Monday, September 5, 2011

A Fair Trial and a Free Press


I recently had the opportunity to pen a column outlining the accused’s right to have a public trial.  While this is a bedrock principle of American criminal procedure, what about the right of the press to be present and report on the happenings of a trial?

In Richmond Newspapers Inc. v.Virginia, the United States Supreme Court in 1980 said that the press and the public have a federal constitutional right to be able to attend criminal trials unless the trial judge makes a finding which supports closure.  There is a presumption in favor of open trials even in cases where the defense and the prosecution agree that a non-public trial may be conducted.  Should either party, or the court itself, feel that there is a good reason to close any part of the trial to the public, the trial court has an independent duty to consider “all reasonable alternatives” that could ensure a fair and open trial even if neither party suggests an alternative to closure.

In 1982, the Supreme Court went on to give some of its reasons why the press should be able to report on criminal trials.  In reversing a mandatory closure order in Massachusetts, the Court held that such orders violate the First Amendment and pointed out that (1) criminal trials have historically been open to the press and general public, and that (2) public scrutiny of a criminal trial enhances the quality and safeguards of a fact-finding process, gives the appearance of fairness, and heightens public respect for the judicial process.

Even though the prosecution or defense may want for a portion or all of a trial to be closed from press coverage, the moving party carries a rather large burden to get this done.  The party seeking to close a hearing must (1) advance an overriding interest that it is likely to be prejudiced; (2) the court must ensure that the closure be no broader than necessary to protect that interest; (3) the court must always consider reasonable alternatives to closure; and (4) the court must make adequate findings on the record to support its decision.  

As with every rule of law, there are reasonable exceptions which need to be applied under some circumstances.  O.C.G.A 17-8-53 and 17-8-54 authorize the closure of the courtroom to the public where the subject matter of the proceeding involves evidence which relates to the “improper acts of the sexes and tends to debauch the morals of the young” or in a case where a child under the age of 16 who is testifying in a criminal case involving a sexual offense.  However, the trial court must still conduct an inquiry and exercise careful discretion when limiting press coverage even in these circumstances.

In reality, very few criminal trials are closed to press coverage.  All you have to do is turn on the television, plug into the internet, or pick up the local newspaper to see vast coverage of trials across the country.  Even though I have some cases where the allegations are such that I would prefer to have the least amount of coverage possible, I firmly believe that open press coverage in criminal trials is a good thing and 100% American.  By allowing the press to report on trials, the federal and state courts have clearly and almost unanimously sided with the Constitution, particularly with the First Amendment.  This cannot be said of most issues coming before the courts.
The other aspect of free press coverage of trials that I am proud of is that this freedom differentiates America from many other countries and cultures.  At a time when powerful forces both domestic and international seek to undermine and mock the idea of American prominence in the world, shining the light on our God-given constitutional law is all the more important.

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