|Gannett Co., Inc. v. DePasquale
[ Stewart ]
[ Burger ]
[ Powell ]
[ Rehnquist ]
[ Blackmun ]
Gannett Co., Inc. v. DePasquale
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part.
I concur in Part II of the Court's opinion but I dissent from that opinion's subsequent Parts. I also cannot join the Court's phrasing of the "question presented," ante at 370-371, or its distress and concern with the publicity the Clapp murder received in the Seneca County, N.Y. area.
Today's decision, as I view it, is an unfortunate one. I fear that the Court surrenders to the temptation to overstate and overcolor the actual nature of the pre-August 7, 1976, publicity; that it reaches for a strict and flat result; and that, in the process, it ignores the important antecedents and significant developmental features of the Sixth Amendment. The result is an inflexible per se rule, as MR. JUSTICE REHNQUIST so appropriately observes in his separate concurrence, ante at 403-404. That rule is to the effect that, if the defense and the prosecution merely agree to have the public excluded from a suppression hearing, and the trial judge does not resist -- as trial judges may be prone not to do, since nonresistance is easier than resistance -- closure shall take place, and there is nothing in the Sixth Amendment that prevents [p407] that happily agreed upon event. The result is that the important interests of the public and the press (as a part of that public) in open judicial proceedings are rejected and cast aside as of little value or significance.
Because I think this easy but wooden approach is without support either in legal history or in the intendment of the Sixth Amendment, I dissent.
The Court's review of the facts, ante at 371-377, does not face up to the placid, routine, and innocuous nature of the news articles about the case and, indeed, their comparative infrequency. I attempt to supply what is missing:
The reporting by both newspapers on August 3 of the filing of the indictments was the first time either of the two papers had carried any comment about the case since July 25, nine days before. On August 6, each paper carried a story reporting the arraignments of Greathouse and Jones on the preceding day. Thereafter, no story about the Clapp case appeared in petitioner's papers until the suppression hearing on November 4. Thus, for 90 days preceding that hearing, there was no publicity whatsoever. From July 20, when the first story appeared, until August 6, a period of 18 days, 14 different articles were printed in the two papers. Because the evening paper usually reprinted or substantially duplicated the morning story, there were articles on only 7 different days during this 18-day period, with the evening story containing little that differed from the morning story on the 5 days that accounts appeared in both papers.
Furthermore, there can be no dispute whatsoever that the stories consisted almost entirely of straightforward reporting of the facts surrounding the investigation of Clapp's disappearance, and of the arrests and charges. The stories contained no "editorializing" and nothing that a fair-minded person could describe as sensational journalism. Only one picture appeared; it was a photograph of Clapp that accompanied [p408] the first story printed by the Times-Union. There is nothing in the record to indicate that the stories were placed on the page or within the paper so as to play up the murder investigation. Headlines were entirely factual. The stories were relatively brief. They appeared only in connection with a development in the investigation, and they gave no indication of being published to sustain popular interest in the case.
The motions to suppress came on before Judge DePasquale on November 4. Despite the absence of any publicity in the newspapers for three months, counsel for both defendants, at the commencement of the hearing and without previously having indicated their intention so to do, asked for the exclusion of all members of the public and press present in the courtroom. They urged as grounds for their motions that "we are going to take evidentiary matters into consideration here that may or may not be brought forth subsequently at a trial." App. 4. After being reminded by the court that the defendants had a constitutional right to a public trial and that such exclusion "does abridge the rights, the constitutional rights, of the defendants," Greathouse's attorney, joined by Jones' lawyer, stated:
I fully understand that, your Honor, but this is not a trial, it is a hearing, and I think the dilatorious [sic] effects far outweigh the constitutional rights.
Id. at 5. The court then turned to the District Attorney. The prosecutor indicated that he did not wish to be heard with respect to the motion, and said only: "I stated earlier that I thought it was up to the defense, and I would not oppose what they wished to do." Ibid. Thereupon the court, without further inquiry, granted the motion for closure. It said that "it is not the trial of the matter," and that "matters may come up in the testimony of the People's witnesses that may be prejudicial to the defendant." Id. at 6.
We therefore have a situation where the two defense attorneys, suddenly and without notice, moved that the suppression hearing be closed, and where the prosecutor, obviously taken off guard and having no particularly strong feeling, or any [p409] considered position, acquiesced. The court, to its credit, was sensitive about the rights of the defendants to a public proceeding, even though it thought "it is not the trial of the matter." The court obviously was not impressed with any brooding presence of possible prejudicial publicity. Its comment was only that "evidentiary matters may come up . . . that may be prejudicial." It is difficult to imagine anything less sensational in a murder context.
Yet this is all that the Court possesses to justify its description of the question presented as one in the context of an agreement by the accused, the prosecutor, and the trial judge to have closure "in order to assure a fair trial," ante at 371, and the hearing as one where, ante at 375, "defense attorneys argued that the unabated buildup of adverse publicity had jeopardized the ability of the defendants to receive a fair trial."
I find little in the record that tends to support either of those descriptions of such serious consequence. There is no reference to or inference of an "unabated buildup of adverse publicity." All the defense attorneys spoke of were "the dilatorious effects" of "evidentiary matters . . . that may or may not be brought forth subsequently at a trial." App. 5, 4. MR. JUSTICE REHNQUIST notes this thin concern. Ante at 403-404. The defense lawyers were representing their clients, of course, and perhaps were properly overcautious, but they certainly favored the court with nothing about "unabated buildup of adverse publicity" that must be prevented "in order to assure a fair trial." In fairness to the Court today, its colorful allusions to what it assumes took place when the motions were presented on November 4 may be attributable to comments in the opinion of the majority of the New York Court of Appeals: [n1]
At the commencement of a pretrial suppression hearing, [p410] defense attorneys argued that an unabated buildup of adverse publicity had already jeopardized their clients' ability to receive a fair trial.
43 N.Y.2d 370, 375, 372 N.E.2d 544, 546.
The details, however, were not known, and public curiosity was intense.
Id. at 381, 372 N.E.2d at 550.
The New York majority went on to rule that the presumption of closure was raised in this case because the public knew that respondents Greathouse and Jones "had been caught ‘red-handed' by Michigan police with fruits of the crime," and because it was "widely known" that they "had made incriminating statements before being returned to" New York. Ibid., 372 N.E.2d at 550. And the court found that the level of "legitimate public concern" necessary to overcome the presumption of closure had not been demonstrated:
Widespread public awareness kindled by media saturation does not legitimize mere curiosity. Here, the public's concern was not focused on prosecutorial or judicial accountability; irregularities, if any, had occurred out of State. The interest of the public was chiefly one of active curiosity with respect to a notorious local happening.
Ibid., 372 N.E.2d at 550.
With all respect, it is difficult for me to extract all of that from the casual comments made at the hearing before Judge DePasquale. Cf. People v. Jones, 47 N.Y.2d 409, 391 N.E.2d 1335 (1979).
This Court confronts in this case another aspect of the recurring conflict that arises whenever a defendant in a criminal case asserts that his right to a fair trial clashes with the right of the public in general, and of the press in particular, to an [p411] open proceeding. It has considered other aspects of the problem in deciding whether publicity was sufficiently prejudicial to have deprived the defendant of a fair trial. Compare Murphy v. Florida, 421 U.S. 794 (1975), with Sheppard v. Maxwell, 384 U.S. 333 (1966). And recently it examined the extent to which the First and Fourteenth Amendments protect news organizations' rights to publish, free from prior restraint, information learned in open court during a pretrial suppression hearing. Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976). But the Court has not yet addressed the precise issue raised by this case: whether and to what extent the Constitution prohibits the States from excluding, at the request of a defendant, members of the public from such a hearing. See id. at 564 n. 8; id. at 584 n. 11 (BRENNAN, J., concurring in judgment); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1308 n. 3 (1974) (POWELL, J., in chambers).
It is clear that this case does not involve the type of prior restraint that was in issue in cases like Nebraska Press. Neither the County Court nor the Court of Appeals restrained publication of, or comment upon, information already known to the public or the press, or about the case in general. The issue here, then, is not one of prior restraint on the press, but is, rather, one of access to a judicial proceeding.
Despite MR JUSTICE POWELL's concern, ante p. 397, this Court heretofore has not found, and does not today find, any First Amendment right of access to judicial or other governmental proceedings. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 608-610 (1978); Pell v. Procunier, 417 U.S. 817, 834 (1974). One turns then, instead, to that provision of the Constitution that speaks most directly to the question of access to judicial proceedings, namely, the public trial provision of the Sixth Amendment.
The familiar language of the Sixth Amendment reads: "In all criminal prosecutions, the accused shall enjoy the right [p412] to a speedy and public trial." This provision reflects the tradition of our system of criminal justice that a trial is a "public event," and that "[w]hat transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 (1947). And it reflects, as well, "the notion, deeply rooted in the common law, that ‘justice must satisfy the appearance of justice.'" Levine v. United States, 362 U.S. 610, 616 (1960), quoting Offutt v. United States, 348 U.S. 11, 14 (1954).
More importantly, the requirement that a trial of a criminal case be public embodies our belief that secret judicial proceedings would be a menace to liberty. The public trial is rooted in the "principle that justice cannot survive behind walls of silence," Sheppard v. Maxwell, 384 U.S. at 349, and in the "traditional Anglo-American distrust for secret trials," In re Oliver, 333 U.S. 257, 268 (1948). This Nation's accepted practice of providing open trials in both federal and state courts
has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.
Id. at 270.
The public trial guarantee, moreover, ensures that not only judges, but all participants in the criminal justice system, are subjected to public scrutiny as they conduct the public's business of prosecuting crime. This publicity "guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Sheppard v. Maxwell, 384 U.S. at 350. Publicity "serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975).
The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are without question events of legitimate [p413] concern to the public.
Ibid. Indeed, such information is "of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." Id. at 495. [n2] Even in those few cases in which the Court has permitted limits on courtroom publicity out of concern for prejudicial coverage, it has taken care to emphasize that publicity of judicial proceedings "has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field." Sheppard v. Maxwell, 384 U.S. at 350. And in Estes v. Texas, 381 U.S. 532, 541 (1965), the Court found that it "is true that the public has the right to be informed as to what occurs in its courts." MR. JUSTICE STEWART, the author of the Court s opinion here, stated in dissent in Estes, id. at 614-615: "The suggestion that there are limits upon the public's right to know what goes on in the courts causes me deep concern." [p414]
The importance we as a Nation attach to the public trial is reflected both in its deep roots in the English common law and in its seemingly universal recognition in this country since the earliest times. When In re Oliver was decided in 1948, the Court was
unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country,
333 U.S. at 266 (footnote omitted), with the exception of cases in courts-martial and the semi-private conduct of juvenile court proceedings. Id. at 266 n. 12. Nor could it uncover any record "of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641." Ibid. This strong tradition of publicity in criminal proceedings, and the States' recognition of the importance of a public trial, led the Court in In re Oliver to conclude that the Sixth Amendment's guarantee of a public trial, as applied to the States through the Fourteenth Amendment, proscribed conviction through the type of secret process at issue in that case.
The public trial concept embodied in the Sixth Amendment remains a fundamental and essential feature of our system of criminal justice in both the federal courts and in the state courts. [n3] The Due Process Clause of the Fourteenth Amendment [p415] requires that, in criminal cases, the States act in conformity with the public trial provision of the Sixth Amendment. Duncan v. Louisiana, 391 U.S. 145, 148 (1968); 391 U.S. 145, 148 (1968); Argersinger v. Hamlin, 407 U.S. 25, 28 (1972).
By its literal terms, the Sixth Amendment secures the right to a public trial only to "the accused." And in this case, the accused were the ones who sought to waive that right, and to have the public removed from the pretrial hearing in order to guard against publicity that possibly would be prejudicial to them. The Court is urged, accordingly, to hold that the decision of respondents Greathouse and Jones to submit to a private hearing is controlling.
The Court, however, previously has recognized that the Sixth Amendment may implicate interests beyond those of the accused. In Barker v. Wingo, 407 U.S. 514 (1972), for example, the Court unanimously found this to be so with respect to the right to a speedy trial.
In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at [p416] times in opposition to, the interests of the accused.
Id. at 519. This separate public interest led the Court to reject a rule that would have made the defendant's assertion of his speedy trial right the critical factor in deciding whether the right had been denied, for a rule depending entirely on the defendant's demand failed to take into account that "society has a particular interest in bringing swift prosecutions." Id. at 527.
The same is true of other provisions of the Sixth Amendment. In Singer v. United States, 380 U.S. 24 (1965), the Court rejected a contention that, since the constitutional right to a jury trial was the right of the accused, he had an absolute right to be tried by a judge alone if he considered a bench trial to be to his advantage. Rejecting a mechanistic waiver approach, the Court reviewed the history of trial by jury at English common law and the practice under the Constitution. The common law did not indicate that the accused had a right to compel a bench trial. Although there were isolated instances where such a right had been recognized in the American Colonies, the Court could find no
general recognition of a defendant's right to be tried by the court, instead of by a jury. Indeed, if there had been recognition of such a right, it would be difficult to understand why Article III and the Sixth Amendment were not drafted in terms which recognized an option.
Id. at 31. Noting that practice under the Constitution similarly established no independent right to a bench trial, the Court held that neither the jury trial provision in Art. III, § 2, [n4] nor the Sixth Amendment empowered an accused to compel the opposite of what he was guaranteed specifically by the Constitution.
The Court in Singer recognized that, in Patton v. United States, 281 U.S. 276 (1930), it had held that a defendant could waive his jury trial right, but it held that a proffered [p417] waiver need not be given effect in all cases. Quoting Patton, 281 U.S. at 312, the Court observed:
Trial by jury has been established by the Constitution as the "normal and . . . preferable mode of disposing of issues of fact in criminal cases."
380 U.S. at 35. The Court rejected
the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process.
Id. at 36. Rather, the Court said, a defendant's "only constitutional right concerning the method of trial is to an impartial trial by jury." Ibid. Accordingly, the Court concluded that the Constitution was no impediment to conditioning the grant of a request for a bench trial upon the consent of the court and the Government.
In Singer, the Court also recognized that similar reasoning is applicable to other provisions to the Sixth Amendment. "The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right." Id. at 34-35. For example, although the accused
can waive his right to be tried in the State and district where the crime was committed, he cannot in all cases compel transfer of the case to another district.
Id. at 35. While he "can waive his right to be confronted by the witnesses against him," he cannot thereby compel the prosecution "to try the case by stipulation." And, most relevant here,
although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial.
Indeed, in only one case, apparently, Faretta v. California, 422 U.S. 806 (1975), has this Court ever inferred from the Sixth Amendment a right that fairly may be termed the "opposite" of an explicit guarantee. In Faretta, the Court found that not only did the Amendment secure the assistance of counsel to the defendant in a criminal prosecution, but, by inference, it also granted him the right to self-representation. [p418] In so ruling, however, the Court was careful to stress that it followed Singer's holding that the ability to waive a Sixth Amendment right did not carry with it the automatic right to insist upon its opposite. "The inference of rights is not, of course, a mechanical exercise." 422 U.S. at 819 n. 15. By inferring the existence of a right to self-representation, the Court did not mean to
suggest that this right arises mechanically from a defendant's power to waive the right to the assistance of counsel. . . . On the contrary, the right must be independently found in the structure and history of the constitutional text.
Id. at 819-820, n. 15. Following the approach of Singer, then, the Court found that "the structure of the Sixth Amendment, as well as . . . the English and colonial jurisprudence from which the Amendment emerged," 422 U.S. at 818, established the existence of an independent right of self-representation.
It is thus clear from Singer, Barker, and Faretta that the fact the Sixth Amendment casts the right to a public trial in terms of the right of the accused is not sufficient to permit the inference that the accused may compel a private proceeding simply by waiving that right. Any such right to compel a private proceeding must have some independent basis in the Sixth Amendment. In order to determine whether an independent basis exists, we should examine, as the Court did in Singer, the common law and colonial antecedents of the public trial provision, as well as the original understanding of the Sixth Amendment. If no such basis is found, we should then turn to the function of the public trial in our system, so that we may decide under what circumstances, if any, a trial court may give effect to a defendant's attempt to waive his right.
1. The Court, in In re Oliver, 333 U.S. at 266, recognized that this Nation's "accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage." Study of that heritage reveals that the tradition [p419] of conducting the proceedings in public came about as an inescapable concomitant of trial by jury, quite unrelated to the rights of the accused, and that the practice at common law was to conduct all criminal proceedings in public.
Early Anglo-Saxon criminal proceedings were "open-air meetings of the freemen who were bound to attend them." F. Pollock, The Expansion of the Common Law 140 (1904) (hereinafter Pollock). Criminal trials were by compurgation or by ordeal, and took place invariably before the assembled community, many of whom were required to attend. 1 W. Holdsworth, A History of English Law 7-24 (4th ed.1927) (hereinafter Holdsworth). This Anglo-Saxon tradition of conducting a judicial proceeding "like an ill-managed public meeting," Pollock 30, persisted after the Conquest, when the Norman kings introduced in England the Frankish system of conducting inquests by means of a jury. Wherever royal justice was introduced, the jury system accompanied it, and both spread rapidly throughout England in the years after 1066. 1 Holdsworth 316. The rapid spread of royal courts led to the replacement of older methods of trial, which were always public, with trial by jury with little procedural change. The jury trial "was simply substituted for [older methods], and was adapted with as little change as possible to its new position." Id. at 317. This substitution of royal justice for traditional law served the Crown's interests by
enlarging the king's jurisdiction and bringing well earned profit in fines and otherwise to the king's exchequer, and the best way of promoting those ends was to develop the institution, or let it develop itself, along the lines of least resistance.
Thus, the common law from its inception was wedded to the Anglo-Saxon tradition of publicity, and the "ancient rul[e that c]ourts of justice are public," id. at 51, was in turn strengthened by the hegemony the royal courts soon established over the administration of justice. Bentham noted that by this accommodation of the common law to the Anglo-Saxon [p420] practice of holding open courts, "publicity . . . became a natural, and, as good fortune would have it, at length an inseparable, concomitant" of English justice. 1 J. Bentham, The Rationale of Judicial Evidence 585-585 (1827).
Publicity thus became intrinsically associated with the sittings of the royal courts. Coke noted that the very words "In curia Domini Regis" ("In the King's Court"), in the Statutum de Marleberge, ch. 1, enacted in 1267, 52 Hen. 3, indicated public proceedings. 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681). [n5]
This and other commentary [n6] indicate that by the 17th century the concept of a public trial was firmly established under the common law. Indeed, there is little record, if any, of secret proceedings, criminal or civil, having occurred at any time in known English history. Apparently, not even the Court of Star Chamber, the name of which has been linked with secrecy, conducted hearings in private. 5 Holdsworth 156, and nn. 5 and 7, and 163; Radin, The Right to a Public Trial, 6 Temp.L.Q. 381, 386-387 (1932). Rather, the unbroken tradition of the English common law was that criminal trials were conducted
openlie in the presence of the Judges, [p421] the Justices, the enquest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide.
T. Smith, De Republica Anglorum 101 (Alston ed.1972).
In the light of this history, it is most doubtful that the tradition of publicity ever was associated with the rights of the accused. The practice of conducting the trial in public was established as a feature of English justice long before the defendant was afforded even the most rudimentary rights. For example, during the century preceding the English Civil War, the defendant was kept in secret confinement, and could not prepare a defense. He was not provided with counsel either before or at the trial. He was given no prior notice of the charge or evidence against him. He probably could not call witnesses on his behalf. Even if he could, he had no means to procure their attendance. Witnesses were not necessarily confronted with the prisoner. Document originals were not required to be produced. There were no rules of evidence. The confessions of accomplices were admitted against each other and regarded as specially cogent evidence. And the defendant was compelled to submit to examination. 1 J. Stephen, A History of the Criminal Law of England 350 (1883). Yet the trial itself, without exception, was public.
It is not surprising, therefore, that both Hale and Blackstone, in identifying the function of publicity at common law, discussed the open trial requirement not in terms of individual liberties, but in terms of the effectiveness of the trial process. Each recognized publicity as an essential of trial at common law. And each emphasized that the requirement that evidence be given in open court deterred perjury, since "a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal." 3 W. Blackstone, Commentaries *373. See M. Hale, The History of the Common Law of England 343, 345 (6th ed. 1820). [p422] Similarly, both recognized that publicity was an effective check on judicial abuse, since publicity made it certain that "if the judge be PARTIAL, his partiality and injustice will be evident to all by-standers." Id. at 344. See 3 W. Blackstone, Commentaries *372. [n7]
In the same vein, Bentham stressed that publicity was
the most effectual safeguard of testimony, and of the decisions depending on it; it is the soul of justice; it ought to be extended to every part of the procedure, and to all causes.
J. Bentham, A Treatise On Judicial Evidence 67 (1825). Bentham believed that, above all, publicity was the most effectual safeguard against judicial abuse, without which all other checks on misuse of judicial power became ineffectual. 1 J. Bentham, The Rationale of Judicial Evidence 525 (1827). And he contended that publicity was of such importance to the administration of justice, especially in criminal cases, that it should not be dispensed with even at the request of the defendant.
The reason is . . . there is a party interested (viz. the public at large) whose interest might, by means of the privacy in question, and a sort of conspiracy, more or less explicit, between the other persons concerned (the judge included) be made a sacrifice.
Id. at 576-577.
This English common law tradition concerning public trials out of which the Sixth Amendment provision grew is not made up of "shreds of English legal history and early state constitutional and statutory provisions," see Faretta v. California, 422 U.S. at 843 (dissenting opinion describing the right of self-representation), pieced together to produce the desired result. [p423] Whatever may be said of the historical analysis of other Sixth Amendment provisions, history here reveals an unbroken tradition at English common law of open judicial proceedings in criminal cases. In publicity, we "have one tradition, at any rate, which has persisted through all changes" from Anglo-Saxon times through the development of the modern common law. Pollock 31-32. See E. Jenks, The Book of English Law 73-74 (6th ed.1967). There is no evidence that criminal trials of any sort ever were conducted in private at common law, whether at the request of the defendant or over his objection. And there is strong evidence that the public trial, which developed before other procedural rights now routinely afforded the accused, widely was perceived as serving important social interests, relating to the integrity of the trial process, that exist apart from, and conceivably in opposition to, the interests of the individual defendant. Accordingly, I find no support in the common law antecedents of the Sixth Amendment public trial provision for the view that the guarantee of a public trial carries with it a correlative right to compel a private proceeding. [n8] [p424]
2. This English common law view of the public trial early was transplanted to the American Colonies, largely through the influence of the common law writers whose views shaped the early American legal systems. "Coke's Institutes were read in the American Colonies by virtually every student of the law," Klopfer v. North Carolina, 386 U.S. 213, 225 (1967), and no citation is needed to establish the impact of Hale and Blackstone on colonial legal thought. Early colonial charters reflected the view that open proceedings were an essential quality of a court of justice, and they cast the concept of a public trial in terms of a characteristic of the system of justice, rather than of a right of the accused. Indeed, the first public trial provision to appear in America spoke in terms of the right of the public, not the accused, to attend trials:
That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner.
Concessions and Agreements of West New Jersey (1677), ch. XXIII, quoted in 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971) (hereinafter Schwartz). [p425] Similarly, the Pennsylvania Frame of Government of 1682, which Professor Schwartz described as, "[i]n many ways, [one of] the most influential of the Colonial documents protecting individual rights," 1 Schwartz 130, provided that, in William Penn's colony, "all courts shall be open." Id. at 140.
This practice of conducting judicial proceedings in criminal cases in public took firm hold in all the American Colonies. There is no evidence that any colonial court conducted criminal trials behind closed doors, or that any recognized the right of an accused to compel a private trial.
Neither is there any evidence that casting the public trial concept in terms of a right of the accused signaled a departure from the common law practice by granting the accused the power to compel a private proceeding. The first provision to speak of the public trial as an entitlement of the accused apparently was that in ¶ IX of the Pennsylvania Declaration of Rights of 1776. It said that, "in all prosecutions for criminal offences, a man hath a right to . . . a speedy public trial." See 1 Schwartz 265. The provision was borrowed almost verbatim from the Virginia Declaration of Rights, adopted earlier the same year, with one change: the word "public" was added. Virginia's Declaration had provided only that the accused "hath a right to . . . a speedy trial." See id. at 235. It is doubtful that, by adding this single word, Pennsylvania intended to depart from its historic practice by creating a right waivable by the defendant, for at the time its Declaration of Rights was adopted, Pennsylvania also adopted its Constitution of 1776, providing, in § 26, that "[a]ll courts shall be open." See 1 Schwartz 271. And there is no evidence that, after 1776, Pennsylvania departed from earlier practice, either by conducting trials in private or by recognizing a power in the accused to compel a nonpublic proceeding. [n9] [p426]
Similarly, there is no indication that the First Congress, in proposing what became the Sixth Amendment, meant to depart from the common law practice by creating a power in an accused to compel a private proceeding. The Constitution as originally adopted, of course, did not contain a public trial guarantee. And though several States proposed amendments to Congress along the lines of the Virginia Declaration, only New York mentioned a "public" trial. See E. Dumbauld, The Bill of Rights 173-205 and, specifically, 190 (1957); 1 Elliot's Debates 328 (2d ed. 1836). But New York did not follow Virginia's language by casting the right as one belonging only to the accused; it urged, rather, that Congress should propose an amendment providing that the "trial should be speedy, public, and by an impartial jury . . ." Amendments Proposed by New York (1788), quoted in 1 Elliot's Debates, at 328.
I am thus persuaded that Congress, modeling the proposed amendment on the cognate provision in the Virginia Declaration, as many States had urged, did merely what Pennsylvania had done in 1776, namely, added the word "public" to the Virginia language without at all intending thereby to create a correlative right to compel a private proceeding. Indeed, in light of the settled practice at common law, one may also say here that,
if there had been recognition of such a right, it would be difficult to understand why . . . the Sixth Amendment [was] not drafted in terms which recognized an option.
Singer v. United States, 380 U.S. at 31. And, to use the language of the Court in Faretta v. California, 422 [p427] U.S. at 832: "If anyone had thought that the Sixth Amendment, as drafted," departed from the common law principle of publicity in criminal proceedings, "there would undoubtedly have been some debate or comment on the issue. But there was none." Mr. Justice Story, writing when the adoption of the Sixth Amendment was within the memory of living man, noted that,
in declaring, that the accused shall enjoy the right to a speedy and public trial . . . [the Sixth Amendment] does but follow out the established course of the common law in all trials for crimes. The trial is always public.
3 J. Story, Commentaries on the Constitution of the United States 662 (1833).
I consequently find no evidence in the development of the public trial concept in the American Colonies and in the adoption of the Sixth Amendment to indicate that there was any recognition in this country, any more than in England, of a right to a private proceeding or a power to compel a private trial arising out of the ability to waive the grant of a public one. I shall not indulge in a mere mechanical inference that, by phrasing the public trial as one belonging to the accused, the Framers of the Amendment must have meant the accused to have the power to dispense with publicity.
3. I thus conclude that there is no basis in the Sixth Amendment for the suggested inference. I also find that, because there is a societal interest in the public trial that exists separately from, and at times in opposition to, the interests of the accused, cf. Barker v. Wingo, 407 U.S. at 519, a court may give effect to an accused's attempt to waive his public trial right only in certain circumstances.
The courts and the scholars of the common law perceived the public trial tradition as one serving to protect the integrity of the trial and to guard against partiality on the part of the court. The same concerns are generally served by the public trial today. The protection against perjury which publicity provides, and the opportunity publicity offers to unknown witnesses to make themselves known, do not necessarily serve [p428] the defendant. See 6 J. Wigmore, Evidence § 1834 (Chadbourn rev.1976) (hereinafter Wigmore). The public has an interest in having criminal prosecutions decided on truthful and complete records, and this interest, too, does not necessarily coincide with that of the accused.
Nor does the protection against judicial partiality serve only the defendant. It is true that the public trial provision serves to protect every accused from the abuses to which secret tribunals would be prone. But the defendant himself may benefit from the partiality of a corrupt, biased, or incompetent judge, "for a secret trial can result in favor to, as well as unjust prosecution of, a defendant." Lewis v. Peyton, 352 F.2d 791, 792 (CA4 1965).
Open trials also enable the public to scrutinize the performance of police and prosecutors in the conduct of public judicial business. Trials, and particularly suppression hearings, typically involve questions concerning the propriety of police and government conduct that took place hidden from the public view. Any interest on the part of the prosecution in hiding police or prosecutorial misconduct or ineptitude may coincide with the defendant's desire to keep the proceedings private, with the result that the public interest is sacrificed from both sides.
Public judicial proceedings have an important educative role as well. The victim of the crime, the family of the victim, others who have suffered similarly, or others accused of like crimes, have an interest in observing the course of a prosecution. Beyond this, however, is the interest of the general public in observing the operation of the criminal justice system. Judges, prosecutors, and police officials often are elected or are subject to some control by elected officials, and a main source of information about how these officials perform is the open trial. And the manner in which criminal justice is administered in this country is, in and of itself, of interest to all citizens. In Cox Broadcasting Corp. v. Cohn, [p429] 420 U.S. at 495, it was noted that information about the criminal justice system "appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business."
Important in this regard, of course, is the appearance of justice.
Secret hearings -- though they be scrupulously fair in reality -- are suspect by nature. Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view.
United States v. Canfrani, 573 F.2d 835, 851 (CA3 1978). The ability of the courts to administer the criminal laws depends in no small part on the confidence of the public in judicial remedies, and on respect for and acquaintance with the processes and deliberations of those courts. 6 Wigmore § 1834, at 438. Anything that impairs the open nature of judicial proceedings threatens to undermine this confidence, and to impede the ability of the courts to function.
These societal values secured by the public trial are fundamental to the system of justice on both the state and federal levels. As such, they have been recognized by the large majority of both state [n10] and federal [n11] courts that have considered [p430] the issue over the years since the adoption of the Constitution. Indeed, in those States with constitutional provisions [p431] modeled on the Sixth Amendment, guaranteeing the right to a public trial literally only to the accused, there has [p432] been widespread recognition that such provisions serve the interests of the public as well as those of the defendant. [n12]
I therefore conclude that the Due Process Clause of the Fourteenth Amendment, insofar as it incorporates the public [p433] trial provision of the Sixth Amendment, prohibits the States from excluding the public from a proceeding within the ambit of the Sixth Amendment's guarantee without affording full and fair consideration to the public's interests in maintaining an open proceeding. And I believe that the Sixth and Fourteenth Amendments require this conclusion notwithstanding the fact it is the accused who seeks to close the trial. [n13]
Before considering whether and under what circumstances a court may conduct a criminal proceeding in private, one must first decide whether the Sixth Amendment, as applied through the Fourteenth, encompasses the type of pretrial hearing contemplated by Jackson v. Denno, 378 U.S. 368 (1964), and at issue in this case. The Amendment, of course, speaks only of a public "trial." Both the County Court and the New York Court of Appeals emphasized that exclusion from the formal trial on the merits was not at issue, apparently in the belief that the Sixth Amendment's public trial provision applies with less force, or not at all, to a pretrial proceeding. [p434]
I find good reason to hold that even if a State, as it may, chooses to hold a Jackson v. Denno or other suppression hearing separate from and prior to the full trial, the Sixth Amendment's public trial provision applies to that hearing. First, the suppression hearing resembles and relates to the full trial in almost every particular. Evidence is presented by means of live testimony, witnesses are sworn, and those witnesses are subject to cross-examination. Determination of the ultimate issue depends in most cases upon the trier of fact's evaluation of the evidence, and credibility is often crucial. Each side has incentive to prevail, with the result that the role of publicity as a testimonial safeguard, as a mechanism to encourage the parties, the witnesses, and the court to a strict conscientiousness in the performance of their duties, and in providing a means whereby unknown witnesses may become known, is just as important for the suppression hearing as it is for the full trial.
Moreover, the pretrial suppression hearing often is critical, and it may be decisive, in the prosecution of a criminal case. If the defendant prevails, he will have dealt the prosecution's case a serious, perhaps fatal, blow; the proceeding often then will be dismissed or negotiated on terms favorable to the defense. If the prosecution successfully resists the motion to suppress, the defendant may have little hope of success at trial (especially where a confession is in issue), with the result that the likelihood of a guilty plea is substantially increased. United States v. Clark, 475 F.2d 240, 246-247 (CA2 1973); United States v. Cianfrani, 573 F.2d at 848-851.
The suppression hearing often is the only judicial proceeding of substantial importance that takes place during a criminal prosecution. In this very case, the hearing from which the public was excluded was the only one in which the important factual and legal issues in the prosecution of respondents Greathouse and Jones were considered. It was the only proceeding at which the conduct of the police, prosecution, and [p435] the court itself was exposed to scrutiny. Indeed, in 1976, when this case was processed, every felony prosecution in Seneca County -- and I say this without criticism -- was terminated without a trial on the merits. N.Y.Leg.Doc. No. 90, Judicial Conference of the State of New York, 22d Annual Report 55 (1977). This statistic is characteristic of our state and federal criminal justice systems as a whole, [n14] and it underscores the importance of the suppression hearing in the functioning of those systems.
Further, the issues considered at such hearings are of great moment beyond their importance to the outcome of a particular prosecution. A motion to suppress typically involves, as in this case, allegations of misconduct by police and prosecution that raise constitutional issues. Allegations of this kind, although they may prove to be unfounded, are of importance to the public as well as to the defendant. The searches and interrogations that such hearings evaluate do not take place in public. The hearing therefore usually presents the only opportunity the public has to learn about police and prosecutorial conduct, and about allegations that those responsible to the public for the enforcement of laws themselves are breaking it.
A decision to suppress often involves the exclusion of highly relevant evidence. Because this is so, the decision may generate controversy. See Bivens v. Six Unknown Fed. Narcotics [p436] Agents, 403 U.S. 388, 412-420 (1971) (dissenting opinion). It is important that any such decision be made on the basis of evidence and argument offered in open court, so that all who care to see or read about the case may evaluate for themselves the propriety of the exclusion.
These factors lead me to conclude that a pretrial suppression hearing is the close equivalent of the trial on the merits for purposes of applying the public trial provision of the Sixth Amendment. Unlike almost any other proceeding apart from the trial itself, the suppression hearing implicates all the policies that require that the trial be public. For this reason, I would be loath to hold that a State could conduct a pretrial Jackson v. Denno hearing in private over the objection of the defendant. And for this same reason, the public's interest in the openness of judicial proceedings is implicated fully when it is the accused who seeks to exclude the public from such a hearing. Accordingly, I conclude that the Sixth and Fourteenth Amendments prohibit a State from conducting a pretrial suppression hearing in private, even at the request of the accused, unless full and fair consideration is first given to the public's interest, protected by the Amendments, in open trials. [n15]
The Court holds, however, that, even assuming the Sixth and Fourteenth Amendments could be viewed as embodying a public right of access to trials, there was no common law right in members of the public to attend preliminary proceedings.
But I have not said that there was. I have demonstrated that there was a right to attend trials. And I have said that, because of the critical importance of suppression hearings to our systems of criminal justice -- as well as because of the close similarity in form of a suppression hearing to a full [p437] trial -- for purposes of the Sixth Amendment public trial provision the pretrial suppression hearing at issue in this case must be considered part of the trial.
It is significant that the sources upon which the Court relies do not concern suppression hearings. They concern hearings to determine probable cause to bind a defendant over for trial. E.g., Indictable Offences Act, 11 & 12 Vict., ch. 42, §§ 17, 19 (1848); Cal.Penal Code Ann. § 868 (West Supp. 1979). Such proceedings are not critical to the criminal justice system in the way the "suppression of evidence" hearing is, and they are not close equivalents of the trial itself in form. The fact that such proceedings might have been held in private at common law in England or in this country does not detract from my conclusion that pretrial suppression hearings should not be, any more than does the fact that grand juries -- or preliminary proceedings such as coroner's inquests at common law -- were and are secret.
Indeed, the modern suppression hearing, unknown at common law, is a type of objection to evidence such as took place at common law, and as takes place today in the case of nonconstitutional objections, in open court during trial. There is no federal requirement that States conduct suppression hearings prior to trial. See Pinto v. Pierce, 389 U.S. 31, 32 (1967). I assume that, if such an objection were made during trial, it would be made in open court during the course of the public trial. I am unwilling to allow the temporal factor to control whether the public will be able to have access to the proceeding.
The Court also must believe that not even the accused has a right to a public pretrial suppression hearing. For if, as the Court assumes for the sake of argument, there is a public right to attend trials that the Sixth Amendment protects, it is difficult to see why, if that right does not extend to preliminary proceedings insofar as the public is concerned it should extend to such proceedings insofar as the defendant [p438] is concerned. And many of the precedents upon which the Court relies denied a public preliminary proceeding to the accused, as well as to the public. E.g., Indictable Offences Act, 11 & 12 Vict., ch. 42, § 17 (1848).
Alternatively, the Court finds that the right to a public trial is the right of the accused only, and that the public has no enforceable interest in public trials. Under this analysis, the defendant -- so long as the prosecution and the judge agree -- may surely close a full trial on the merits as well as a pretrial suppression hearing. The Court's analysis would thus allow closed trials as well without providing for any standards to insure that "the public['s] . . . right to be informed as to what occurs in its courts" has been protected. Estes v. Texas, 381 U.S. at 541.
I, for one, am unwilling to allow trials and suppression hearings to be closed with no way to ensure that the public interest is protected. Unlike the other provisions of the Sixth Amendment, the public trial interest cannot adequately be protected by the prosecutor and judge in conjunction, or connivance, with the defendant. The specter of a trial or suppression hearing where a defendant of the same political party as the prosecutor and the judge -- both of whom are elected officials perhaps beholden to the very defendant they are to try -- obtains closure of the proceeding without any consideration for the substantial public interest at stake is sufficiently real to cause me to reject the Court's suggestion that the parties be given complete discretion to dispose of the public's interest as they see fit. The decision of the parties to close a proceeding in such a circumstance, followed by suppression of vital evidence or acquittal by the bench, destroys the appearance of justice and undermines confidence in the judicial system in a way no subsequent provision of transcript might remedy. But even where no connivance occurs, prosecutors and judges may have their own reasons for preferring a closed proceeding. And a prosecutor, who seeks to obtain a conviction [p439] free from error, and a judge who seeks the same while protecting the defendant's rights, may lack incentive to assert some notion of the public interest in the face of a motion by a criminal defendant to close a trial.
At the same time, I do not deny that the publication of information learned in an open proceeding may harm irreparably, under certain circumstances, the ability of a defendant to obtain a fair trial. This is especially true in the context of a pretrial hearing, where disclosure of information, determined to be inadmissible at trial, may severely affect a defendant's rights. Although the Sixth Amendment's public trial provision establishes a strong presumption in favor of open proceedings, it does not require that all proceedings be held in open court when to do so would deprive a defendant of a fair trial.
No court has held that the Sixth Amendment imposes an absolute requirement that courts be open at all times. On the contrary, courts on both the state and federal levels have recognized exceptions to the public trial requirement even when it is the accused who objects to the exclusion of the public or a portion thereof. Thus, it is clear that the court may exclude unruly spectators or limit the number of spectators. And in both Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966), this Court held that a court may place restrictions on the access of the electronic media in particular, and certain types of newsgathering in general, inside the courthouse doors. There are a number of instances where the courts have gone further, and upheld the exclusion of the public for limited periods of time. Examples are when it was necessary to preserve the confidentiality of the Government's "skyjacker profile," United States v. Bell, 464 F.2d 667 (CA2), cert. denied, 409 U.S. 991 (1972), and when it was necessary to effectuate Congress' determination [p440] that the confidentiality of communications intercepted under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., be preserved prior to the determination that such communications were lawfully intercepted. United States v. Cianfrani, 573 F.2d 835 (CA3 1978).
I need express no opinion on the correctness of such decisions. But they illustrate that courts have been willing to permit limited exceptions to the principle of publicity where necessary to protect some other interest. Because of the importance we attach to a fair trial, it is clear that whatever restrictions on access the Sixth Amendment may prohibit in another context, it does not prevent a trial court from restricting access to a pretrial suppression hearing where such restriction is necessary in order to ensure that a defendant not be denied a fair trial as a result of prejudicial publicity flowing from that hearing. [n16] See Branzburg v. Hayes, 408 U.S. 665, 685 (1972).
At the same time, however, the public's interest in maintaining open courts requires that any exception to the rule be narrowly drawn. It comports with the Sixth Amendment to require an accused who seeks closure to establish that it is strictly and inescapably necessary in order to protect the fair trial guarantee. That finding must be made in the first instance, of course, by the trial court. I cannot detail here [p441] all the factors to be taken into account in evaluating the defendant's closure request, nor can I predict how the balance should be struck in every hypothetical case. The accused who seeks closure should establish, however, at a minimum, the following:
First, he should provide an adequate basis to support a finding that there is a substantial probability that irreparable damage to his fair trial right will result from conducting the proceeding in public. This showing will depend on the facts. But I think it requires evidence of the nature and extent of the publicity prior to the motion to close in order to establish a basis for the trial court to conclude that further coverage will result in the harm sought to be prevented. In most cases, this will involve a showing of the impact on the jury pool. This seldom can be measured with exactness, but information relating to the size of the pool, the extent of media coverage in the pertinent locality, and the ease with which change of venire can be accomplished or searching voir dire instituted to protect against prejudice, would be relevant. The court also should consider the extent to which the information sought to be suppressed is already known to the public, and the extent to which publication of such information, if unknown, would have an impact in the context of the publicity that has preceded the motion to close.
Second, the accused should show a substantial probability that alternatives to closure will not protect adequately his right to a fair trial. One may suggest numerous alternatives, but I think the following should be considered: continuance, severance, change of venue, change of venire, voir dire, peremptory challenges, sequestration, and admonition of the jury. ABA Project on Standards for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, p. 16 (App. Draft 1978). See Nebraska Press Assn. v. Stuart, 427 U.S. at 562-565; Sheppard v. Maxwell, 384 U.S. at 354 n. 9, 358-362. One or more of these alternatives may adequately protect the accused's [p442] interests and relieve the court of any need to close the proceeding in advance. [n17]
I note too that, for suppression hearings, alternatives to closure exist that would enable the public to attend but that would limit dissemination of the information sought to be suppressed. At most such hearings, the issues concern not so much the contents of a confession or of a wiretap, or the nature of the evidence seized, but the circumstances under which the prosecution obtained this material. Many hearings, with care, could be conducted in public with little risk that prejudicial information would be disclosed.
Third, the accused should demonstrate that there is a substantial probability that closure will be effective in protecting against the perceived harm. Where significantly prejudicial information already has been made public, there might well be little justification for closing a pretrial hearing in order to prevent only the disclosure of details.
I emphasize that the trial court should begin with the assumption that the Sixth Amendment requires that a pretrial [p443] suppression hearing be conducted in open court unless a defendant carries his burden to demonstrate a strict and inescapable necessity for closure. There should be a need for a representative of the public to demonstrate that the public interest is legitimate or genuine, or that the public seeks access out of something more than mere curiosity. Trials and suppression hearings, by their nature, are events of legitimate public interest, and the public need demonstrate no threshold of respectability in order to attend. This is not to say, of course, that a court should not take into account heightened public interest in cases of unusual importance to the community or to the public at large. The prosecution of an important officeholder could intensify public interest in observing the proceedings, and the court should take that interest into account where it is warranted. It is also true, however, that, as the public interest intensifies, so does the potential for prejudice.
As a rule, the right of the accused to a fair trial is compatible with the interest of the public in maintaining the publicity of pretrial proceedings. "In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to this important right." Nebraska Press Assn. v. Stuart, 427 U.S. at 551. Our cases
cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.
Murphy v. Florida, 421 U.S. 794, 799 (1975). A high level of publicity is not necessarily inconsistent with the ability of the defendant to obtain a fair trial where the publicity has been largely factual in nature, id. at 802; Beck v. Washington, 369 U.S. 541, 542-545, 557-558 (1962), or where it abated some time prior to trial. See Stroble v. California, 343 U.S. 181, 191-194 (1952).
In those cases where a court has found publicity sufficiently prejudicial as to warrant reversal on due process grounds, the publicity went far beyond the normal bounds of [p444] coverage. In Irvin v. Dowd, 366 U.S. 717 (1961), for example, there was a barrage of adverse publicity about the defendant's offer to plead guilty and his confession to several murders and burglaries. In Rideau v. Louisiana, 373 U.S. 723 (1963), there was live pretrial television coverage of the defendant's confession. And in Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966), the press, and especially the electronic media, intruded to such an extent on the courtroom proceedings that all semblance of decorum and sobriety was lost. See Nebraska Press Assn. v. Stuart, 427 U.S. at 551-556; Murphy v. Florida, 421 U.S. at 798-799.
But "[c]ases such as these are relatively rare." Nebraska Press, 427 U.S. at 554. All our decisions in this area, "[t]aken together, . . demonstrate that pretrial publicity -- even pervasive, adverse publicity -- does not inevitably lead to an unfair trial." Ibid. These cases provide the background against which a trial judge must evaluate a motion to close a hearing on the ground that an open hearing will result in publicity so prejudicial that a defendant will be deprived of his due process right to a fair trial. In Stroble, Murphy, and Beck, of course, the sharpened vision of hindsight helped the Court to see that the trial had been fair notwithstanding the publicity. The trial judge faced with a closure motion has the more difficult task of looking into the future. I do not mean to suggest that only in the egregious circumstances of cases such as Estes and Sheppard would closure be permissible. But, to some extent, the harm that the defendant fears from publicity is also speculative.
If, after considering the essential factors, the trial court determines that the accused has carried his burden of establishing that closure is necessary, the Sixth Amendment is no barrier to reasonable restrictions on public access designed to meet that need. Any restrictions imposed, however, should extend no further than the circumstances reasonably require. [p445] Thus, it might well be possible to exclude the public from only those portions of the proceeding at which the prejudicial information would be disclosed, while admitting to other portions where the information the accused seeks to suppress would not be revealed. United States v. Cianfrani, 573 F.2d at 854. Further, closure should be temporary, in that the court should ensure that an accurate record is made of those proceedings held in camera and that the public is permitted proper access to the record as soon as the threat to the defendant's fair trial right has passed.
I thus reject the suggestion that the defendant alone may determine when closure should occur. I also reject any notion that the decision whether to permit closure should be in the hands of the prosecutor on the theory that he is the representative of the public's interest. It is, in part, the public's interest in observing the conduct of the prosecutor, and the police with whom he is closely associated, that the public trial provision serves. To cloak his own actions or those of his associates from public scrutiny, a prosecutor thus may choose to close a hearing where the facts do not warrant it. Moreover, prosecutors often are elected, and the public has a strong interest, as noted, in observing the conduct of elected officials. In addition, the prosecutor may fear reversal on appeal if he too strenuously resists the motion of a defendant to close a hearing. Conversely, a prosecutor may wrap in the mantle of the public interest his desire to disseminate prejudicial information about an accused prior to trial, and so resist a motion to close where the circumstances warrant some restrictions on access. I thus am unwilling to commit to the discretion of the prosecutor, against whose own misconduct or incompetence the public trial requirement is designed in part to protect, the decision as to whether an accused's motion to close will be granted.
As a final safeguard, I would conclude that any person removed from a court should be given a reasonable opportunity to [p446] state his objections prior to the effectiveness of the order. This opportunity need not take the form of an evidentiary hearing; it need not encompass extended legal argument that results in delay; and the public need not be given prior notice that a closure order will be considered at a given time and place. But where a member of the public contemporaneously objects, the court should provide a reasonable opportunity to that person to state his objection. Finally, the court should state on the record its findings concerning the need for closure, so that a reviewing court may be adequately informed.
The Sixth Amendment, in establishing the public's right of access to a criminal trial and a pretrial proceeding, also fixes the rights of the press in this regard. Petitioner, as a newspaper publisher, enjoys the same right of access to the Jackson v. Denno hearing at issue in this case as does the general public. And what petitioner sees and hears in the courtroom it may, like any other citizen, publish or report consistent with the First Amendment. "Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom." Sheppard v. Maxwell, 384 U.S. at 362-363. Reporters for newspaper, television, and radio "are entitled to the same rights as the general public" to have access to the courtroom, Estes v. Texas, 381 U.S. at 540, where they "are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media." Id. at 541-542. "[O]nce a public hearing ha[s] been held, what transpired there could not be subject to prior restraint." Nebraska Press Assn. v. Stuart, 427 U.S. at 568.
Petitioner acknowledges that it seeks no greater rights than those due the general public. But it argues that, the Sixth Amendment aside, the First Amendment protects the free flow of information about judicial proceedings, and that this flow may not be cut off without meeting the standards required to [p447] justify the imposition of a prior restraint under the First Amendment. Specifically, petitioner argues that the First Amendment prohibits closure of a pretrial proceeding except in accord with the standards established in Nebraska Press and only after notice and hearing and a stay pending appeal.
I do not agree. As I have noted, this case involves no restraint upon publication or upon comment about information already in the possession of the public or the press. It involves an issue of access to a judicial proceeding. To the extent the Constitution protects a right of public access to the proceeding, the standards enunciated under the Sixth Amendment suffice to protect that right. I therefore need not reach the issue of First Amendment access.
I return to the exclusion order entered by Judge DePasquale. It is clear that the judge entered the order because of his apparent concern for the fair trial rights of the defendants and his suspicion that those rights would be threatened if the hearing were public. I acknowledge that concern, but I conclude that the order was not justified on the facts of this case.
There was no factual basis upon which the court could conclude that a substantial probability existed that an open proceeding would result in harm to the defendants' rights to a fair trial. The coverage in petitioner's newspapers of Clapp's disappearance and the subsequent arrest and prosecution of Greathouse and Jones was circumspect. Stories appeared on only 7 of the 18 days between July 20 and August 6. All coverage ceased on August 6, and did not resume until after the suppression hearing three months later. The stories that appeared were largely factual in nature. The reporting was restrained and free from editorializing or sensationalism. There was no screaming headline, no lurid photograph, no front-page overemphasis. The stories were of moderate length and were linked to factual developments in the case. And [p448] petitioner's newspapers had only a small circulation in Seneca County. See n. 1, ante, of the Court's opinion.
In addition, counsel for respondents stated that the only fact not known to petitioner prior to the suppression hearing was the content of the confessions. Tr. of Oral Arg. 40. Prior to the hearing, petitioner had learned of the confessions and of the existence and nature of the physical evidence sought to be suppressed. It is thus not at all likely that the openness of the suppression hearing would have resulted in the divulgence of additional information that would have made it more probable that Greathouse and Jones would be denied a fair trial.
On this record, I cannot conclude, as a matter of law, that there was a sufficient showing to establish the strict and inescapable necessity that supports an exclusion order. The circumstances also would not have justified a holding by the trial court that there was substantial probability that alternatives to closure would not have sufficed to protect the rights of the accused.
It has been said that publicity "is the soul of justice." J. Bentham, A Treatise on Judicial Evidence 67 (1825). And in many ways, it is: open judicial processes, especially in the criminal field, protect against judicial, prosecutorial, and police abuse; provide a means for citizens to obtain information about the criminal justice system and the performance of public officials; and safeguard the integrity of the courts. Publicity is essential to the preservation of public confidence in the rule of law and in the operation of courts. Only in rare circumstances does this principle clash with the rights of the criminal defendant to a fair trial, so as to justify exclusion. The Sixth and Fourteenth Amendments require that the States take care to determine that those circumstances exist before excluding the public from a hearing to which it otherwise is entitled to come freely. Those circumstances did not exist in this case.
1. Two of the six judges who heard the case in the New York Court of Appeals dissented. They would have found the order entered by the County Court to be of the type of prior restraint prohibited by Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), and would have affirmed the Appellate Division on the ground that the evidence did not support entry of the order. 43 N.Y.2d 370, 382, 372 N.E.2d 544, 551.
2. Although I am dealing here with access under the Sixth Amendment, it is worthy of note that this Court's decisions emphasizing the protection afforded reporting of judicial proceedings under the First Amendment also point up the grave concern that information relating to the administration of criminal justice be widely available. In Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), for example, the Court noted that "the operation of the judicial system itself . . . is a matter of public interest," id. at 839, and that reporting judicial disciplinary proceedings "lies near the core of the First Amendment." Id. at 838. And in Nebraska Press Assn. v. Stuart, 427 U.S. at 559, the Court recognized that "[t]ruthful reports of public judicial proceedings have been afforded special protection against subsequent punishment" because of the importance of free commentary about the conduct of the criminal justice system. Any question of access under the Sixth Amendment aside, the "extraordinary protections afforded by the First Amendment" with respect to the reporting of judicial proceedings, id. at 560, indicate the importance attached to making the public aware of the business of the courts.
The administration of the law is not the problem of the judge or prosecuting attorney alone, but necessitates the active cooperation of an enlightened public.
3. Forty-eight of the fifty States protect the right to a public trial in one way or another. Forty-five have constitutional provisions specifically guaranteeing the right: Ala.Const., Art. 1, § 6; Alaska Const., Art. I, § 11; Ariz.Const., Art. 2, §§ 11, 24; Ark.Const., Art. 2, § 10; Cal.Const., Art. 1, § 15; Colo.Const., Art. 2, § 16; Conn.Const., Art. 1, § 8; Del.Const., Art. 1, §§ 7, 9; Fla.Const., Art. 1, § 16; Ga.Const., Art. 1, § 1, 11; Haw.Const., Art. 1, § 11; Idaho Const., Art. 1, § 13; Ill.Const., Art. 1, § 8; Ind.Const., Art. 1, §§ 12, 13; Iowa Const., Art. 1, § 10; Kan.Const., Bill of Rights, § 10; Ky.Const., Bill of Rights, §§ 11, 14; La.Const., Art. 1, §§ 16, 22; Me.Const., Art. 1, § 6; Mich.Const., Art. 1, § 20; Minn.Const., Art. 1, § 6; Miss.Const., Art. 3, §§ 24, 26; Mo.Const., Art. 1, § 18(a); Mont.Const., Art. 2, § 24; Neb.Const., Art. 1, § 11; N.J.Const., Art. 1, ¶ 10; N.M.Const., Art. 2, § 14; N.C.Const., Art. 1, §§ 18, 24; N.D.Const., Art. 1, §§ 13, 22; Ohio Const., Art. 1, §§ 10, 16; Okla.Const., Art. 2, § 20; Ore.Const., Art. 1, § 11; Pa.Const., Art. 1, §§ 9, 11; R.I.Const., Art. 1, § 10; S.C.Const., Art. 1, §§ 9, 14; S.D.Const., Art. 6, §§ 7, 20; Tenn.Const., Art. 1, §§ 9, 17; Tex.Const., Art. 1, § 10; Utah Const., Art. 1, §§ 11, 12; Vt.Const., Ch. 1, Art. 10th; Va.Const., Art. 1, § 8; Wash.Const., Art. 1, § 22; W.Va.Const., Art. 3, §§ 14, 17; Wis.Const., Art. 1, § 7; Wyo.Const., Art. 1, § 8.
In addition, New Hampshire has held that the Due Process Clause of its Constitution, Pt. 1, Art. 15, requires that criminal trials be held in public. Martineau v. Helgemoe, 117 N.H. 841, 842, 379 A.2d 1040, 1041 (1977). Maryland, by judicial decision, requires open proceedings. Dutton v. State, 123 Md. 373, 386-387, 91 A. 417, 422-423 (1914). New York, by statute, provides for open trials. N.Y.Civil Rights Law, Art. 2, § 12 (McKinney 1976).
Only Massachusetts and Nevada appear to have no state provision for public trials. But see Commonwealth v. Marshall, 356 Mass. 432, 253 N.E.2d 333 (1969).
4. "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury."
These words are of great importance, for all Causes ought to be heard, ordered, and determined before the Judges of the Kings Courts openly in the Kings Courts, whither all persons may resort; and in no chambers, or other private places: for the Judges are not Judges of chambers, but of Courts, and therefore in open Court, where the parties Councel and Attorneys attend, ought orders, rules, awards, and Judgments to be made and given, and not in chambers or other private places. . . . Nay, that Judge that ordereth or ruleth a Cause in his chamber, though his order or rule be just, yet offendeth he the Law, (as here it appeareth) because he doth it not in Court.
6. See, e.g., T. Smith, De Republica Anglorum 79, 101 (Alston ed.1972), published in 1583, where the author, in contrasting the English common law with the civil law system of the Continent, stressed that, in England, all adjudications were open to the public as a matter of course. See also Trial of John Lilburne (1649), reported in 4 How.St.Tr. 1270, 1274 (1816).
7. Similarly, the Solicitor General, Sir John Hawles, in 1685 in his Remarks upon Mr. Cornish's Trial, 11 How. St. Tr. 455, 460, stated:
The reason that all matters of law are, or ought to be transacted publicly, is that any person, unconcerned as well as concerned, may, as amicus curiae, inform the court better, if he thinks they are in an error, that justice may be done: and the reason that all trials are public is that any person may inform in point of fact, though not subpoena'd, that truth may be discovered in civil as well as criminal matters.
8. The continuing development in England of the common law notion of publicity during the years since the founding of our own Nation casts light upon the function of publicity in our system of justice. For example, in a series of cases establishing a privilege for the reporting of judicial proceedings, the courts recognized:
Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of Justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.
King v. Wright, 8 D. & E. 293, 298, 101 Eng.Rep. 1396, 1399 (K.B. 1799). See Davison v. Duncan, 7 El. & Bl. 229, 230-231, 119 Eng.Rep. 1233, 1234 (Q.B. 1857); Wason v. Walter, 4 L.R. 73, 88 (Q.B. 1868).
Important for my purposes is the decision in Daubney v. Cooper, 10 B. & C. 237, 109 Eng.Rep. 438 (K.B. 1829). There the court upheld a verdict for damages in an action by a spectator, who had been ejected from a criminal proceeding, against the magistrate who had ejected him. The court stated:
[I]t is one of the essential qualities of a court of justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, -- provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, -- have a right to be present for the purpose of hearing what is going on.
Id. at 240, 109 Eng.Rep. at 440. See also Scott v. Scott,  A.C. 417, 438-439 (Haldane, L.C.), 440-441 (Earl of Halsbury).
9. Although a number of States followed the language of Virginia's Declaration, only Vermont copied the Pennsylvania emendation by adding the word "public" to the speedy trial provision. Vt.Const., Declaration of Rights § X (1777), quoted in 1 Schwartz 323. Once again, however, there is no evidence that, by so doing, Vermont intended to depart from the common law practice of holding court in public. Indeed, the Vermont Declaration, adopted by the revolutionary legislature in haste, was "virtually [a] verbatim repetitio[n] of the relevant Pennsylvania" article. 1 Schwartz 319. It is thus doubtful that, by adding the word "public," Vermont, any more than Pennsylvania, intended to alter existing practice.
10. Nearly every State that has considered the issue has recognized that the public has a strong interest in maintaining open trials. Most of these cases have involved state constitutional provisions modeled on the Sixth Amendment in that the public trial right is phrased in terms of a guarantee to the accused. See, e.g., Jackson v. Mobley, 157 Ala. 408, 411-412, 47 So. 590, 592 (1908); Commercial Printing Co. v. Lee, 262 Ark. 87, 93-96, 553 S.W.2d 270, 273-274 (1977); Lincoln v. Denver Post, 31 Colo.App. 283, 285-286, 501 P.2d 152, 154 (1972); State ex rel. Gore Newspapers Co. v. Tyson, 313 So.2d 777, 785-788 (Fla.App. 1975); Gannett Pacific Corp. v. Richardson, 59 Haw. 224, 230-231, 580 P.2d 49, 55 (1978); State v. Beaudoin, 386 A.2d 731, 733 (Me.1978); Cox v. State, 3 Md.App. 136, 139-140, 238 A.2d 157, 158-159 (1968); State v. Schmit, 273 Minn. 78, 86-88, 139 N.W.2d 800, 806-807 (1966); State v. Keeler, 52 Mont. 205, 218-219, 156 P. 1080, 1083-1084 (1916); Keene Publishing Corp. v. Keene District Court, 117 N.H. 959, 962-963, 380 A.2d 261, 263-264 (1977); State v. Allen, 73 N.J. 132, 157-160, 373 A.2d 377, 389-390 (1977); Neal v. State, 86 Okla.Cr. 283, 289, 192 P.2d 294, 297 (1948); State v. Holm, 67 Wyo. 360, 382-385, 224 P.2d 500, 508 509 (1950).
Several States have recognized such an interest under constitutional provisions establishing open courts. E.g., State v. White, 97 Ariz.196, 198, 398 P.2d 903, 904 (1965); Smith v. State, 317 A.2d 20, 23-24 (Del.1974); Johnson v. Simpson, 433 S.W.2d 644, 646 (Ky.1968); Brown v. State, 222 Miss. 863, 869, 77 So.2d 694, 696 (1955); In re Edens, 290 N.C. 299, 306, 226 S.E.2d 5, 9-10 (1976); E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 16169, 125 N.E.2d 896, 899-904 (1955); State ex rel. Varney v. Ellis, 149 W.Va. 522, 523-524, 142 S.E.2d 63, 65 (1965).
Massachusetts appears to have no case precisely in point. But in Cowley v. Pulsifer, 137 Mass. 392 (1884), the Supreme Judicial Court, in an opinion by Mr. Justice Holmes, stated that the chief advantage of permitting a privilege for publication of reports of judicial proceedings "is the security which publicity gives for the proper administration of justice." Id. at 394. The court continued:
[This] privilege and the access of the public to the courts stand in reason upon common ground. . . . It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
11. See, e.g., United States v. Clark, 475 F.2d 240, 246-247 (CA2 1973); Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532, 540-542 (CA2 1974); United States v. Cianfrani, 573 F.2d 835, 852-854 (CA3 1978); Lewis v. Peyton, 352 F.2d 791, 792 (CA4 1965).
The Court today cites no case where the public has been totally excluded from all of a trial or all of a pretrial suppression hearing. See ante at 388 n.19. Indeed, in almost every case that the Court cites, no such general exclusion was permitted: In Geise v. United States, 262 F.2d 151, 155 (CA9 1958), for example, the press, members of the bar, and relatives and friends of parties and the witnesses were allowed to remain. Similarly, in United States ex rel. Orlando v. Fay, 350 F.2d 967, 970 (CA2 1965), the press and members of the bar were admitted at all times. In State v. Croak, 167 La. 92, 94-95, 118 So. 703, 704 (1928), a fair-sized audience composed of members of the public was always present. The court in Beauchamp v. Cahill, 297 Ky. 505, 508, 180 S.W.2d 423, 424 (1944), though it recognized that the trial court could exclude limited classes of spectators in certain circumstances, held that that court could not exclude a "reasonable portion of the public" who wanted to attend, and it disapproved the limited exclusion that did occur. In State v. Callahan, 100 Minn. 63, 110 N.W. 342 (1907), and Hogan v. State, 191 Ark. 437, 86 S.W.2d 931 (1935), the Court does point to cases where a court upheld an exclusion of all the public, though even there the exclusions were for strictly limited periods of time. Those exclusions were over the objections of the defendants, and they surely are questionable law today, not only under the Sixth Amendment but under state law as well. See State v. Schmit, 273 Minn. at 86-88, 139 N.W.2d at 805-807; Commercial Printing Co. v. Lee, 262 Ark. at 93-96, 553 S.W.2d at 273-274.
Similarly, though the Court cites a number of state statutory provisions that it says contain limitations on public trials, it cites no cases decided under those provisions excluding all the public and the press from trials or suppression hearings. If any such cases exist, which is doubtful, they are few indeed. It appears, rather, that such statutes have been interpreted to permit limited exclusion of certain groups of spectators from trial, but seldom applied so as to result in blanket exclusion of the public and press. For example, in Reeves v. State, 264 Ala. 476, 483, 88 So.2d 561, 567 (1956), the court, in applying the Alabama provision cited by the Court, ante at 388 n.19, noted that the trial court had not excluded, among others, "members of the press, radio, television or other newsgathering services, . . . [and] members of the bar." Accord, Ex parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486, 487 (1964). Similarly, in applying the Georgia statute cited by the Court, the courts of that State have not excluded, among others, members of the press and of the bar. E.g., Moore v. State, 151 Ga. 648, 651-652, 658-659, 108 S.E. 47, 49, 52 (1921). Indeed, in Moore, the trial court allowed the press to attend as one of the "parties at interest" not excludable. Id. at 651, 108 S.E. at 49. And in upholding the constitutionality of the Massachusetts statute permitting exclusion in certain cases involving sex crimes, the Supreme Judicial Court noted that the press had not been excluded under the statute, and that it therefore need not reach the constitutionality of the statute in circumstances where the press was excluded, "even if the statute could be interpreted as permitting such exclusion" of the press. Commonwealth v. Blondin, 324 Mass. 564, 572, 87 N.E.2d 455, 460 (1949). There is no evidence that, under any of the other provisions cited by the Court, tribunals have excluded all members of the public, including the press, from a trial or suppression proceeding.
The Court in In re Oliver recognized that, even though some cases up to that time had allowed limited departures from publicity, no court had gone so far as to sanction exclusion of the press. 333 U.S. at 272 n. 29. Since that time, only the New York courts in this case, and perhaps some isolated others, have departed from this tradition in criminal cases. And although some commentators have criticized the Sixth Amendment approach to establishing a public right of access, they have gone on to find that right rooted in some other provision of the Constitution. E.g., Note, The Right to Attend Criminal Hearings, 78 Colum.L.Rev. 1308, 1326-1331 (1978) (public access right derived from combination of the First and Sixth Amendments). Even Radin, whose ideas in this area Professor Wigmore described as "far-fetched," 6 Wigmore § 1834, though he criticized public access, would not have excluded the press and selected members of the public from any trial. Radin, The Right to a Public Trial, 6 Temple L.Q. 381, 394-395 (1932).
12. See cases cited in n. 10, supra. For example, in Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977), the Supreme Court of Arkansas held that the exclusion of the public from the voir dire phase of a criminal trial violated the State's public trial constitutional provision, even though it, like the Sixth Amendment, literally read in favor of only the accused. The court found that members of the public have a strong interest in observing criminal proceedings, inasmuch as they involve crimes against society. And it added that, since courthouses, prosecutors, judges, and often defense attorneys are paid for with public funds, the public
has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice, and it would require unusual circumstances for this right to be held subordinate to the contention of a defendant that he is prejudiced by a public trial (or any part thereof).
Id. at 95, 553 S.W.2d at 274.
13. The American Bar Association Standards adopt the view that the public has a strong interest in maintaining the openness of criminal trials, and that the Sixth Amendment protects that interest:
The sixth amendment speaks in terms of the right of the accused to a public trial, but this right does not belong solely to the accused to assert or forgo as he or she desires. . . . The defendant's interest, primarily, is to ensure fair treatment in his or her particular case. While the public's more generalized interest in open trials includes a concern for justice to individual defendants, it goes beyond that. The transcendent reason for public trials is to ensure efficiency, competence, and integrity in the overall operation of the judicial system. Thus, the defendant's willingness to waive the right to a public trial in a criminal case cannot be the deciding factor. . . . It is just as important to the public to guard against undue favoritism or leniency as to guard against undue harshness or discrimination.
ABA Project on Standards for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, p. 15 (App. Draft 1978). (Footnotes omitted.)
14. In 1976, in the Supreme Court for the city of New York, 89.7% of all criminal cases were terminated by dismissal (25.6%) or by plea of guilty (64.1%). N.Y.Leg.Doc. No. 90, Judicial Conference of the State of New York, 22d Annual Report 52 (1977). In the Supreme Courts and County Courts outside New York City, 93.4% of the criminal cases were disposed of by dismissal (18.9%) or by plea of guilty (74.5%). Id. at 56.
As noted, these statistics are characteristic of the criminal justice system across the country. See generally National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, Plea Bargaining in the United States, App. A (1978).
15. The ABA Standards take the position that pretrial suppression hearings are within the scope of the Sixth Amendment's public trial provision. ABA Project on Standards for Criminal Justice, Fair Trial and Free Press, Standard 8-3.2, p. 15, and n. 1 (App.Draft 1978).
16. This observation is confined to cases where the defendant seeks to close the hearing on the ground that his fair trial rights will be infringed by an open proceeding. I express no opinion as to whether or when a proceeding subject to the command of the Sixth Amendment may be closed over the objection of the defendant. Nor need I determine what interests other than those of the defendant in a fair trial may support all order of closure. My comments are also confined to rulings within the ambit of the Sixth Amendment's public trial provision. I thus express no opinion about proceedings, such as those in juvenile court, not otherwise subject to the requirement of the Sixth Amendment. See McKeiver v. Pennsylvania, 403 U.S. 528, 540-541 (1971) (plurality opinion.)
17. The Court suggests that the public's interest will be served adequately by permitting delayed access to the transcript of the closed proceeding once the danger to the accused's fair trial right has dissipated. A transcript, however, does not always adequately substitute for presence at the proceeding itself. Also, the inherent delay may defeat the purpose of the public trial requirement. Later events may crowd news of yesterday's proceeding out of the public view.
As a practical matter . . . the element of time is not unimportant if press coverage is to fulfill its traditional function of bringing news to the public promptly.314 U.S. 252, 268 (1941). Moreover, an important event, such as a judicial election or the select.ion of a prosecuting attorney, may occur when the public is ignorant of the details of judicial and prosecutorial conduct. Finally, although a record is kept for later release, when the proceeding itself is kept secret, it is impossible to know what it would have been like had the pressure of publicity been brought to bear on the parties during the proceeding itself.