PRESS-ENTERPRISE COMPANY, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; ROBERT RUBANE DIAZ, Real Party in Interest.
L.A. No. 31876
Supreme Court of California
Dec. 31, 1984.
37 Cal.3d 772 | 209 Cal.Rptr. 360 | 691 P.2d 1026
Edward J. McIntyre, Marilyn L. Huff, John Allcock, Gray, Cary, Ames & Frye, Harold W. Fuson, Jr., Douglas T. Foster, Charity Kenyon, Diepenbrock, Wulff, Plant & Hannegan, Edward P. Davis, Jr., and Rankin, Oneal, Center, Luckhardt, Lund & Hinshaw as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Michael B. Lewis, Public Defender, and John J. Lee, Deputy Public Defender, for Real Party in Interest.
Diane C. Campbell, Ephraim Margolin and Sandra Coliver as Amici Curiae on behalf of Real Party in Interest.
BROUSSARD, J.—In the instant case we consider the appropriate standard to be applied by a magistrate in determining whether the public‘s right of access to preliminary hearings should be limited due to the risk of impairment of a defendant‘s right to a fair trial.
The real party in interest, Robert Rubane Diaz, was charged by a complaint filed in the municipal court with the murder of 12 hospital patients by administering massive doses of the heart drug lidocaine. He was also charged with special circumstances. At the time of the preliminary hearing there were many representatives of television stations, radio stations and newspapers present. On Diaz’ motion pursuant to
About seven months later, petitioner sought to gain access to the transcripts in the superior court. The prosecution joined in the motion. Diaz opposed, presenting evidence of the widespread publicity given to the case by the media, some of which had continued until the time of the hearing. The judge, concerned that releasing the transcript might require either delay of the proceedings or transfer of the trial to another jurisdiction, pointed out that defendant had a right to trial without undue delay and a Sixth Amendment right to trial in the vicinage. The judge found that “there is a reasonable likelihood that making all or any part of the transcript public might prejudice the defendant‘s right to a fair and impartial trial.” He ordered that the transcript remain sealed, and petitioner commenced the instant mandamus proceeding.2
THE ASSERTED CONSTITUTIONAL RIGHT OF ACCESS
Prior to its 1982 amendment,
In San Jose Mercury-News, the court also pointed out that seven of the United States Supreme Court justices had stated that preliminary hearings, unlike trials, were traditionally private at common law and were distinguishable from pretrial suppression hearings. (30 Cal.3d at pp. 504-506.) This court concluded that no right of access arose under the First Amendment. (30 Cal.3d at p. 506.)
In rejecting the claim of conflict with the California Constitution, the court recognized that state constitutional guarantees may give greater protection to some rights than the federal counterparts, but concluded that the Legislature reasonably gives fair trial rights a preference over access rights in certain classes of proceedings where danger of prejudice is strong and proof on a case-by-case basis appears difficult and that
Petitioner urges that recent decisions of the United States Supreme Court require repudiation of the conclusion in San Jose Mercury-News that the First Amendment does not provide a right of access to a preliminary hearing. Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596 [73 L.Ed.2d 248, 102 S.Ct. 2613], involved a Massachusetts statute requiring mandatory closure of trial during the testimony of a minor sex victim. The court again relied upon the tradition of trials being open to the press and public, and it asserted that before a state may deny the right of access it must be shown that the denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest. (457 U.S. at pp. 603-607 [73 L.Ed.2d at pp. 254-257].) Responding to an argument that trials have not always been open during testimony of minor sex victims, the court in a footnote stated that whether the First Amendment right of access can
The second case relied upon by petitioner is Press-Enterprise Company v. Superior Court (1984) 464 U.S. 501 [78 L.Ed.2d 629, 104 S.Ct. 819], where the court held that an order closing voir dire proceedings was invalid on the ground that the trial judge had failed to consider alternative measures. In a concurring opinion, Justice Stevens stated that the purpose of the access right is assuring freedom of communication on matters relating to the functioning of government and that “the distinction between trials and other official proceedings is not necessarily dispositive, or even important, in evaluating the First Amendment issues.” (464 U.S. at p. 516 [78 L.Ed.2d at p. 642, 104 S.Ct. at p. 828].)
Neither case warrants repudiation of the conclusion in San Jose Mercury-News that the First Amendment does not provide a right of access to preliminary hearings. Both cases were concerned with the right of access to trials rather than preliminary hearings. The problem of potential prejudice to the defendant is substantially different in relation to public trials than it is in relation to public preliminary hearings. In Press-Enterprise Company the court emphasized that prejudice to the defendant remains the primary concern, stating: “No right ranks higher than the right of the accused to a fair trial.” (464 U.S. at p. 508 [78 L.Ed.2d at p. 637, 104 S.Ct. at p. 823].) The main concern asserted in both cases to justify closure was not prejudice to the defendant but the interests of others, i.e., the privacy rights of prospective jurors and the physical and psychological well-being of minor sex victims.
While a footnote in Globe Newspaper Co. suggests that historical openness may no longer be an element of the First Amendment access right, the footnote by its own language is limited to trials. (Globe Newspaper Co. v. Superior Court, supra, 457 U.S. at p. 605, fn. 13 [73 L.Ed. 2d at p. 256].) The subsequent Press-Enterprise Company decision not only indicates that one of the bases of the access right to trials as established by Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [65 L.Ed.2d 973, 100 S.Ct. 2814] is that trials were open at the time of the adoption of the First Amendment but also devotes the first portion of the opinion to establish that
We conclude that petitioner and amici have failed to establish a basis for repudiating the conclusion in the 1982 decision in San Jose Mercury-News that the First Amendment access right does not extend to preliminary hearings. In addition, petitioner and amici have not pointed to any matters warranting repudiation of the portion of San Jose Mercury-News relating to the California Constitution.
THE STATUTORY ACCESS RIGHT
Shortly after the decision in 1982 in San Jose Mercury-News, the Legislature amended
The parties and amici dispute the appropriate standard to be applied by the magistrate in determining whether exclusion is “necessary” in order to protect the defendant‘s right to a fair and impartial trial. Some of the language in the brief submitted by amici suggests that exclusion is appropriate only if the magistrate finds that failure to exclude will result in an unfair trial.
Petitioner argues for the test set forth in United States v. Brooklier (9th Cir. 1982) 685 F.2d 1162, 1167 where the court stated that an “accused who seeks closure must establish ‘that it is strictly and inescapably necessary in order to protect the fair trial guarantee.’ This burden may be discharged by demonstrating: (1) ‘a substantial probability that irreparable damage to his fair-trial right will result from conducting the proceeding in public‘; (2) ‘a substantial probability that alternatives to closure will not protect adequately his right to a fair trial‘; and (3) ‘a substantial probability that closure will be effective in protecting against the perceived harm.‘”
Defendant urges that the proper test is that the preliminary hearing must be closed upon a defendant‘s request if the magistrate finds “a reasonable likelihood” of substantial prejudice which would impinge upon the right to a fair trial. The trial court purported to apply this test. The test appears to be based on the concurring opinion of Justice Powell in Gannett Co. v. DePasquale, supra, 443 U.S. 368, 397-403 [61 L.Ed.2d at pp. 632-636]. He joined the majority opinion in holding that the Sixth Amendment did not confer access rights but concluded that the First Amendment provides a limited right of access to suppression hearings. He rejected Justice Blackmun‘s test for closure on the ground that it was inflexible and could prejudice defendant‘s rights and disserve society‘s interest in the fair and prompt disposition of criminal trials. He concluded that the test is whether “a fair trial for the defendant is likely to be jeopardized by publicity, if members of the press and public are present and free to report prejudicial evidence that will not be presented to the jury.” (443 U.S. at p. 400 [61 L.Ed.2d at p. 634].) He stated that it is the defendant‘s responsibility to show that public access would interfere with the fairness of his trial but that those opposing closure have the burden of showing that alternative procedures are available that would eliminate the danger of prejudice.5
The legislative history of the amendment to
Clear and present danger language was contained, although in slightly different form, in the bill passed by the Senate, but the Conference Committee report was rejected in the Assembly, and the bill was amended in the Assembly to substitute “preponderant probability” for “clear and present danger.” The bill was amended in a second Conference Committee report to delete all of the language defining “necessary,” and as finally approved, the amendment to
The deletion of any definition of the word “necessary” shows that, while the Legislature concluded that preliminary hearings should be public unless there was conflict with the defendant‘s right to a fair trial, the Legislature intended that the courts should determine the standard to be applied in weighing the public‘s right of access against the defendant‘s fair trial right.
In San Jose Mercury-News, the court detailed the policy factors in favor of holding preliminary hearings in public: Exposure of governmental func-
Often the preliminary hearing turns out to be the only judicial proceeding of substantial importance that takes place during a criminal prosecution because so many cases are disposed of without trial. The hearing often provides the forum for issues involving police misconduct and exclusion of evidence. The court also pointed out that pretrial publicity, even pervasive adverse publicity, does not invariably lead to an unfair trial. (30 Cal.3d at pp. 505, 509-514.)
On the other hand, the court in San Jose Mercury-News pointed to several concerns militating against a public preliminary hearing and against requiring defendant to establish that prejudice will occur from a public hearing. While the Legislature has since amended
The concerns militating in favor of a right of closure recognized by the court include: The evidence at the preliminary hearing may be one-sided and misleading because the testimony is often that of the prosecution only—the defense remaining silent if it appears that reasonable or probable cause has been established. Many nonlawyers may not be aware of the function of a preliminary hearing which is not a trial with the danger that they may ascribe to a one-sided hearing the legitimacy and credibility of a trial. Magistrates may err in their evidentiary hearings, and there is a danger that highly prejudicial evidence which will be inadmissible at trial will be admitted or adverted to and reported by the media.
In addition factual, relevant reporting, no less than inflammatory publicity, may threaten a defendant‘s right to a fair trial by producing a jury pool “within which a defendant‘s guilt has already been ascribed.” (30 Cal.3d at p. 512.)
Because the preliminary hearing takes place at an early stage in the criminal prosecution, it may be difficult or impossible for the defendant to make a showing of the prejudice which will occur from publicity. At an early
We reject the view that a magistrate in ruling on a request to close the preliminary examination must find that in fact an open preliminary hearing will result in a denial of fair trial. At the time that the magistrate makes the finding predictions must be made as to the amount and nature of publicity which will result from an open preliminary hearing and as to the impact of the anticipated publicity. The legislative history of the two standards contemplated, “clear and present danger” and “preponderant probability,” indicates that the Legislature had in mind a lesser standard than a factual finding of actual prejudice.
The legislative history of the two standards contemplated, as well as its use of the word “necessary,” makes clear that the Legislature was of the view that open preliminary hearings would be the rule rather than the exception. “Necessary” is often used in the sense of essential (Webster‘s New Internat. Dict. (2d ed. 1959) p. 1635), and the terms “clear and present danger” and “preponderant possibility” reflect that a substantial showing of potential prejudice must be made before the preliminary hearing may be closed.
The test urged by defendant, a reasonable likelihood of substantial prejudice, and the test urged by petitioner, a substantial probability of irreparable damage, meet the requirement of a substantial showing of potential prejudice. While there is some difference between the two standards, it obviously is not very great.
Weighing the language of
The peremptory writ of mandate is denied. The alternative writ, having served its purpose, is discharged.
Bird, C. J., Mosk, J., Kaus, J., and Reynoso, J., concurred.
GRODIN, J., Concurring.—The majority‘s determination that the First Amendment provides no right of access to preliminary hearings is unnecessary to the decision of this case, and I do not join in it. The only constitutional question presented is whether the First Amendment requires a greater right of access than the Legislature has seen fit to establish by statute. I agree with the majority that by its amendment to
I agree also that the determination of “necessity” must inevitably be a matter of judgment based upon probabilities, and that the phrase “substantial showing of potential prejudice” (or, what amounts to the same thing, a “reasonable likelihood of substantial prejudice“) constitutes a fair description of the requisite assessment. I do not believe that the First Amendment would require more than that.
LUCAS, J., Concurring and Dissenting.—I concur in the judgment but dissent to the majority‘s analysis. By reason of the 1982 amendment to
As the majority concedes, “The legislative history . . . as well as its use of the word ‘necessary,’ makes clear that the Legislature was of the view that open preliminary hearings would be the rule rather than the exception. ‘Necessary’ is often used in the sense of essential . . . .” (Ante, p. 781.) Although a showing of actual prejudice may be difficult to marshall in advance of trial, certainly the defendant should be required at least to demonstrate a substantial probability of prejudice. (See United States v. Brooklier (9th Cir. 1982) 685 F.2d 1162, 1167.) No such showing was made here.
As the trial is completed and the case is now moot, I concur in the judgment denying the peremptory writ.