464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)
On December 23, 1981, the State of California filed a complaint in the Riverside County Municipal Court charging Robert Diaz with 12 counts of murder and seeking the death penalty.1 The complaint alleged that Diaz, a nurse, murdered 12 patients by administering massive doses of the heart drug lidocaine.2
The preliminary hearing on the complaint commenced on July 6, 1982.3 Diaz moved to exclude the public from the proceedings under Cal. Penal Code Ann. § 868 (West 1985).4 The Magistrate granted the unopposed motion, finding that closure was necessary because the case had attracted national publicity and "only one side may get reported in the media."5
The preliminary hearing continued for 41 days.6 Most of the testimony and the evidence presented by the State was medical and scientific; the remainder consisted of testimony by personnel who worked with Diaz on the shifts when the 12 patients died.7 Diaz did not introduce any evidence, but his counsel subjected most of the witnesses to vigorous cross-examination.8 Diaz was held to answer on all charges.9 At the conclusion of the hearing, petitioner Press-Enterprise Company asked that the transcript of the proceedings be released.10 The Magistrate refused and sealed the record.11
On January 21, 1983, the State moved in Superior Court to have the transcript of the preliminary hearing released to the public; petitioner later joined in support of the motion.12 Diaz opposed the motion, contending that release of the transcript would result in prejudicial pretrial publicity.13 The Superior Court found that the information in the transcript was "as factual as it could be," and that the facts were neither "inflammatory" nor "exciting."14 It concluded that there was nonetheless "a reasonable likelihood that release of all or any part of the transcripts might prejudice defendant's right to a fair and impartial trial."15 Petitioner then filed a peremptory writ of mandate with the Court of Appeal.16
That court originally denied the writ but, after being so ordered by the California Supreme Court, set the matter for a hearing.17 Meanwhile, Diaz waived his right to a jury trial and the Superior Court released the transcript.18 After holding that the controversy was not moot, the Court of Appeal denied the writ of mandate.19 The California Supreme Court thereafter denied petitioner's peremptory writ of mandate.20 The United States Supreme Court granted certiorari.21
Whether the controversy is moot under Article III despite the eventual release of the transcript?22
No. The controversy remained live for judicial resolution even after the transcript's release.26 The Supreme Court granted certiorari to decide whether petitioner has a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution.27 Although the transcript ultimately was released after Diaz waived his right to a jury trial, the controversy is capable of repetition yet evading review.28 It can reasonably be assumed that petitioner could be subjected to a similar closure order in the future and, because criminal proceedings are typically of short duration, such orders will likely evade review.29
The case is not moot and the Court properly turned to the merits of the First Amendment claim.30
Whether petitioner has a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution?31
In cases dealing with claims of a First Amendment right of access to criminal proceedings, courts must consider two complementary factors: whether the place and process have historically been open to the press and general public, and whether public access plays a significant positive role in the functioning of the particular process.32 Where these considerations support access, a qualified First Amendment right attaches. This right may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.33
Yes. The qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as conducted in California.34 There has been a tradition of accessibility to preliminary hearings of the type conducted in California.35 Although grand jury proceedings have traditionally been secret, preliminary hearings before neutral and detached magistrates have been open to the public from early times.36 The near-uniform practice of state and federal courts has been to conduct such hearings in open court.37
Public access to California preliminary hearings plays a significant role in the functioning of the criminal justice system.38 California's preliminary hearing is often the final and most important step in the criminal proceeding.39 The prosecutor may secure an indictment or a finding of probable cause following a preliminary hearing.40 The preliminary hearing affords the accused rights to appear, be represented, cross-examine witnesses, present exculpatory evidence, and challenge illegally obtained evidence.41 In many cases the preliminary hearing provides the sole occasion for public observation of the criminal justice system.42 The absence of a jury makes public observation even more important as a safeguard of fairness.43
Denying the transcript of a 41-day preliminary hearing would frustrate the community therapeutic value of openness.44
A qualified First Amendment right of access attaches to California preliminary hearings, so the proceedings cannot be closed unless the trial court makes specific, on-the-record findings demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.45
Related opinions on this issue
Justice Stevens dissented on the ground that the First Amendment does not confer a right of access to the transcript in these circumstances.46 He emphasized that the asserted right was not the core right to publish lawfully acquired information but rather a right to acquire access to information the government has a legitimate interest in withholding.47 Given the facts that the transcript consisted of 4,239 pages of one-sided prosecution testimony over eight weeks, that the defense presented no witnesses, and that both the prosecutor and trial judge agreed sealing was necessary to protect the defendant's fair-trial rights, Stevens concluded the risk of prejudice plainly outweighed any countervailing interest in earlier publication.48
He further noted that at the time of the First Amendment's adoption there was no common-law right of access to preliminary proceedings.49 The historical evidence did not establish that the Framers intended such proceedings to be presumptively public.50 Stevens also warned that the majority's logic would undermine the long-established policy of grand-jury secrecy.51 He would have affirmed under the lesser showing of reasonable probability of prejudice permitted by prior precedent.52
Whether the California Supreme Court's reasonable likelihood of substantial prejudice test satisfies the First Amendment requirements for closure of a preliminary hearing transcript?53
Even when a qualified First Amendment right of access attaches, closure is permissible only upon specific findings that there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent.54 Reasonable alternatives to closure cannot adequately protect the defendant's fair-trial rights.55
No. The California Supreme Court's reasonable likelihood of substantial prejudice test places a lesser burden on the defendant than the substantial probability standard required by the First Amendment.56 Moreover, that court failed to consider whether alternatives short of complete closure would have protected the accused's interests.57 The standard applied by the California Supreme Court therefore did not satisfy the First Amendment right of access.58 Because the California standard is inadequate to protect the qualified First Amendment right of access, the judgment of the California Supreme Court must be reversed.59
The record in that court did not apply the substantial probability standard nor did it demonstrate that reasonable alternatives to full closure were considered and found inadequate.60
The California Supreme Court's judgment is reversed because its closure standard failed to meet First Amendment requirements.61