Mass Media Law 18 th Edition Don Pember Clay Calvert Chapter 12 Free Press–Fair Trial: Closed Judicial Proceedings McGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.

12-2 Closed Proceedings and Sealed Documents Open Courts and the Constitution – Press-Enterprise v. Riverside Superior Court (1980) The U.S. Supreme Court ruled there was a right under both common law and the U.S. Constitution for the public and the press to attend a criminal trial

12-3 Closed Proceedings and Sealed Documents Open Courts and the Constitution – The Press-Enterprise Test 1.The party seeking closure must advance an overriding interest that is likely to be harmed if the proceeding or document is open 2.Whoever seeks the closure must demonstrate that there is a “substantial probability” that this interest will be harmed if the proceeding or document remains open

12-4 Closed Proceedings and Sealed Documents Open Courts and the Constitution –The Press-Enterprise Test 3. The trial court must consider reasonable alternatives to closure 4.If the judge decides that closure is the only reasonable solution, the closure must be narrowly tailored so there is an absolute minimum of interference with the rights of the press and public to attend the hearing or see the document 5.The trial court must make adequate findings to support the closure decision

12-5 Closed Proceedings and Sealed Documents Open and Closed Trials –Juvenile Hearings Traditionally, judicial hearings involving journalists have been closed to the press and the public

12-6 Closed Proceedings and Sealed Documents Open and Closed Trials –Today, most states classify juvenile hearings into two groups: 1.Those in which the juvenile is charged with a criminal offense. These hearings are presumptively open. 2.Those in which the juvenile is the subject of a hearing relating to parental neglect, abuse or a similar concern. These hearings are open in some states and closed in others.

12-7 Closed Proceedings and Sealed Documents Open and Closed Trials –Victim and Witness Protection The U.S. Supreme Court has ruled it is permissible for a state to attempt to protect the victim of a sexual assault by permitting the closing of a trail during the victim’s testimony

12-8 Closed Proceedings and Sealed Documents Open and Closed Trials –Victim and Witness Protection Appellate courts usually permit the closure of those portions of a trial during which an undercover police officer testifies

12-9 Closed Proceedings and Sealed Documents Open and Closed Trials –Military tribunals Press and public access to military courts is generally open under military law In 2006, the Supreme Court ruled that special military commissions to try persons suspected of terror activities were unconstitutional

12-10 Closure of Other Hearings Presumptively Open Judicial Proceedings: –Pretrial detention hearings –Bail hearings –Voir dire proceedings –Sentencing hearings –Attorney disciplinary hearings These proceedings may be closed only by a strong showing of the substantial probability of harm or other compelling interest

12-11 Closure of Other Hearings Closed judicial proceedings: –Summary jury trial - a hearing to get the parties in the case to settle their dispute before going to a full-blown jury trial –Grand jury proceedings - are secret and always have been

12-12 Closure of Other Hearings –Deportation hearings The law here remains unsettled There have been decisions both for and against openness in deportation hearings

12-13 Accessible and Inaccessible Documents Presumptively open documents: –Evidence introduced in open court –Documents filed in pretrial proceedings –Presentencing and postsentencing reports

12-14 Accessible and Inaccessible Documents Presumptively open documents: –Plea agreements –Information, indictments, search warrants and supporting affidavits, evidence and other materials related to sentencing

12-15 Accessible and Inaccessible Documents Documents that may be closed to inspection include: –Juror records –Out-of-court settlements –Protective court orders –National security

12-16 Accessible and Inaccessible Documents Tips for Reporters When Judicial Hearing Is Closed –Call the editor immediately to get a lawyer on the job –Make a formal objection to the closure –Ask the judge to delay the closure until the lawyer arrives

12-17 Access and the Broadcast Journalist Access to the judicial process for the broadcast journalist involves two issues that normally don’t concern reporters in print media: –Is it possible to obtain copies of evidence contained on audio- or videotape, and then air these tapes? –Is it possible to broadcast or telecast the entire judicial proceeding?

12-18 Access and the Broadcast Journalist Access to Evidence –Courts consider a variety of factors when determining whether to permit the broadcast or telecast of audio- or videotaped evidence: 1.Was the material introduced into evidence in open court, or have written transcripts of the material been provided? 2.Could broadcast of the material prejudice the fair trial rights of the defendant?

12-19 Access and the Broadcast Journalist Access to Evidence –Courts consider a variety of factors when determining whether to permit the broadcast or telecast of audio- or videotaped evidence: 3. What people are on the audio- or videotape? 4. Will airing the tape serve a public purpose?

12-20 Recording and Televising J u d i c i a l P r o c e e d i n g s In nearly all states, cameras and/or recording devices are permitted in both trial and appellate courts In some states, the right to use this equipment in a courtroom is presumed; in other states, permission must be granted In some instances, parties involved in the legal proceeding must agree before they can be photographed Jurors cannot be photographed in some states Recording and Televising Judicial Proceedings

12-21 –The U.S. Supreme Court ruled in Chandler v. Florida (1981) that the mere presence of cameras in the courtroom does not prejudice a defendant’s right to a fair trial Recording and Televising Judicial Proceedings

12-22 Recording and Televising Judicial Proceedings Federal courts refuse to permit cameras in the courtroom Cameras are also barred from executions and jury deliberations in most states

12-23 Bench-Bar-Press Guidelines Tell law enforcement officers what kind of information about a criminal suspect and a crime can be released and published with little danger of harm to the trial process, and Inform journalists that publication of certain kinds of information about a case can be harmful to the trial process