our dismissed, is dis- hearings violates is and defendant preliminary the closure of charged prejudice with a review of the without to the State’s our state constitution subsequent prosecution hearings instituting under our later a purpose preliminary of § 77-35-7(d)(1). procedure. the same for offense. Utah functions, felony we person A a is In consideration of its vital arrested for preliminary “the hear- brought magistrate, who informs have declared that before right ing represents stage his a critical in the crimi- charge, him of the informs him of examination, process part fixes and of the preliminary and nal Utah] to. [in § Anderson, 77-35-7(a) (c). prosecution.” speci and Within criminal State v. bail. addition, thereafter, in the person 612 P.2d 782 n. 9. fied time arrested right just held that has a to a examination case cited we Newspapers approved application Dickinson 2. Dakota Court’s decision North sustaining Newspapers, permitted Inc. in the discre- in Dickinson of a statute that closure N.D., (1983), Jorgensen, where circum- is not tion of individual 338 N.W.2d necessary contrary right a fair of access. stances made closure to assure the constitutional constitutionality in trial. The court found no abuse of discretion This case did not sustain statute, Jose-Mercury News. the closure. a closure like San ” part important is such an of the exist at the people sufferance .... prosecution right of con- J.P., Utah, In re P.2d §I, guaranteed by frontation Art. 12 of the political “All power is in peo- inherent imposes Utah Constitution limits on the ple; governments and all free are founded kinds of evidence prosecution can use on authority equal their their protection that hearing. in Id. at 782-83. In terms of benefit, and they and have the holding on the State Anderson’s alter government or reform their as the confrontation, preliminary hearing Const, require.” welfare Utah trial, like the there more where is such a §I, art. principle That foundation right, jury than grand proceeding, our state implemented constitutional law is the accused no where of confron- § in part by I, Article 15: “No law shall be person tation cannot even passed abridge or restrain the freedom Thus, the counsel. fact speech press.” or of KUTV, See jury grand proceeding traditionally Conder, (discuss- Inc. v. P.2d at 518-21 provides support argu- closed for the history provision). es The freedoms of preliminary hearing ment that a should speech press are fundamental to the also closed. An accused who has the effective political exercise of ultimate procedural safeguards pre- afforded power people. liminary hearing has need of closure to less safeguard rights. his they If are to exercise their sover preliminary hearing Utah’s is different eign power intelligent in an responsible preliminary hearings from some oth- manner, people speech must have free jurisdictions in er that it does not include and a free operations and access to hearings suppress on motions to evidence.3 government. “Democracy blooms where 7(d)(1) provides: “Objections Rule to evi- stagnates is informed and where ground acquired dence on the it was secrecy prevails.” Newspapers Phoenix by unlawful properly means are not raised 557, 561, Inc. v. Jennings, 107 Ariz. the preliminary examination.” 77-35- P.2d As the Jersey New 7(d)(1). result, As a the added risks of Supreme Court observed State v. Wil prejudice through pretrial disclosure of evi- liams, supra: kindling pub “In addition to targeted suppress dence a motion misperception eroding public lic confi present in preliminary hearing. Utah’s dence, significant pretrial pro closure of prosecution try If the elected to use such ceedings general perpetúates ignorance (in evidence ad- knowledge necessary cuts off of a ruling vance it should whether full understanding justice of the criminal suppressed), spe- could defendant seek 54, system.” 93 N.J. at 459 A.2d at 649. public disclosure, cial measures to avoid its in matter not a before us case. But The people are should deeply and in- the disclosures incident resolution of a terested in and involved administra- suppress argu- motion to cited in —often justice. tion of Their interest and involve- rulings closing and in of ments favor those operations judicial ment hearings, e.g., Gannett Co. branch should informed. We therefore 378-79, U.S. at at 2904-05— 443 99 S.Ct. people hold that the have a constitutional inevitably are involved public of to criminal access trials and nary hearing in Utah.

preliminary subject hearings, excep- to the Right 2. Utah Constitutional of Public tions outlined hereafter. While this hold- Access to Criminal Trials and Pro- ing recognizes greater rights of access ceedings in the news media than large, recognize reality petition- we govern- “The cornerstone of democratic governments is the that er’s ment conviction contention that the media often act as 109-3(e), 38, 109-3(e) (1980). Compare, e.g., Ill.Rev.Stat. ch. § Ill.Code Crim.Proc. § 3. 522 public’s danger process that surrogates asserting judicial consti- will be ” access, petitioner does right of as by open hearing

tutional subverted .... 490 recognize We also and honor in this case. P.2d at 566.4 by exercise of access the fact that the state held that their states have Two media, responsible coupled a ex- news with pose to statutes no obstacle constitutions trust, high will result ercise its permitting the closure directing or rules dissemination of general far more informa- the rea- hearings.5 We find proceedings than the judicial tion about unpersuasive. soning opinions of these any members of the attendance of other public. by supported what we

Our decision the better-reasoned state consider to be EXCEPTIONS TO CONSTITUTION- IV. public access to supreme court decisions on AL RIGHT OF ACCESS hearings matter of as a preceding As noted in the discus In State v. under state constitutions. Wil sion, recognized all of the that have courts liams, Jersey Supreme supra, New a constitutional of access to provi its that constitutional Court found right is proceedings also held that the have phrased in press, sion on free which example, the subject exceptions. For I, substantially the same terms Art. deny altogether court can restrict or access Constitution, a Utah created 15 necessary where to assure that the defend preliminary hear public right of access to a impartial a ant receives fair trial before an ing, subject exceptions where the court jury. This will the criteria section discuss publicity poses a pretrial “realis finds that making procedures to be followed in prejudice to a tic likelihood of fair trial that determination. 63, A.2d at 654. In ....” N.J. at 459 93 Publishing Keene Corp. Keene District (1977), Court, N.H. A.2d A. Criteria Hampshire Supreme the New Court held legality closing This case concerns the provision guaranteed press that its free public, not the proceeding a criminal to the could not be excluded from prior legality publication. of a restraint on probable finding without cause stringent three-pronged Consequently, the would failure close Supreme applied test on danger pose present to a fair clear restraint, legality prior of a Nebraska Newspapers trial. And in Phoenix Inc. v. Stuart, v 427 U.S. Press Association

Jennings, Arizona supra, (1976), L.Ed.2d S.Ct. press provision and Court relied on its free four-pronged applied by this Court test provision justice administered prior limited to duration restraints openly holding hear trial, KUTV, Wilkinson, P.2d ing open unless “circumstances Inc. v. must be (Utah, 1984), inapplicable clear and here. exist which establish a Similarly, Supreme Court state And v. Fish the Hawaii relied on on the er, constitution. in Azbill compelling “policy (1968), a clear Nev. the Nevada 442 P.2d 916 require pub- justice” administration of Supreme Court its held that state constitutional lic to a unless the access (like provision, Jersey’s) phrased which New normally on trial court finds the record I, substantially terms of § the same as Art. 15 at the inadmissible evidence adduced Constitution, public right conferred the Utah prejudice creates a substantial likelihood of to prevented magistrate access that a from exer of However, right to a fair trial. defendant’s statutory cising to a discretion close not rest decision on constitu- court did its hearing. Corp. principles. tional Gannett v. Rich- Pacific 580 P.2d Annot., cases discussed in 49 Earlier A.L. ardson, 49, 224, Hawaii 55-57 59 Annot., (1973); 1007 R.3d 31 A.L.R.3d 816 News, Jose-Mercury supra, In San the Califor- 5. Supreme rejected challenge based nia Court a

523 Using “special The burden that must sustained to judicial its expertise proceedings obtain closure of experience,” 67, and 93 atN.J. 459 A.2d at stringent 655, should be less than the burden upon the court will decide the need for impose required prior to a restraint. Gan upon closure based following showings: nett Co. v. at 393 n. (1) the evidence relevant to the nature 25, Court) (opinion 99 S.Ct. at 2912 n. 25 of and extent of the publicity adverse [that 398-401, (Powell, and S.Ct. at 2914-2916 generated by pretrial the open be] J., Thus, concurring). the United States proceeding, including any as inferences phrased Court the criteria for potential to its for prejudice against a (notwithstanding closure the First Amend by impartial fair trial jury, an and access) right ment of in terms that are (2) relating the evidence to the [availabil- easy satisfy: comparatively pre to “The ity, feasibility, efficacy and of alterna- sumption openness may of be overcome selecting jurors means of and con- tive] overriding interest based on ducting the trial to integrity assure the pre that closure is essential to impartiality of jury. higher serve values identified [elsewhere (The N.J. A.2d 656-57. right trial,” of as “the a accused to fair words in brackets are from for- alternative narrowly S.Ct. at and is tailored to 823] rule, 63-67, mulations of the 93 N.J. at serve that interest.” Press-Enterprise Co. 653-55.) A.2d at satisfy While easier to —Court, Superior U.S.-, v. 104 S.Ct. than stringent multipart pertaining test at 824. restraints, prior these criteria still im- pose significant

Interpreting a party the First burden on a Amendment who seeks comparable exception to obtain an guaran- people’s state constitutional to the right tees, to the preliminary hearing state access employed variety courts have in a criminal case. of standards. Some courts have followed standard, the A.B.A. holding that in order B. Burden of Proof obtain closure face proof The burden of persuasion (1) access defendant must show on the a preliminary hearing closure of public hearing presents that the a “clear (defendant on the proponent or present danger” rights to his to a fair prosecution). Williams, v. State N.J. at trial because there is likeli- “substantial 64, 459 A.2d at rule 654. This follows from permit prejudicial hood” that it would infor- public’s constitutional of access to potential (2) mation to jurors, reach imposes hearing. It prejudicial effect of such informa- parties burden on party with best potential jurors tion on cannot be avoided access to evidence or information that can by any reasonable alternative means. Star Contrary used sustain the burden. Publishing Journal Corp. County the position concurring advocated Court, 197 Colo. 591 P.2d 1030 opinion, it would be unfair and unworkable (1979); Publishing Corp. Keene v. Keene impose on the burden members Court, District 117 N.H. 380 A.2d public, media, rely such as the who (1977); American Bar Association Stan- constitutional access Relating dards Criminal Justice to Fair preliminary hearing. If the media had the (2d 1978). Trial and Free Press 8-3.2 ed. proving burden of open hearing that an element,

On prefer we crite trial, deny would not fair defendant a phrased by ria Jersey Supreme the New this would either doom their efforts to au Williams, supra, (by requiring State which proof tomatic failure without adopt evidence) does not the “clear and dan access to or necessitate cumber ger” simply test and makes reference some prehearing and controversial dis prejudice” media, “realistic likelihood of covery re evidence to which publicity sult of adverse traceable to the could well render the issue of closure moot open hearing. 69, at N.J. 459 A.2d before it is heard. countervailing interests, such protect the Findings and

C. Procedure to a fair trial. the defendant’s articulated For the same reasons' 835, Cianfrani, v. 573 F.2d States United Conder, KUTV, P.2d 524- v. Inc. Cir.1978). (3d 25, preceded must be closure order hearing. Representative mem and notice Fourth, any por in the event that receive notice of the media must bers of closed, tran proceeding of the is the tion and, along with oth closure the motion for made script proceeding should partici who seek to parties er interested at the earliest time available to opportunity afforded an pate, must be in preservation of with the consistent proceedings upon mo participate in the required hearing terests that possible. extent the maximum tion to Burak, 431 A.2d at supra, v. closed. State allegedly of the prevent disclosure order issue of clo material before the prejudicial resolved, the court should fol can be sure Fifth, an of closure must be order procedure outlined below. low findings. accompanied by suitable written requirement, imposed by is vir This which First, hearing on the motion cited in this tually all of authorities greatest open to the for closure should subject party an affected opinion, allows possible. Rockland extent Westchester gives and the order to immediate review N.Y.2d Legget, v. Newspapers, Inc. reviewing court an authentic statement 518, 524-25, 434 N.Y.S.2d 399 N.E.2d upon legal principles which of the facts hearing (1979). can be If an 637-38 the closure was based. disclosing content of conducted without material, prejudicial this allegedly procedure, trial foregoing Under Burak, 37 State v. Conn. should be done. fully ex- make an informed and court will A.2d 1246 Sup. closure, necessity of decision on the plained pub- considering protecting the while Second, if of the al disclosure right of access to the fullest extent lic's prejudicial material is essential to legedly possible. hearing the motion conduct closure, court should first seek petitioner order chal The closure parties voluntary from the who agreement accompanied by case was not lenged this they not dis to be will wish Indeed, findings. was no evidence written allegedly prejudicial information close in the on the defendants’ submitted the trial or trial until it disclosed at find written motion for closure. Without See, e.g., ex rel. concluded. State evidence, supported by ings, adequately Court, Mont., 654 P.2d Smith v. District fair- qualify for the closure order fails (1982); Publishing 987-88 Keene con exception and is invalid under the trial Court, supra. Corp. v. Keene District right of access defined in stitutional agreement, the court Absent such an opinion. conduct in in order to close courtroom peti- extraordinary sought by writ proceedings cannot be camera whatever respondent’s granted, Novem- tioner of the al conducted without disclosure closing hear- 23 order ber legedly prejudicial information. State set No costs awarded. ing is aside. Williams, 73, 459 A.2d at 658- 93 N.J. at 59; Newspapers, Inc. Richmond Com

monwealth, Va., HALL, DURHAM, J., C.J., 281 S.E.2d concur. HOWE, J., concurring in the concurs Third, under either we stress that DANIELS, J. dissenting opinion of can be excluded alternative the J., STEWART, not participate does here- portion from that DANIELS, in; Judge, sat. necessary District to be court finds DANIELS, Judge (Concurring public fully District is protected interest Dissenting). and the participants in litigation. the majority granting I with the concur 383-84, U.S. 99 S.Ct. at 2907-08 extraordinary the writ on the the basis that (citations omitted). and footnote no I findings. made written Here Kearns-Tribune in- asserting is an portion opinion dissent from that the dependent right upon based not the Sixth procedure which sets forth to fol- be Amendment, solely upon but the free closing I preliminary hearing, lowed in a speech press guarantees and of the First adopted is believe standard incorrect Amendment to United States Constitu- preliminary hearings. for §1, tion and Article 15 of the Utah Consti- Initially, important it note is to tution. right here asserted is not that of ac Secondly, important it is to note that this case, In cused. this both the accused and does prior case not involve a restraint to prosecutor hearing. asked to close the speak news; print to or disseminate The right accused was concerned about his a such restraint could only imposed be un- trial; prosecutor expressed to a fair very stringent requirements. Rather, der reputations concern victims. right sought protected thé to right is the right Whether accused has an absolute to gather Certainly information. is this an open preliminary to an demand is a important right, subject but it is to reason- question. different The Sixth Amendment example, able limitations. For in Zemel v. right public a trial to was intended to Rusk, 381 U.S. S.Ct. L.Ed.2d guard against “star chamber” abuses that (1965), Supreme upheld proceedings. result from secret But government’s refusal to passports validate standing the news media have no to assert though to Cuba even the free flow of infor- right. this As the Court said thereby mation was restricted. In that Co. Gannett case, emphasized the Court that “[t]he 608 (1979): 99 S.Ct. 61 L.Ed.2d right speak publish to carry and does not adversary an system In of criminal right it gather with the unrestrained to justice, public interest in the adminis- information.” 381 U.S. at S.Ct. justice protected by tration of is par- Certainly, of the freedom Thus, ticipants litigation. because meaning right would have little if the to great jury interest trials gather unduly information were restricted. preferred as the mode of factfinding gathering right But information is a sec- cases, criminal a defendant cannot waive ondary right to speak publish and jury a trial without the consent of the subject is upon and less restriction a prosecutor judge. if the But defend- stringent standard than more these funda- right trial, jury ant waives his to a rights. mental prosecutor judge consent, it hardly argued right The First seriously could Amendment secures the public (including media) member of the could demand jury presump- trial because of the at a criminal societal interest trial. This fact-finding. Similarly, openness that mode of tion can be overcome while a it right defendant cannot convert his when is that the accused’s shown speedy right jeopardy. trial into a trial question fair is in compel postponement, presented indefinite here whether same general public surely presumption openness member of the extends to a prevent preliminary hearing. a continuance in I or- am convinced that der significant practical to vindicate the interest in the there are historical justice. efficient administration of differences between a trial and a short, adversary system hearing, our nary and different standards justice premised upon proposition applied. should be

526 closure, prosecutor agreed to but news TO RIGHT OF ACCESS

THE PUBLIC Like case now before objected. PROCEEDINGS media JUDICIAL Court, judge hearing held a on the trial this Supreme 1979, States In the United motion, where media were the closure Gannett Co. decided Court arguments, but no to their allowed 2898, 368, 61 L.Ed.2d 608 99 S.Ct. 443 U.S. and no written presented was evidence (1979). of a involved the closure This case findings held that were made. The Court hearing. The defend- pretrial suppression overriding articulated absent an interest hearing, and the requested closed ant a evidence, trial supported by a representa- media prosecution agreed. No public may not from judge exclude time, days three objected at the but tive 581, at 2829'. trial. Id. S.Ct. criminal requested that newspaper later the judge transcript public. The trial made be 1982, In came before the Court issue argument, but accepted and heard briefs Superior again Newspaper Co. v. Globe transcript, and the refused to release 2613, Court, 457 U.S. S.Ct. appealed. In addition to Justice newspaper There the Court con- L.Ed.2d opinion, there majority were Stewart’s required the a state statute that sidered opinions a dissent concurring three public from the courtroom exclusion of the justices. Although the nar- joined by four during testimony minor victims of judge of case is that a trial holding row held that the offense trials. The Court sex sup- pretrial to discretion close does have pub- the First Amendment statute violated opin- pression hearing, language of right criminal trials was lic to access to least, broader, on its face at ion much therefore invalid. “pretrial proceedings.” applying to again recently, the Court confront Most nearly point Although this is the most problem public of access to criminal ed case, any Supreme Court States United Press-Enterprise proceedings Co. v. Su of the clarity is obscured because — its U.S.-, Court, 104 S.Ct. perior inability speak to with one voice. Court’s This case affirms 78 L.Ed.2d opinion Burger’s concurring Chief Justice right First Amendment emphasized the historical difference be- applies to voir dire to criminal trials access proceedings. His pretrial trials and tween which, panel, questioning jury of the no that there is view seems course, part integral of the trial itself. is an pretrial right proceedings. access Supreme summary, In the United States recognizes a opinion First Justice Powell’s clearly First Court has established right open pretrial proceed- Amendment right Amendment access crimi- right ings, was ade- but asserts that this trials, not this nal but has extended quately judge’s in the trial deci- considered pretrial proceedings. the proceeding. sion to restrict access to Rehnquist appears to be of the view Justice A THE DIFFERENCE BETWEEN no absolutely that there is First Amend- A AND PRELIMINARY TRIAL open proceedings judicial ment HEARING close the judge the trial has discretion to any reason. The four dissen- A. Practical Differences pro- assert that the Sixth Amendment ters significant practical difference There is public a constitutional vides publicity a criminal prejudicial between proceedings. to criminal access hearing. In a at a trial and trial, including dire, jury the identi- States voir the United panel question public’s jury jury ties of the are known. examined the There are several methods to shield right of access to a trial Rich group prejudicial from in- relatively small Newspapers, Virginia, Inc. v. mond they can instructed 65 L.Ed.2d 973 formation: not S.Ct. reports period news for a (1980). Again, and the read or listen to both the accused time, they necessary, or if can se- could know before she held the questered. pretrial proceeding, But whether or probable not she would find jury yet is not known. There is cause; purpose that was the of the hear- way that possible reported information at a ing. She could or close the hear- pretrial proceeding and into disseminated ing guess based on a as to whether there community can kept potential the be from be would evidence to charges. sustain the jurors. procedure Our allows a defendant upon to be over will bound evidence that B. Historical Differences 7(d)(1), not be at admissible trial. Rule U.C.A., 1953, 77-35-7(d)(l) (1982 Repl. recognize I history that ancient is not Vol.), provides part: in necessarily the best basis to decide how probable may society The cause in rights our should be structured hearsay part. based on in or in whole today. Nevertheless, in determining what Objections ground to evidence on the rights rise to the level of constitutional acquired by that it was unlawful means protection, the backdrop historical of the are properly preliminary not raised at the important First Amendment an interpre- is examination. tational aid. In each of the four United Supreme involving States Court pub- cases preliminary Because the examination oc- lic access to prior proceedings, curs to time that defendant historical may perspective raise properly important the issue of ultimate was an considera- admissibility, prej- it is that some important inevitable tion. It is recognize therefore presented in udicial information will precolonial England that in early and colo- many hearings. America, pub- nial have always trials been lic generally examinations persons It is true that hear read who have not. prejudicial information thus disseminated jury. can be excluded from the But reports In the earliest of criminal trials very least, such dissemination of informa- England can found the seeds Of a community tion into the biases jury A tradition trials. record of 1565 panel in it ex- necessary that becomes quoted in Press-Enterprise was case. carefully clude citizens who read re- news early reporter explained This that “there is ports following or who are interested in nothing put writing but the enditement”: current events. All the openlie rest is doone important practical There is another dif- Justices, presence Judges, of the ference trials between many enquest, prisoner, and so trial, hearings. theBy indepen- time of it, or can will come so neare as to heare magistrate dent has made determina- depositions all given and witnesses probable that is tion there cause to believe aloude, that all men heare from the crime has been committed and that depositors of the mouth and witnesses person is the the defendant who committed is what saide. hearing, it. Prior to no Smith, (Al T. Republica Anglorum De such determination has made. The been 1906), quoted Press-Enterprise ston ed. charges brought solely at the are discretion —Court, at-, Superior v.Co. U.S. prosecutor. purposes One of 104 S.Ct. at 822-23 preliminary hearing subject is charges independent magistrate Conversely, prelimi- to an Maitland wrote of nary screen out those that are unfounded and to examinations 1885: thereby preserve reputation the accused’s preliminary examination of accused [The] from humiliation. persons gradually very assumed a judicial place The in which purpose

This is if the form.... it defeated nary court,” public. practi- “open is is held is no There indeed way prevent magistrate The can cal this. be excluded if the (1979), upheld secrecy justice will thus that the ends

thinks grand proceedings, saying: jury answered. be best pro- [B]y preserving secrecy (1885), Maitland, Police 129 F. Justice persons ceedings, we who assure Co. v. quoted in Gannett grand exonerated S.Ct. at accused but up jury will not be held ridicule. fact, England it libelous was held In (footnote publish preliminary exami for the 441 U.S. at 99 S.Ct. at 1673 magistrate. Rex omitted). taken before nations 563, 570-71, Eng. Fisher, Camp. preliminary examination (N.P.1811), Ellenbor Lord Rep. equivalent grand precise functional of a ough held: indictment, jury presumption important thing is more than any If strong. example, the closure is not as For justice, in administration of another the may preliminary the accused demand that come to jurymen should the it is that open; may be he not make examination guilt or persons on whose trial of those grand jury. similar demands of the Grand decide, they are to with minds innocence transcripts sealed, the jury are even after unprejudiced.... Trials at pure and business; grand jury its concludes although they law, fairly reported, may nary hearing transcripts ordinarily should injurious occasionally prove to individu- public after is be made defendant privileged. als, held to be Let have been trial bound over and the criminal is con- privileged.... so But continue them Nevertheless, cluded. the historical roots preliminary examinations have no these preliminary hearing grand are in the only tendency Their is to privilege. such jury, in the not criminal trial. pre- whom the law still prejudge those Utah, Further, beginning from the in innocent, poison sumes preliminary examinations have been closed justice. sources of request earli- the defendant. The Quoted DePasquale, 443 Co. v. Gannett provided: after statehood est statute 20, 99 n. 20. at 389 n. S.Ct. U.S. also, magistrate re- upon The must States, Similarly, pretrial United in the defendant, quest of the exclude from generally if proceedings closed were every person except his examination requested. generally defendant See dis- counsel, clerk, prosecutor and his 390, 99 at 2911. cussion id. at S.Ct. attorney general, the his defendant and of the historical roots of An examination counsel, having and the officer the de- preliminary proce- examination Utah custody. fendant closed, rath- dure also reveals tradition Utah, Statutes of Revised statehood, open, hearings. Prior to er than in effect with This statute remained prosecuted by felony offenses were indict- changes it re- minor until when was statehood, preliminary exam- ment. At present statute, placed by our which allows grand replaced jury ination indictment. party request hearing either Const, §I, 13. The Utah art. magis- in the closed and vests discretion purpose the same examination fulfills trate, providing for rather than a closed process screening grand jury hearing right. to the as matter accused supported by not evidence. charges proceedings Obviously, grand jury OF A BURDEN PROOF FOR CLOSING grand presumptively closed. Because PRELIMINARY HEARING function, investigatory an jury also has very important It is is true that there pro- why reasons its there are additional public openness public pro- interest public, some ceedings are closed but interest, To ceedings. say there is a apply. same considerations however, Inc., say is not to is a Stops, there constitu- Douglas v. Petrol Oil Co. especially right. tional This is true when 60 L.Ed.2d 156 S.Ct. I equally proof, collides with an believe that the burden of when interest issue, preservation of a the accused’s to a fair trial is in important interest in the closure, relatively undamaged repu- opponents should rest with the fair trial and a pre- for those who are accused but tation innocent.

sumed Going A. The Burden of Forward historically logically, the Both bal- person prosecu- or the When an accused tips media for ance to the and the preliminary hearing tion moves to close a trial, access to a criminal but to the ac- representative and a media or member of rights preservation cused for of his public objects, the court should order good access to a proceeding name when if in camera determine majority opinion hearing preliminary hearing issue. The should be closed. proof in improperly places Only parties litigation the burden of to the are enti- imposing upon duty proceeding. the accused the to es- tled to access to this If media representatives voluntarily agree prejudice. a likelihood of tablish disclose information learned at the in cam- takes The often they hearing, era also be allowed to immediately place almost after defend attend, agree- in the but absence of such an good charged. ant Unless cause is ment the need not allow shown, days must be within ten representatives media or their to attend the custody if and within the defendant is hearing.1 prosecution should re- § 77-35-7(c). The thirty days if he is not. quired plans proffer the evidence it court observed California San Jose-Mer probable elicit to establish cause. The de- Court, cury Municipal News v. 30 Cal.3d why fense should be allowed to state such 498, 513, 655, 664, Cal.Rptr. 638 P.2d may prejudicial. junc- evidence be At this (1982): ture, magistrate if the feels there is a Often, therefore, impossible it is possibility that reasonable accused’s showing defendant to make a that in his may prejudiced a fair trial be or justi- prejudice likely case and closure should closed for some oth- required may not fied. The evidence (such ac- er reason as concern for the early stage, at an when commu- available reputation, well-being of the cused’s nity reaction and the media’s attitude are victims, witnesses, safety of the inter- Moreover, may defendant not clear. ongoing investigations or the ference with knowledge little before the have like), magistrate should the hear- prosecution’s strategy and evi- ing state on the record the reasons for additionally dence. That clouds his abili- the closure. This statement should be him ty prove the value to of closure. possible, pro- specific as consistent with (Footnote omitted.) right sought protected. to be tection of the Ishikawa, 97 Wash.2d Seattle Times Co. v. Dakota court observed Dic North 30, 640 P.2d 716 Newspapers, Jorgensen, Inc. v. kinson N.D., (1983): 338 N.W.2d going point, At that the burden of for- unbearably expen- opponents to the of closure to

It also become ward shifts obtain, likely occur2 develop prejudice would sive for the accused show regarding alternative means introduce statistics or that less-restrictive (such voluntary agree- ratings and other as a media-court media circulation and ment) purpose. accomplish the same could such matters. Commonly, hearings approved this would consist of evidence of have been 2. In camera Ishikawa, community, Wash.2d Seattle Times Co. v. the circulation or the size of (1982); Newspapers, involved, Richmond 640 P.2d 716 rating level of atten- of the media Commonwealth, 222 Va. 281 S.E.2d Inc. persons community, in the the number tion (1981); Stafford, Wyo., P.2d Williams v. jury pool and the like. in the nary going hearings. Important rights to a free of the burden of This allocation press a fair trial must on a with Justice Powell’s view be balanced forward accords concurring opinion case-by-case Co. v. basis. In a hear- Gannett his ing, posed 99 S.Ct. at 443 U.S. there are unusual threats fair trial that do not exist to the same 2916: reporting That is extent trial itself. hearing, it is the defendant’s At this proof the reason the burden of should be moving party responsibility as .preliminary differently placed with a hear- showing fairness of make some And, practical ing than with trial. as a likely prejudiced pub- trial will his matter, clo- proceedings. Similarly, there will be more times when to the lic access request, preliminary hearing it is found nec- joins in the closure sure of if the State case, given opportunity essary to show than with the trial. In this should be access would interfere with writ should be issued because there were proceedings preserv- findings, impossible in fair and it is to know interests confidentiality of sensitive infor- ing what the took into considera- hand, the other members mation. On tion. When are made and reasons object to clo- articulated, however, who magistrate’s showing responsibility upheld sure have decision should be unless there is an that alterna- to the court’s satisfaction abuse of discretion. that would procedures are available

tive by the de- dangers shown

eliminate

fendant and the State. Persuasion

B. The Burden of depends upon persuasion

The burden of protected by closure. right sought to be protect If the for closure is to reason GODDARD, Beverly Plaintiff trial, the accused’s to a fair burden Appellant, upon opponents of closure to establish preju- likelihood of there is no reasonable stake, are at which dice. If other interests HICKMAN, A. Defendant Grant constitutionally protected, such as are not Respondent. reputation interests of accused’s enforcement, victims, witnesses, or law No. 18383. of closure to upon proponents burden is Supreme Court of Utah. imminent show that there is a serious or Times threat to that interest. Seattle Co. 1,May 30, 37-38, Ishikawa, 97 Wash.2d P.2d case, magistrate must enter any findings grounds

written that state Otherwise, there could

the action taken. meaningful appellate review. The scope state the should also any ordered. For ex-

duration of sealed, transcript specific

ample, if the opened should be artic-

time when it will be Ordinarily, no later

ulated. this would be

than conclusion the criminal trial. given

I should be believe the

broad discretion to or close

Case Details

Case Name: KEARNS-TRIBUNE, P. OF SALT LK. T. v. Lewis

Court Name: Utah Supreme Court

Date Published: May 1, 1984

Citation: 685 P.2d 515

Docket Number: 19612

Court Abbreviation: Utah