Petition of Daily Item

Re Petition of the DAILY ITEM ITEM, Saylor. Appeal of DAILY C. William Superior Pennsylvania.

Argued Sept. 1981.

Filed Feb. Apfelbaum, Sunbury, appellant. R. for Leonard Ax, Jr., Middleburg, participating party. for Charles J. BECK, BROSKY, JJ. Before McEWEN BROSKY, Judge: held hearing was December

On E. District to determine whether Robert before a Justice tried on criminal charges. Dock should be homicide denied the public hearing District Justice access to the provide refused to with a copy transcript. then filed a Petition Appellant with lower court access to a record of seeking proceedings. The the District upheld public court Justice’s exclusion of the hearing transcript. from the and denial of During arguments us, the oral presented to we were informed that the trial in this case has already been con Normally, appellant’s appeal cluded. we would treat as However, moot and dismiss it. we decide cases with moot, questions, capable substantial otherwise which are repetition unless settled. See McKeesport Area School Collins, District v. 55 Pa.Cmwlth.

(1980), Home, Nursing Colonial Gardens Inc. v. Bach man, 373 A.2d Finding this recur, likely situation to be one we will address the appeal. merits of the We reverse. court in explained petition lower its denial of the

opinion which concluded as follows: circumstances,

In hearing these it is clear that before the District petitioner sought Justice which requests admission and for which it a transcript was part a or preliminary prefatory stage of the criminal it justice proceedings guar- to which had no constitutional admission, antee of thus right no constitutional to the transcript. 10 of (Page Opinion.) state, has, We are unable to as the court lower that the right has no of access to preliminary proceedings. In Company, DePasquale, Gannett Inc. v. 61 L.Ed.2d 608 the Supreme Court was question

faced with the whether members independent have an constitutional right upon insist access to a pretrial judicial proceeding. The court held that no such is or Amend- given by Sixth Fourteenth ments, but reserved decision as to whether it is found in the however, First Amendment. The Court did that if say, even exist, such a right does there are circumstances which it fair trial. by a defendant’s outweighed is court of the courtroom the trial found closure court permissible to be because based “on an assessment the closure decision was

... than interests involved ... rather societal competing First Amendment freedoms determination that any on at 2912.1 implicated.” not Id. were contrast, case present trial court held In implicated not because Amendment were First freedoms a trial to which the not access attaches. Pennsylvania Constitu- argues that the

Similarly, appellee open” found in Art. provision that “all courts shall be tion’s § 11, not the District apply does case because not not court We do proceeding. Justice proceeding are before a District Justice proceedings agree. When are treated as nature, hearing, they as was this criminal § 103.2 See 18 Pa.C.S.A. proceedings. court 419, 414 Pa. A.2d 318 In Hayes, Commonwealth held that closure (1980), Pennsylvania Supreme Court not ordered where some other proceeding may be pretrial protect can the defendant’s fully device procedural question trial. In Hayes, a fair was held hearing scheduled be suppression immedi- ately prior trial. decision, discussed the reaching

In its the court Gannett not does great length concluding that while Gannett case constitutionally whether there based decide Rehnquist’s separate Burger’s Chief and Justice 1. But see Justice they concurring opinions express the view that no in which pretrial proceedings. right of as to access exists Hayes, our In 2. greater right interpreted provision providing no as provisions public trial is found in the of access to than its Constitutions. The Court did conclude our and Federal state finding case that closure of constitutional discussion that there an effec- pretrial suppression be limited where trial to assure the accused's fair and efficient alternative means tive Id., rights. A.2d at 489 Pa. at 322. access to pretrial proceedings, that decision provide does for justification limiting the use of closure. The Court wrote:

It is thus readily apparent that where a less restrictive alternative is available for assuring the fair trial guaran- tee and the use of that alternative does not unduly the expeditious disposition cause, burden all of the expressed by views members the Gannett Court would no disagreement have serious requirement with a procedure alternative should opted for in preference Id., to' closure. 489 Pa. at 414 A.2d at Our Supreme Court then found that under the facts case, a less Hayes restrictive was available. alternative All parties agreed had that since the suppression hearing was to immediately precede trial, sequestration of jur- ors would protect the defendant’s right to a fair trial. court,

Unlike the Hayes we cannot determine on the us, record before whether closure was What justified. we determined, however, have is that the trial court erred in failing to consider the public’s right of access to this pro- ceeding. court Hayes indicated that whether that is of

constitutional dimension was not critical to its decision. See Hayes, supra, 489 Pa. at fact, A.2d at 321. In court did not state whether the right it enforced was based on either the Federal or Pennsylvania did, Constitution. It though, find such a as proceedings.

Certainly, the facts of the present are appeal different than those of Hayes. The preliminary hearing, held to determine whether the all, defendant should be tried at not held immediately before trial. Sequestration of jurors would not provide an effective alternative means. It may well be that there was no other way protect the defend- trial, ant’s right to a fair question but the should have been considered.

Order reversed.

226 in the

McEWEN, J. concurred result. BECK, concurring opinion. J. files BECK, Judge, concurring: from a press was excluded originated case when

This charge. on a homicide The defendant preliminary and press public be excluded. requested pro- and closed the Magistrate District consented presiding court Appellant newspaper petitioned lower ceedings. and access proceedings granting for an opening order newspaper and the petition Its was denied transcripts.1 appeals. now been of the criminal case involved has

The trial filed proceedings of all concluded and record has been established that public appeal record. It is well proceed- from such closure order even when the be taken are and ings completed, from was excluded public which “ A ‘if controversy not moot made available. transcripts of repetition yet is one underlying dispute ‘capable ‘(1) was challenged action evading review.’ ... [because] its litigated too to be fully prior its duration short (2) there was a reasonable expiration, cessation or would be sub- expectation complaining party that the same ” Co., again.’ the same Inc. jected to action Gannett 99 S.Ct. DePasquale, Southern Terminal quoting L.Ed.2d 608 Pacific 279, 283, 498, 515, L.Ed. 310 ICC, 219 U.S. Co. v. 147, 149, (1911) Bradford, Weinstein are Those conditions L.Ed.2d met in this case. case, question of whether the presenting

This of access to criminal have himself, is one of of the defendant hearings independently first this court. impression Appellant also the issue of to access has raised clearly public as are proceedings. The are as of court records records proceedings.

227 public I and would hold that the agree majority with right adjudica- a limited of access to this press and the have which the court below failed to tive criminal concurring opinion explain fully I consider. write my reasoning. Pennsylvania on the Constitution and right is based Pennsylva- As to the

the Constitution of United States. Constitution, portions is founded on right nia Article of the Pennsyl- Declaration of which is One Rights impli- sections of Article One are vania Constitution. Two open cated: section 11 which refers to courts and section 7 to free and examination of pro- which refers Constitution, ceedings.2 As to the United States the First Amendment. supported by of access to a recognized public right The court below to find the same to a criminal trial but declined I hearing. disagree. history, purposes, preliminary preliminary hearing place proceed- and function of the of the criminal ing squarely adjudicatory within the ambit American tradition of judicial open- to the process subject ness. preliminary hearings specif-

Press access to has not been appellate addressed courts or ically by Commonwealth’s in the Third Circuit or the United States Courts Supreme Court. and the United

Both the States recognized public right thus far of access to Courts have pretrial suppression hearings although criminal trials and to hearings. Newspaper not to Globe Co. v. Su 596, 457 102 Norfolk, perior County Court for 2613, (1982); Newspapers, 73 L.Ed.2d 248 Richmond S.Ct. 555, 2814, 65 L.Ed.2d Inc. v. 448 U.S. S.Ct. Virginia, Co., (1980); DePasquale; Inc. v. Common Gannett A.2d cert. Hayes, wealth v. denied, Hayes Pennsylvania, (1980); Newspapers,

66 L.Ed.2d 289 Inc. Philadelphia regard complementary the defendant’s to a 2. With to the role of trial, Art. sec. see footnote 9 Const. infra. dismissed, 484, (1978), Jerome, appeal 478 Pa. 3104, Pennsylvania L.Ed.2d 913, 61 for the conclusion provide not a clear basis case law does hearings. to preliminary has a to access that the of it has found existence of Indeed even where hearings of there has suppression in context access right. for that See agreement no as the foundation been Newspapers, Inc. Hayes; Philadelphia v. Commonwealth However, cases after the recent federal decided v. Jerome. the issue sharpened decisions have Pennsylvania relevant in implicated federal constitutional and clarified the Co.; U.S. v. Newspaper of access. Globe question Inc., 675 Criden, Philadelphia Newspapers, Appeal of (3rd Cir.1982). F.2d 550 in preliminary hearing the role

I first examine Pennsylvania. hearing Pennsylvania preliminary

I. The role proceeding. criminal adjudicative as an statutory hearing has a common law preliminary for Its extends origin. history than a constitutional rather jurispru criminal years English 500 nearly a period Brabham, 331, 225 Pa.Super. v. dence. Commonwealth O'Brien, v. 181 Pa. (1973); A.2d 824 Commonwealth 309 dismissed, (1956), 666 Com appeal 124 A.2d Super. 132 265 A.2d Laughlin, v. 389 monwealth Brabham; v. grounds, other Commonwealth overruled on 99 S.Ct. at 443 U.S. at n. DePasquale, v. Gannett review of English required judicial n. 17. laws Early soon after his arrest person an accused charges against of pris release against indiscriminate protect being the accused from bail, protect on and also oners charge adequately support that did not held on evidence against him. providing prelimi- for first enacted a statute

Pennsylvania 14, 1915, P.L. May in 1915. Act of nary hearings § Interpreting cited in stat 1080 as P.S. Brabham.3 declared that a ute, pre Pennsylvania of an accused. hearing “positive legal right” is a liminary 396 Pa. 152 A.2d Hoffman, Commonwealth changes law major to a expand preliminary 1915 have since been crime not included in the categories original already statute and to defendants incarcerated. Com monwealth v. Brabham. law, English primary purpose

In contrast to the early hearings prevent in the modern view is to detention. Hailey, unlawful 488, (1977); 368 A.2d 1261 United States v. 87 Gray, (D.Colo.1949). The in- F.Supp. preliminary hearing 436 the of the question legally volves whether evidence sufficient to detain the accused and the of whether question the accused is entitled to at liberty. be in

The as well as the defendant has an interest the it is a and of preliminary hearing integral part because vital criminal in adjudicative process. public’s the The interest in derives from its fundamental interest administration of proper justice. As the court stat- Hayes ed: “Our constitutional strong requirement public access judicial proceedings emphasizes publicity is ‘of crit- importance ical to our type government which the is the final of the citizenry judge proper conduct of ” 449, Pa. at 414 Hayes, business.’ Commonwealth v. 489 (Justice Kauffman, A.2d at 333 concurring) (quoting Cox Cohen, 469, 1029, Corp. v. Broadcasting (1975)). 43 L.Ed.2d 328

In this appeal question prelimi- is raised whether the nary hearings place exercising judicial take “courts” authority. magistrates, municipal court judges, judges adjudicate preliminary hearings district who are designated by part Constitution as of the Previously, English adopted law the Commonwealth relied on on O'Brien, subject, with the same result. Commonwealth v. (1956). Pa.Super. judicial system,” “unified exercising

Commonwealth’s Const., of the Commonwealth” Pa. Art. “judicial power I.4 Legislature sec. enacted into law this constitution- in the Judicial Code. 42 ally-mandated system Pa.C.S.A. § purposes 301.5 It is clear that for access district criminal are “courts”. justices exercising jurisdiction § Pa.C.S.A. 103.6

Furthermore, preliminary hearing considered “critical” of the criminal at which a defendant stage process Alabama, Coleman has a to counsel. 26 L.Ed.2d 387 Judicial responsibility hearings for are set out in Rules procedure preliminary seq. Clearly, et Criminal Procedure process.7 is a of the part judicial

4. “The judicial power of the Commonwealth shall be vested in a Court, judicial system consisting Superior unified Court, of the Court, pleas, courts of common communi- courts, City ty municipal Philadelphia, traffic courts in provided by justices peace. such other courts as law and of the justices peace jurisdiction All and their courts and shall be in Const., judicial system." this unified provision appeared Art. sec. 1. A similar Constitutions; prior see historical note to Pennsylvania Constitution. Purdon’s 5. “The judicial power of the Commonwealth shall be vested in a judicial system consisting of the: unified (1) Supreme Court. (2) Superior Court. (3) Commonwealth Court. (4) pleas. Courts of common (5) Community courts. (6) Philadelphia Municipal Court. (7) Pittsburgh Magistrates Court. (8) Philadelphia. Traffic Court of (9) justices. District justices jurisdiction All courts and district Unified and their shall be in this 1976, 9, 586, 142, 2, judicial system.” July P.L. No. effective § 27,

June 1978. “ (when exercising quasi-criminal jur- criminal or ‘Court.’ Includes (relating jurisdiction pursuant and isdiction to 42 Pa.C.S. 1515 § venue)) justice.” a district 18 Pa.C.S.A. 103. § hearing 7. It is irrelevant that some preliminary cases declare a not a determining purpose “trial” for the twice of whether an accused has been held, put jeopardy preliminary if a second Com- Flanders, 41, (1977), Pa.Super. 371 A.2d 1316 over- monwealth Lastly, practical there are reasons which support access the public of to In hearings. Knight, 364 A.2d (1976),

Pennsylvania Supreme Court noted the can be “help- ful in reporting matters to public generally so that persons having knowledge of the might events voluntarily come forward and testify.” objective This surely appli- has cation to the preliminary stage of a prosecution.

In the American system the tradition public access ordinarily applies to every aspect of the criminal adjudica- tive process. This long standing tradition has been a bul- wark of a free society, preventing which, secret proceedings if permitted, could ultimately erode individual rights and seriously undermine democratic principles.

II. The basis public access to pretrial for criminal proceedings in the Constitution Pennsylva- nia

After careful study of the history judicial interpreta- tion of the Declaration (Article One) of Rights Pennsylvania Constitution, I conclude that the public right of access to criminal proceedings is firmly predicated on two sections of Article One the Pennsylvania Constitu- tion: courts), section 11 (open (free and section 7 press and examination proceedings).

A. Article Section 11: “open courts” The “open courts” provision part of Article section 11 of the Pennsylvania Constitution. It provides:

Article 1: That the general, great, princi- and essential ples of liberty and free government may be recognized established, unalterably WE THAT DECLARE

[*] ^{[*] [*] [*] [*]} # Section 11: All open; man, courts shall be every for an him injury lands, done in his goods, person or reputa- grounds, Scott, ruled on other Pa.Super. Commonwealth v. A.2d 717 approve or that some courts indictment issued prior preliminary hearing. without a Boyle, Commonwealth v. interest and that are by before us in this matter are not these diminished other characteris- preliminary hearing. tics of the tion, law, remedy process due of and by shall have sale, or justice delay. and administered without denial availability This of courts to the declaration It precise counterpart has no in the federal constitution. Constitution since part Pennsylvania has been of and, fact, in the colonial part of fundamental law of of since 1682.8 Pennsylvania Province open” “open” In the “the courts shall be the word phrase First, it possible meanings. plainly two apparent has are to all courts available means that the Commonwealth legal Singer as modern courts. recognized injury cases Sheppard, v.

Second, are physically it also mean that courts cases court Pennsylvania to the Some lower open public. interpretation. Kling- v. support such an (defendant Co., 1976) cannot er, (Perry 75 Pa.D. & C.2d from a preliminary hearing); Declamp exclude the Hover, (1965) (defendant in a negligence 57 Berks 17 civil trial). has to a action See also Common- Kauff- (concurring opinions Justices Hayes, wealth man, Larsen, Flaherty.) and meaning suggests more often may appear

That the first availability of state courts jurisdictional issue not the additional more but does foreclose frequently, arises fact, case And, early meaning. Pennsylvania as one open” was in the first language The "all courts shall be set forth Twenty-sixth in Section the constitution of Government, Com- set forth the structure of the the Frame of which judicial system. government, including monwealth sessions, pleas, orphans be held "Courts common and court shall city county; legislature quarterly and the shall have in each good they may power judge as for the such other courts to establish justice open, All courts shall be of the inhabitants of state. corruption or unneces- impartially be administered without shall sary paid adequate moderate delay: officers but All their shall compensation for their services...” upon Agreed open phrase is from the “Laws courts derived read: England” up by of which William Penn in section 5 drawn denied, sold, open, justice or shall neither be “All courts shall be today T.R. delayed." provision is Article section 11. See White, (1907) Pennsylvania, on the Constitution Commentaries 159-161.

233 refusing attorney court officer’s states, concerning a courtroom, share common meanings the two ato admission the courts have with All have lawful business who ground. persons these and “ingress egress” physical to right a witnesses, and attorneys, as well as public, include “in the administra- public interest of their because parties, (1883). 362 Pittsburgh Reports 30 of justice.” tion mean to provision courts open interpretation The was underscored open public to the the courts shall be v. Paylor ex rel. Commonwealth Superior Court by 246, 181-182, 248-249 176, 138 A.2d Cavell, Pa.Super. 185 854, omitted), denied, 79 S.Ct. 358 U.S. (1958)(footnote cert. (1958)9: 84, 888 3 L.Ed.2d occasion to States had of the United

The background nature and historical discuss the thoroughly Oliver, supra, public to a trial Re right [333 also, See, v. 499, (1948)]. Com. 257, 92 L.Ed. 682 191; Jelke, 564, 568, A. v. Trinkle, People 124 guarantee The of the 56, origin 123 N.E.2d 769. 308 N.Y. distrust Anglo-American not clear. “The traditional is to the notori- variously has been ascribed for secret trials to the Inquisition, Spanish use of this practice ous Chamber, of the Court of Star English excesses All de cachet. abuse of the lettre monarchy’s the French 1, right public Article Paylor to a trial. 9. concerned a defendant’s 9, Pennsylvania, paralleling the Sixth of the Constitution of section Constitution, provides that “in all criminal the U.S. Amendment speedy public right a prosecutions, hath a ... to have ... the accused may be waived. personal the defendant and trial...” This 183, Id., Pa.Superior at 249. While a criminal 138 A.2d 185 not, alone, a source of the trial defendant’s own access, intimately are public's right for the two the reasons justice in criminal An interest in the administration intertwined. (Indeed, prosecu- legitimate concern of all citizens. matters is citizens.) Paylor court for the tion—the “Commonwealth”—acts 1, defendant’s 11 as a source of the also cited Article section Id., Pa.Superior A.2d at 248 n. 3. at 180 n. 138 trial. 185 Thus, closing approved portions of crimi- Pennsylvania courts have purposes and strictly to valid only when closure was limited nal trials Burton, See, Pa. e.g. v. 459 scope. Commonwealth limited in time and Trinkle, (1974); 124 279 A.2d Commonwealth 833 Waiters, (1924); Pa.Super. A.2d A. 191 of these institutions obviously symbolized a menace to Oliver, 257, 268, 269, liberty.” supra, Re 682, 691, 92 L.Ed. trials Public a part legal system inception became of our at the Penn’s Colony. William Code of Laws of in the Government, Frame of the “Fifth. provided: That all sold, courts shall open, justice shall neither be denied or delayed.” Pennsylvania Constitution of guarantee 1776 was the first to include the to an accused right of the to a trial. “The provisions of the incorporated Constitution were no doubt into that docu- ment of the in early because abuse times of an accused’s right to a fair trial. This was at a time a when defendant trial, was a subjected strictly private or star-chamber convicted on proceeding, deserving statements not evidence, name of ofttimes through caprice of the ruling determined, monarch. It was when our Constitu- written, tion was this abuse should not be present our of It system jurisprudence. thought presence was of court, would constrain a generally otherwise predisposed, (sic) to accord the witness a fair trial. Con- by victions secret trials were therefore abolished. Public trials, records, introduced, with public were and our Con- perpetuates practice; Trinkle, stitution ...” v. Com. 191, supra, 279 Pa. 124 A.2d 1, B. Article section 7: press Freedom the to exam- of ine the proceedings government

Secondly, Constitution explicitly guaran- tees “printing press freedom of the ... to every person who undertake to examine the of the proceedings Legisla- ture or any government, branch of and no law shall ever be Const., right 1, made to restrain the Pa. art. thereof...” sec. 7. This provision parallels the First Amendment of the Constitution. McMullan v. Wohlegemuth, 147, dismissed, 970, 308 A.2d appeal 1547, (1974); 39 L.Ed.2d Taylor Selby Ap- (1963). peals, 193 A.2d 181 The Pennsylvania Supreme recognized right gather Court has that “a news must exist if the First Amendment is to of some dimensions McMullan, 453 Pa. at 308 A.2d vitality.” have realistic although a was held to exist like all right at 896. Such Amendment, First it is not unlimited and aspects rights.10 against must other Constitutional be balanced case, press’ right In the of access McMullan against right privacy information was balanced sought whose names and addresses were recipients welfare McMullan, 453 Pa. at 308 A.2d 888. by reporter. PNI, 465 Pa. McLaughlin also See a foundation for lay Article sections and 7 While access, such is not absolute must be bal- press countervailing other interests. by anced the public right III. Federal Constitutional basis for proceedings. access to criminal has held that there is United States to a criminal First Amendment of access trial. Newspaper Superior Globe Co. Court for Inc., Richmond v. Vir- County Norfolk; Newspapers, that is While access to criminal trials is not ginia. in of the very enumerated the terms “unambiguously Amendment”, to the necessary enjoyment it is “nonetheless “the free rights”, including of other First Amendment governmental Newspapers, discussion of affairs.” Globe L.Ed.2d at 457 U.S. at 102 S.Ct. at in the particular protected by Access to criminal trials historic tradition of such First Amendment because of the access, important “public and also of the role of because of the criminal “integrity” to the scrutiny” “quality” parallels noting Pennsylvania provision the First 10. After that the Constitution, court stated that Amendment of the U.S. the McMullan "newsgathering” had never ruled on whether the U.S. was activity encompassed by The court then the First Amendment. have Amendment” issue. State courts discussed the issue as "First using language frequently approached personal rights of federal issues however, fully Recently, helpful in in a trend that law. developing constitutions, meaning state courts have turned the of state legal develop- independently federal their own fundamental law to ments. See Interpretation Developments State in the Law—The Rights, Constitutional 95 Harv.L.Rev. 1324 at process. Newspapers, Globe adjudicative 73 L.Ed.2d at 256. acknowledged “independent” has Although the Court in access to pretrial suppres- societal interest” “important specific ruled that Constitu- hearings, any sion it has not guarantee of provision specific tional forms a Constitutional ruled the context. The Court has pretrial access guarantee. such a provide Amendment does not Gan- Sixth Co., Newspapers. Inc. v. Richmond DePasquale; nett Cf. (3rd Cir.1978). 573 F.2d 835 Cianfrani, However, for the Appeals the States Court of United Criden, Philadelphia Appeal Third Circuit U.S. v. entitled to Inc. decided that the was Newspapers, It process on due issues. pretrial proceedings access to the First Amendment pretrial held that in the context Criden, In of access.11 the feder- protected press’ right sup- on judge al district convened chambers concerning and due motions controver- pression process in the investigative government sial methods used cases. Phil- corruption cases known as Abscam political Inc., Newspapers, publisher Philadelphia adelphia News, Philadelphia Daily appeared and the Inquirer those The trial court closed argued hearings. for access to however, “the of the hearings, subject hearings because ‘matters, disclosure of which would pretrial involved impair destroy or both Govern- inevitably a fair trial an impartial ment and the defendant to before ” the court held that appeal, tribunal.’ 675 F.2d at 552. On of access to “the has a first amendment entrapment hearings.” Id. at suppression, process, due meaning of the First Amend- understanding 554. An in the of current values and condi- “interpreted light ment spoken definitively Supreme Court 11. Where the United States has not law, viewpoint of the on a matter of federal constitutional Third binding, Appeals Court of not on courts. Circuit is judicial upon is relied it is followed either as a sound Where it practice confusion, Negri, Commonwealth v. 213 to avoid reasoning of the federal case is A.2d 670 or because deference, North Penn Consumer Dis- "well-considered" and merits count Co. v. Shultz, Pa.Super. A.2d 250 378 1275

237 id. at tions,” 555, led to this conclusion because of of contemporary importance pretrial enormously increased purpose of the criminal proceedings adjudications. to ideas, of protect exchange the free First Amendment is is an to receive information therefore access a of guarantee freedom part of the amendment’s integral speech. of Criden as to reasoning persuasive

I believe that a First Amendment access the existence of hearings and that entrapment due suppression, process a applies preliminary hearing also reasoning Access Pennsylvania. af- promotes governmental informed discussion of

... complete with a more under- by providing fairs Newspa- See [Richmond standing judicial system. J., id. at 584 (Stevens, at pers] (plurality opinion); (Brennan, J., in the id. concurring); concurring at 596-96 “educative” interest. important judgment) ... serve[s] assur- id. at “the See (plurality opinion)____gives all were conducted proceedings fairly ance of fair- promotes public “perception concerned” and opinion).....Id. Id. at at 595 (plurality ness.” (Brennan, J., ...) has a communi- concurring “significant it therapeutic provides value” because an “outlet for ty concern, hostility, and emotion.” Id. at 570- community on opinion)____serves corrupt as a check (plurality exposing process scruti- practices by judicial discouraging thus decisions based on secret or ny, bias id. See partiality. (plurality opinion)____enhances id. at 569 n. See performance of all involved. id. discourages perjury. See (plurality opinion).....[and] J., (Brennan, concurring in judgment). at 596-97 Criden, 675 F.2d at 556. the press rights

IV. How to and the balance when closure requests defendant defendant criminal to a fair trial constitutionally A defendant entitled Constitution; (Sixth Amendment, Pa. Const. Art. 1507, 16 Maxwell, 384 9; Sheppard sec. defendant must a (1966)). What justification L.Ed.2d must be procedure closure order and what to obtain a show of the or of members rights to protect provided answer, to closure? To object who organizations of news controver press/court the reason appreciate one must an interest and a hand the has the one sies arise. On the adjudicatory every phase to on right report limited an hand, has a to other the defendant On the process. cases, can, in so bias rare publicity Pretrial impartial jury. is drawn jury from which community of the members impartial jury. to an pick it difficult that be can, if be necessary, already jury assembled Since prejudicial publicity, prevent exposure sequestered trial itself closure of the request minimal need to there is of a Therefore, for closure requests most for this reason. are impartiality protect jury’s criminal context.12 in the pretrial made closure must requests hold that a defendant who I would fair trial.13 to his of a a “serious threat” at least show “such as to cause con- Jerome; means “Serious” Hayes. inconvenience; attended with distress, or anxiety, siderable Dictionary at Third New International Webster’s danger”. fair trial to defendant’s danger threat” immediate. This “serious likely and should be hearing context suppression in the developed was standard cases the defendants were In and Jerome. those Hayes evidence to which highly inculpatory concerned about argued that The defendants exposed. might venire jury requested in the state orders of the closure 12. under two-thirds Just organization were in journalists’ and federal courts monitored trial, posttrial, preindictment. opposed or stages, "pretrial" as Summary, Reporters For Freedom of the Committee Watch 31, 1981). (Jan. Press Hayes concurring opinion in his Kauffman in I note that Justice 13. pretrial to close suggested defendant who wishes that a criminal show, alia, probabil- "that there is a substantial proceedings inter must from damage trial will result ity irreparable to his fair public.” Pa. at 414 A.2d conducting proceeding in Id. 489 act impartially could not of this evidence jurors aware suppressed. such evidence was event that proposal on access Bar Association The American formulation of provides another proceedings different from that language framed standard The ABA recommends Supreme Court. only if and closed open be the proceedings pretrial from such of information the dissemination fair trial present danger” a create “clear would Relating to American Bar Association Standards rights. Press, Trial and Free Fair Administration Justice: Standards”). 1980) (“ABA (2d 8-3.2 Ed. Standard resulting prelimi- from publicity a court finds that Once present a serious threat potentially nary may trial, following steps take the before judge shall fair hearing: closing to protect means

First, he shall consider alternative than the defendant. If a means other fair trial practically effectively will closure available which defendant, it must be prejudice prevent expected Philadelphia v. Hayes; preferred.14 Criden; ABA Jerome; v. Stan- Inc. Newspapers dards.

Second, can closed to the preliminary hearing be before effective likely closure must found to be public, be that is feared. pretrial publicity preventing prejudicial Thus, sought kept if be from prejudicial evidence known, might closure not be already has become (Kauffman, J., concur- Hayes justified. Commonwealth ring).

Third, closure, the substantive reviewing the reasons for the alternatives considered factors discussed above and the court for record. Common- by must articulated provides guidance as to available alternatives Pa.R.Crim.P. 326 may applicable pretrial in the context. trial which also be publicity should mind that if A court should also bear in change ultimately sufficiently of the trial prove prejudicial, of venue remedy. provide a sufficient (Kauffman, J., wealth v. Hayes concurring); U.S. v. Cri- den.

Conclusion reasons,

For all these I would specifically hold that news organizations and the public have a constitutional right to attend criminal preliminary hearings. The right is founded upon the Pennsylvania Constitution, Article section establishing right of a free press to examine public proceedings, and section declaring that all courts shall be open. The right is further supported by the First Amendment to the United States Constitution.

American courts have an outstanding tradition of open- ness to public.15 Only years recent has their record been matched other branches of government that have enacted or adopted “sunshine” or “right to know” or “free- dom of information” laws opening governmental other ac- tivity the enquiring public. This growing American tradition in which governmental power is exercised openly and subjected to inspection critical is one of which we can justly proud. We are all too familiar with the results of unchecked power authoritarian governments over their citizens without such a tradition.

Professional information-gatherers play a crucial role in keeping informed our complex society. “The press is the necessary representative of the public’s interest in this context and the instrumentality which effects the public’s right.” Saxbe v. Washington Co., 417 Post U.S. 843, 864, (1974) L.Ed.2d 514 (Powell, J., dissenting), quoted approvingly Lando, in Herbert v. 153, 189, (1979) L.Ed.2d 115 (Brennan, J., dissenting). This role of the press has been explicitly protected in Pennsylvania since its earliest Consti- tution declared that “the printing press shall be free to every person who may undertake to examine proceed- 15. See cases and materials collected in Wilder, All courts shall be open: Right Records, The Public’s Proceedings to View Judicial Temple L.Q. 311 Art. Const. government.” branch any of ... ings 7. sec. tradition, request importance light

In should be or to the judicial close of reservations. gravest with the only granted COMMONWEALTH RINEER, Appellant.

Robin Pennsylvania. Superior Court of April 1982. Submitted Filed Feb.

Case Details

Case Name: Petition of Daily Item

Court Name: Superior Court of Pennsylvania

Date Published: Feb 11, 1983

Citation: 456 A.2d 580

Docket Number: 204

Court Abbreviation: Pa. Super. Ct.