Access to Judicial Proceedings I

When a crime has been committed and a suspect apprehended, there are many judicial proceedings which follow: indictment, arrest, pre-trial hearings, voir dire (jury selection), trial and sentencing. The legal issue of access is whether the press has a right to be present at the various stages of these proceedings.

Review Nebraska Press Association v. Stuart, Irving v. Dowd and Sheppard v. Maxwell:

Tension between the First and Sixth Amendments

The important Supreme Court cases involve the stages of pre-trial hearing, voir dire and trial. They were decided between the years of 1979 and 1986. We will consider them in chronological order.

Cases:

Gannett Co. v. De Pasquale (1979)

Issues:

Closure of a pre-trial hearing

Exclusionary Rule

Does the Sixth Amendment's guarantee of an open trial give any rights to the press?

Does the press have a qualified First Amendment right to be present at a pre-trial hearing?

Richmond Newspapers v. Virginia (1980)

Issues:

Closure of trial

The "historical argument" for openness, pp. 673-675

A qualified right of access

Closure:

*there is a substantial probability that defendants fair trial right would be prejudiced by publicity

*closure will prevent that prejudice

*reasonable alternatives to closure cannot adequately protect the fair trial right

Globe Newspaper Co. v. Superior Court (1982)

Issues:

Closure of a part of a trial

Clarification of the standards given in Richmond: Strict Scrutiny

Press-Enterprise v. Superior Court (I) (1984)

Issues:

Closure of voir dire

The "historical argument" for openness

The "functional argument" for openness

A qualified right of access--the party seeking to close:

*must advance an overriding interest likely to be prejudiced

*closure must be no broader than necessary to protect the interest

*the trial court must consider reasonable alternatives to closure

*the trial court must make findings adquate to support closure

Press-Enterprise v. Superior Court (II) (1986)

Issues:

Closure of pre-trial hearing

The "historical argument" revisited

The "functional argument" p. 685

A qualified right of access pp. 686-687

Closure:

*there is a substantial probability that defendant's fair trial right will be prejudiced by publicity

*closure will prevent that prejudice

*reasonable alternatives to closure cannot adequately protect the fair trial right

Developments After 9/11

*Secret dockets--"in some instances, proceedings against persons arrested in connection with terrorism have been conducted entirely off the books"

M. K. Bellahouel

**First 9/11 case to go to trial

U.S. v. Koubriti (E.D. Mich. 2003)

closed voir dire

***Closed immigration hearings

Detroit Free Press v. Ashcroft (6th Cir. 2002): Richmond, Globe and Press-Enterprise II are proper precedents. The hearing had been closed without specific findings of a need to close.

North Jersey Media Group, Inc. v. Ashcroft(3d Cir. 2002, cert. denied): Even though such hearings have been generally open since 1964, "the tradition of open deportation hearings is too recent and inconsistent to support a First amendment right of access."

Recent Supreme Court Decisions

District Attorny's Office v. Osborne(2009) [no constitutional right to DNA tests]

Herring v. United States (2009)[exclusionary rule]

"To trigger the exclusionarry rule, police conduct must be sufficienly deliberate that exclusion can meaningfully deter, and sufficiently culpable that such deterrence is worth the price paid by the justice system."