superior argued february decided june california filed complaint nurse charging murdering patients administering massive doses heart drug lidocaine magistrate granted defendant motion exclude public preliminary hearing complaint california statute requires proceedings open unless exclusion public necessary order protect defendant right fair impartial trial conclusion preliminary hearing magistrate refused petitioner request transcript proceedings released thereafter state supported petitioner opposed defendant moved unsuccessfully california superior transcript released petitioner filed peremptory writ mandate california appeal meanwhile defendant waived right jury trial superior released transcript holding controversy moot appeal denied writ california also denied writ holding general first amendment right access preliminary hearings california statute defendant establishes reasonable likelihood substantial prejudice burden shifts prosecution media show preponderance evidence reasonable probability prejudice held even though superior ultimately released transcript question case moot controversy capable repetition yet evading review globe newspaper superior gannett depasquale thus jurisdiction qualified first amendment right access criminal proceedings applies preliminary hearings conducted california first tradition public accessibility preliminary hearings type conducted california opposed grand jury proceedings preliminary hearings conducted neutral detached magistrates open public second public access preliminary hearings essential proper functioning criminal justice system proper functioning made less essential fact preliminary hearing result conviction adjudication magistrate without jury absence jury makes importance public access even significant pp since qualified first amendment right access attaches preliminary hearings conducted california proceedings closed unless specific record findings made demonstrating closure essential preserve higher values narrowly tailored serve interest superior interest asserted defendant right fair trial preliminary hearing shall closed unless substantial probability right prejudiced publicity closure prevent reasonable alternatives closure adequately protect right reasonable likelihood test applied california placed lesser burden defendant substantial probability test required first amendment moreover failed consider whether alternatives short closure protected defendant interests pp burger delivered opinion brennan white marshall blackmun powell joined stevens filed dissenting opinion part ii rehnquist joined post james ward argued cause petitioner briefs sharon waters joyce ellen manulis reikes argued cause respondent brief gerald geerlings glenn robert salter ephriam margolin filed brief diaz real party interest briefs amici curiae urging reversal filed state california john van de kamp attorney general andrea sheridan ordin steve white chief assistant attorneys general marian johnston deputy attorney general american civil liberties union et al robert warren rex heinke charles sims american newspaper publishers association et al bruce sanford lee levine terry maguire richard schmidt george vradenburg iii lawrence gunnels mark tuft robert sack alice neff lucan susan garsh harvey lipton norton armour robert brinkmann lois schiffer samuel klein nancy hendry jane kirtley alexander wellford cameron de vore carol melamed copley press et al harold fuson judith epstein edward mcintyre william niese donald zachary mark tuft lawrence gunnels robert landes kenneth vittor jonathan kotler grover trask ii pro se filed brief district attorney county riverside amicus curiae chief justice burger delivered opinion granted certiorari decide whether petitioner first amendment right access transcript preliminary hearing growing criminal prosecution december state california filed complaint riverside county municipal charging robert diaz counts murder seeking death penalty complaint alleged diaz nurse murdered patients administering massive doses heart drug lidocaine preliminary hearing complaint commenced july diaz moved exclude public proceedings cal penal code ann west requires proceedings open unless exclusion public necessary order protect defendant right fair impartial trial magistrate granted unopposed motion finding closure necessary case attracted national publicity one side may get reported media app preliminary hearing continued days testimony evidence presented state medical scientific remainder consisted testimony personnel worked diaz shifts patients died diaz introduce evidence counsel subjected witnesses vigorous diaz held answer charges conclusion hearing petitioner company asked transcript proceedings released magistrate refused sealed record january state moved superior transcript preliminary hearing released public petitioner later joined support motion diaz opposed motion contending release transcript result prejudicial pretrial publicity superior found information transcript factual facts neither inflammatory exciting nonetheless reasonable likelihood release part transcripts might prejudice defendant right fair impartial trial petitioner filed peremptory writ mandate appeal originally denied writ ordered california set matter hearing meanwhile diaz waived right jury trial superior released transcript holding controversy moot appeal denied writ mandate california thereafter denied petitioner peremptory writ mandate holding general first amendment right access preliminary hearings cal reasoned right access criminal proceedings recognized superior globe newspaper superior extended actual criminal trials cal furthermore reasons asserted closing proceedings globe interests witnesses third parties right asserted case defendant right fair impartial trial jury uninfluenced news accounts found general first amendment right access considered circumstances closure proper california access statute cal penal code ann west statute reasoned defendant establishes reasonable likelihood substantial prejudice burden shifts prosecution media show preponderance evidence reasonable probability prejudice cal granted certiorari reverse ii must first consider whether jurisdiction article iii constitution petitioner challenges superior original refusal release transcript preliminary hearing noted specific relief petitioner seeks already granted transcript preliminary hearing released diaz waived right jury trial however globe newspaper supra gannett depasquale controversy capable repetition yet evading review reasonably assumed petitioner subjected similar closure order criminal proceedings typically short duration order likely evade review globe gannett therefore require conclusion case moot accordingly turn merits iii important identify precisely california decided conclude magistrate shall close preliminary hearing upon finding reasonable likelihood substantial prejudice impinge upon right fair trial penal code section makes clear primary right right fair trial public right access must give way conflict cal right open public trial shared right accused public common concern assurance fairness recently waller georgia example considered whether defendant sixth amendment right open trial prevented closure suppression hearing defendant objection noted first amendment right access instances attach proceedings explicit sixth amendment right accused less protective public trial implicit first amendment right press public defendant objects closure suppression hearing therefore hearing must open unless party seeking close hearing advances overriding interest likely prejudiced unlike waller right asserted defendant sixth amendment right public trial since defendant requested closed preliminary hearing instead right asserted public first amendment see gannett supra powell concurring california concluded first amendment implicated proceeding criminal trial preliminary hearing however first amendment question resolved solely label give event trial otherwise particularly preliminary hearing functions much like trial cases dealing claim first amendment right access criminal proceedings decisions emphasized two complementary considerations first tradition accessibility implies favorable judgment experience globe newspaper quoting richmond newspapers virginia brennan concurring judgment considered whether place process historically open press general public example observed since development trial jury process selection jurors presumptively public process exceptions good cause shown richmond newspapers reviewed early history england open trials day trial much like town meeting days norman conquest criminal cases brought moots collection freemen community public trial one essential qualities justice england recognized early colonies risks course inherent town meeting trial risk might become gathering moved emotions passions growing nature crime lynch mob ambience hardly conducive calm reasoned based evidence plainly modern trial jurors open interrogation possible bias far cry town meeting trial ancient english practice yet even modern procedural protections origin ancient principle provided closed proceedings rather rules conduct attend trials richmond newspapers supra second setting traditionally considered whether public access plays significant positive role functioning particular process question globe newspaper supra although many governmental processes operate best public scrutiny takes little imagination recognize kinds government operations totally frustrated conducted openly classic example proper functioning grand jury system depends upon secrecy grand jury proceedings douglas oil petrol stops proceedings plainly require public access summarized holdings prior cases noting openness criminal trials including selection jurors enhances basic fairness criminal trial appearance fairness essential public confidence system considerations experience logic course related history experience shape functioning governmental processes particular proceeding question passes tests experience logic qualified first amendment right public access attaches even right access attaches absolute globe newspaper superior supra open criminal proceedings give assurances fairness public accused limited circumstances right accused fair trial might undermined publicity cases trial must determine whether situation rights accused override qualified first amendment right access stated presumption may overcome overriding interest based findings closure essential preserve higher values narrowly tailored serve interest interest articulated along findings specific enough reviewing determine whether closure order properly entered iv considerations led apply first amendment right access criminal trials richmond newspapers globe selection jurors lead us conclude right access applies preliminary hearings conducted california first tradition accessibility preliminary hearings type conducted california although grand jury proceedings traditionally closed public accused preliminary hearings conducted neutral detached magistrates open public long ago celebrated trial aaron burr treason example chief justice marshall sitting trial judge hearing held hall house delegates virginia courtroom small accommodate crush interested citizens burr cas cc burr present day near uniform practice state federal courts conduct preliminary hearings open noted gannett several following original new york field code criminal procedure published allowed preliminary hearings closed motion accused even proceedings presumptively open public closed cause shown open preliminary hearings therefore accorded favorable judgment experience globe second question whether public access preliminary hearings conducted california plays particularly significant positive role actual functioning process already determined richmond newspapers globe public access criminal trials selection jurors essential proper functioning criminal justice system california preliminary hearings sufficiently like trial justify conclusion california bring felon trial prosecutor choice securing grand jury indictment finding probable cause following preliminary hearing even accused indicted grand jury however absolute right elaborate preliminary hearing neutral magistrate hawkins superior cal accused right personally appear hearing represented counsel hostile witnesses present exculpatory evidence exclude illegally obtained evidence cal penal code ann west west supp magistrate determines probable cause exists accused bound trial finding leads guilty plea majority cases true unlike criminal trial california preliminary hearing result conviction accused adjudication magistrate judicial officer without jury features standing alone make public access less essential proper functioning proceedings overall criminal justice process extensive scope preliminary hearing often final important step criminal proceeding see waller georgia california stated san jose municipal cal preliminary hearing many cases provides sole occasion public observation criminal justice system see also richmond newspapers similarly absence jury long recognized inestimable safeguard corrupt overzealous prosecutor complaint biased eccentric judge duncan louisiana makes importance public access preliminary hearing even significant people open society demand infallibility institutions difficult accept prohibited observing richmond newspapers denying transcript preliminary hearing frustrate characterized community therapeutic value openness criminal acts especially certain violent crimes provoke public concern outrage hostility public aware law enforced criminal justice system functioning outlet provided understandable reactions emotions see also weihofen urge punish reik compulsion confess sum value openness lies fact people actually attending trials confidence standards fairness observed sure knowledge anyone free attend gives assurance established procedures followed deviations become known openness thus enhances basic fairness criminal trial appearance fairness essential public confidence system supra emphasis original since qualified first amendment right access attaches preliminary hearings california cal penal code ann et seq west proceedings closed unless specific record findings made demonstrating closure essential preserve higher values narrowly tailored serve interest supra see also globe newspaper interest asserted right accused fair trial preliminary hearing shall closed specific findings made demonstrating first substantial probability defendant right fair trial prejudiced publicity closure prevent second reasonable alternatives closure adequately protect defendant fair trial rights see supra richmond newspapers supra california interpreting access statute concluded magistrate shall close preliminary hearing upon finding reasonable likelihood substantial prejudice cal acknowledged reasonable likelihood test places lesser burden defendant substantial probability test hold called first amendment see ibid see also lucas concurring dissenting moreover failed consider whether alternatives short complete closure protected interests accused gannett observed publicity concerning pretrial suppression hearings one involved present case poses special risks unfairness whole purpose hearings screen unreliable illegally obtained evidence insure evidence become known jury cf jackson denno publicity concerning proceedings pretrial hearing however influence public opinion defendant inform potential jurors inculpatory information wholly inadmissible actual trial standard applied california failed consider first amendment right access criminal proceedings accordingly judgment california reversed ordered footnotes similarly interests accused may implicated protection victims sex crimes trauma embarrassment public scrutiny may justify closing certain aspects criminal proceeding see globe newspaper superior vast majority considering issue concluded tradition accessibility applies criminal trials applies preliminary proceedings see arkansas television tedder ark miami herald publishing lewis page lumpkin gannett pacific richardson haw state ex rel publishing porter superior ind ashland publishing asbury app great falls tribune district mont keene publishing cheshire county superior state williams westchester rockland newspapers leggett minot daily news holum state ex rel dayton newspapers phillips ohio philadelphia newspapers jerome lewis utah herald ellison federated publications kurtz state ex rel herald mail hamilton williams stafford wyo cf midland publishing proceedings leading person indictment open public courts noted pretrial proceedings historical counterpart given importance pretrial proceeding criminal trial traditional right access still apply see iowa freedom information council wifvat iowa minneapolis star tribune kammeyer richmond newspapers commonwealth see state mckenna idaho davis sheriff although arizona iowa montana north dakota pennsylvania utah closure statutes based field code see gannett found either state constitutional right public attend pretrial proceedings see phoenix newspapers superior iowa freedom information council wifvat supra great falls tribune district supra minot daily news holum supra commonwealth hayes lewis supra justice stevens justice rehnquist joins part ii dissenting constitutional question presented case whether members public first amendment right insist upon access transcript preliminary hearing period public trial even though accused prosecutor trial judge agreed sealing transcript order assure fair trial preliminary hearing transcript petitioner sought access consists pages testimony prosecution witnesses heard eight weeks testimony contained volumes accuses robert diaz nurse murdering patients hospital worked injecting lethal doses heart drug transcript reveals defense put witnesses immediately magistrate ordered defendant bound trial defense counsel moved transcript preliminary hearing sealed protect client right fair trial transcript words magistrate revealed one side story app transcript also contained magistrate characterization diaz dangerous type individual prosecutor oppose motion magistrate hearing petitioner objection ordered transcript sealed superior trial judge denied motion unseal transcript found finding amply supported record reasonable likelihood making part transcripts public might prejudice defendant right fair impartial trial accord magistrate earlier rejected less restrictive alternatives sealing transcript concluding way protect defendant fair trial right seal transcript appeal agreed trial judge denied peremptory writ mandate sought petitioner rejected petitioner assertion superior failed state reasons make specific finding support sealing order app pet cert instead confirmed trial judge determinations transcript indicative prosecutorial side case public right access overborne reasonable likelihood substantial prejudice defendant right fair trial lternatives sealing transcript suffice case california similarly denied petitioner request peremptory writ mandate affirming preliminary hearing transcript sealed upon showing reasonable likelihood substantial prejudice impinge upon right fair trial cal view trial judge obvious legitimate reason refusing make transcript public sooner decision plainly violate defendant right public trial sixth amendment defendant objected release transcript see gannett depasquale opinion judge decision violate first amendment either although perhaps obvious bears emphasis first amendment right asserted petitioner right publish otherwise communicate information lawfully unlawfully acquired right lies core first amendment erased legacy restraints publication drafters amendment rebelled see grosjean american press may overcome governmental objective highest order attainable less intrusive way see smith daily mail publishing landmark communications virginia oklahoma publishing district per curiam nebraska press assn stuart cox broadcasting cohn first amendment right asserted petitioner case contrast right publicize information possession right acquire access thereto long believed proper construction first amendment embraces right access information conduct public affairs madison wrote popular government without popular information means acquiring prologue farce tragedy perhaps knowledge forever govern ignorance people mean governors must arm power knowledge gives writings james madison hunt ed sufficient therefore channels communication free governmental restraints without protection acquisition information operation public institutions prisons public large process contemplated framers stripped substance reason information gathering entitled measure constitutional protection houchins kqed stevens dissenting always apparent freedom obtain information government legitimate interest disclosing see globe newspaper superior stevens dissenting far narrower freedom disseminate information virtually absolute contexts richmond newspapers virginia stevens concurring case risk prejudice defendant right fair trial perfectly obvious risk far significant countervailing interest publishing transcript preliminary hearing sooner rather later cf gannett depasquale upholding closure suppression hearing part denial access case absolute temporary interest prompt publication view greater interest prompt publication grand jury transcripts explained fully always recognized legitimacy governmental interest secrecy grand jury proceedings unpersuaded difference proceedings rather elaborate procedure determining probable cause california adopted strengthens first amendment claim access asserted case ii nevertheless reaches opposite conclusion applying two complementary considerations ante experience logic ante view neither reasoning result reaches supported precedents historical evidence proffered case far less probative evidence adduced prior cases granting public access criminal proceedings cases tradition openness time first amendment ratified suggested intention expectation part framers ratifiers proceedings remain presumptively open thus richmond newspapers virginia chief justice explained hat significant present purposes throughout evolution trial open cared observe historical evidence demonstrates conclusively time organic laws adopted criminal trials england long presumptively open emphasis added history relevant demonstrated bill rights enacted backdrop long history trials presumptively open public access trials regarded important aspect process opinion globe newspaper superior also concerned presumptive openness criminal trial relied expressly opinion chief justice richmond newspapers point criminal trials open time organic laws adopted later superior quoted identical passage richmond newspapers see concluded ublic jury selection thus common practice america constitution adopted dispel doubt regarding significance evidence explained question address whether voir dire process must open focuses first amendment values historical backdrop first amendment enacted emphasis added thus prior cases history mattered primarily revealed intentions framers ratifiers first amendment case however uncontroverted right access inhere preliminary proceedings time first amendment adopted framers ratifiers provision intended proceedings remain open justice stewart wrote gannett depasquale exists persuasive evidence common law members public right attend pretrial proceedings indeed substantial evidence contrary time adoption constitution pretrial proceedings precisely concern fair trial never characterized degree openness actual trials english common law public right attend pretrial proceedings jenks book english law ed must course remembered principle publicity applies actual trial case necessarily preliminary prefatory stages proceedings maitland justice police preliminary examination accused persons gradually assumed judicial form place held indeed open public excluded magistrate thinks ends justice thus best answered see also indictable offenses act ch providing pretrial proceedings deemed open public therefore excluded magistrates courts act geo eliz ch footnotes omitted thing important another administration justice jurymen come trial persons whose guilt innocence decide minds pure unprejudiced trials law fairly reported although may occasionally prove injurious individuals held privileged let continue privileged preliminary examinations privilege tendency prejudge law still presumes innocent poison sources justice king fisher camp eng historical evidence proves little value openness ante quoting superior relies proves much measure open public scrutiny far preliminary hearings conducted california comforting phrase invoked one form another eight times opinion brief rationale opening california preliminary hearing often final important step criminal proceeding provides sole occasion public observation criminal justice system lacks protective presence jury closure denies outlet community catharsis ante quotation omitted obvious defect approach reasoning applies traditionally secret grand jury much force applies california preliminary hearings grand jury indictment likely final step criminal proceeding sole occasion public scrutiny preliminary hearing moreover many critics grand jury maintain grand jury protects accused less well legally knowledgeable judge personally presides preliminary hearing see hawkins superior cal holding deprivation preliminary hearing constitute denial equal protection state constitution part grand jury total captive prosecutor candid concede indict anybody time almost anything grand jury quoting campbell eliminate grand jury crim finally closure grand juries denies outlet community rage explanatory veneer stripped away emerges reality california preliminary hearing functionally identical traditional grand jury chief justice emphasized quotation cox coleridge eng concurring opinion gannett depasquale emphasis added proceeding preliminary inquiry whether sufficient ground commit prisoner trial proceeding grand jury precisely nature difficult right exists present case deny preliminary inquiry trial makes mind difference fact logic access right extends even beyond confines criminal justice system encompass proceedings held civil side docket well justice stewart explained existence rule test whether sixth amendment public right public trial therefore right civil well criminal cases short principled basis upon public right access judicial proceedings limited criminal cases scope right defined common law rather text structure constitution indeed many advantages public criminal trials equally applicable civil trial context thus civil cases public interest access salutary effect publicity may strong stronger criminal cases gannett depasquale abjuring strict reliance history emphasizing broad value openness tacitly recognizes importance public access government proceedings generally regrettably taken seriously stated requirement sealing transcript justified compelling overriding governmental interest closure order narrowly tailored serve interest ante quoting superior superior quoting globe newspaper superior see ante standard well test history logic formed basis decision today originated two helpful principles justice brennan eloquent concurrence richmond newspapers virginia concurrence recognized restrictions action clothed ingenious argument garb decreased data flow quoting zemel rusk contrast decision today stressed assertion prerogative gather information must accordingly assayed considering information sought opposing interests invaded omitted determination much matter sensitivity practical necessities abstract reasoning ibid cases denying access done far lesser showing required compelling governmental restrictive means analysis see supra cases granting access recognized legitimate grounds closure interests fall far short traditionally thought compelling see superior privacy interest venirepersons sufficient reason close presumptively open voir dire proceeding see also richmond newspapers virginia stewart concurring judgment presence legitimate reason closure case requires affirmance constitutionally grounded fair trial interests accused bound trial reputational interests accused provide substantial reason delaying access transcript least short time trial taking verbal formulation seriously reverses without comment explanation attempt reconciliation holding gannett reasonable probability prejudice enough overcome first amendment right access preliminary proceeding unfortunate neglects opportunity fit result case body precedent dealing access rights generally fear today decision simply unsettle law area respectfully dissent ruling magistrate recognized affirmative constitutional duty insure defendant fair trial app gannett depasquale safeguard due process rights accused trial judge affirmative constitutional duty minimize effects prejudicial pretrial publicity constitution pervasive concern due process rights trial judge may surely take protective measures even strictly inescapably necessary citation omitted indeed appeal determined release transcript employment alternatives tend exacerbate existing prejudice app pet cert emphasis added citation omitted see richmond newspapers virginia brennan concurring judgment saxbe washington post powell dissenting separate writing houchins appended quotation justice stewart dissenting opinion branzburg hayes emphasis added stated right gather news dimensions must exist majority agreed observation acknowledging news gathering without first amendment protections without protection seeking news freedom press eviscerated see also zemel rusk right speak publish carry unrestrained right gather information emphasis added houchins explained believed plaintiffs entitled put end warden policy concealing prison conditions public conditions wholly without claim confidentiality prison officials interest time manner public acquisition information institutions administer legitimate penological justification concealing citizens conditions fellow citizens confined seemed clear official prison policy concealing knowledge public arbitrarily cutting flow information source abridges freedom speech press protected first fourteenth amendments constitution omitted accord geis preliminary hearings press ucla rev preliminary hearings american colonies closely followed prescriptions english statutes omitted chief justice pointed concurring opinion gannett common law different presumption favor closure proceedings preceded trial one ever suggested right public present pretrial proceedings available time bill rights adopted ironically california michigan preliminary proceedings generally open public thus surprisingly part recent trend favor openness relied facts record case california courts ordered transcript sealed since many decisions collected hold right public preliminary hearing personal accused see state porter superior ind azbill fisher commonly overcome showing potentially prejudicial publicity equivalent less required california see state burak supp likelihood prejudice edwards likelihood cert denied gannett pacific richardson haw substantial likelihood westchester rockland newspapers leggett strong likelihood lewis utah realistic likelihood prejudice richmond newspapers commonwealth likelihood federated publications kurtz likelihood jeopardy courts presumably also denied access presented facts case observation view fact reasoning state courts heavily dependent cases granting access criminal proceedings even ultimately grounded state law remarkable finds historical basis public right access preliminary proceedings showing excess required california met defendant case given focus history preliminary proceedings general reliance broad values served openness see ante see relevance fact preliminary proceedings california bear outward resemblance criminal trials extent matters california accused right personally appear hearing represented counsel hostile witnesses present exculpatory evidence exclude illegally obtained evidence ante citing cal penal code ann west west bears mention many reformed grand juries include one procedural reforms see lafave israel criminal procedure today decision one wonder whether public enjoys right access proceedings well five reasons commonly given policy grand jury secrecy prevent escape whose indictment may contemplated insure utmost freedom grand jury deliberations prevent persons subject indictment friends importuning grand jurors prevent subornation perjury tampering witnesses may testify grand jury later appear trial indicted encourage free untrammeled persons information respect commission crimes protect innocent accused exonerated disclosure fact investigation expense standing trial probability guilt douglas oil petrol stops northwest quoting rose procter gamble see illinois abbott associates