of the access question in this case. The first relates to the hearing itself; i.e., whether the press may be present while the court makes initial authentication/suppression determination. The second aspect relates to the circumstances that will obtain after we have ruled on the suppression and Starks motions. More particularly, this second aspect focuses on the question whether, if we grant the Starks motion and deny the suppression motion, thus ruling that the tapes were properly obtained and admissible at trial, the public and the media will then have access to the transcripts of the hearing and the evidence introduced therein, including the tapes or transcripts of them. Such a state of affairs would be both similar and dissimilar to Gurney. It would be similar in that there would be evidence which, barring sustainable objections on grounds of irrelevancy or prejudice, presumably would be admissible at trial, but which nonetheless would not yet have been introduced into evidence. Gurney held that where documents had not yet been introduced into evidence, they were not yet subject to public scrutiny.
However, after the Starks /suppression hearing, this case would be dissimilar to Gurney in that there would have been a formal adjudicative proceeding before a federal trial judge in a federal courthouse. A most forceful argument can be made that such a situation is distinguishable from Gurney on the grounds that what has been the subject of such a formal adjudicative proceeding, as well as the proceeding itself, should be subject to public scrutiny and therefore accessible to the media. Although we can find no binding judicial pronouncement on the point, it seems to us that there should be a strong general presumption in favor of the openness of proceedings conducted by a judge in his courtroom, much like that announced by Mr. Justice Blackmun in his opinion sur re-application for a stay of the Lincoln County District Court order in Nebraska Press, 423 U.S. 1327, 46 L. Ed. 2d 237, 96 S. Ct. 251 (1975) (in chambers). There Justice Blackmun noted the governing principles that the press is, in general, to be free and unrestrained and that facts are presumed to be in the public domain. 423 U.S. at 1333.
We concur with this presumption and with the observations to this effect made by counsel at argument. This is especially so, it has been argued, where the subject matter of the litigation is a State Senator and the charges involved implicate his stewardship and the public trust. See Gannett Co. v. DePasquale, No. 549, 43 N.Y.2d 370, 372 N.E.2d 544, 401 N.Y.S.2d 756 (N.Y. Ct. App. 1977) 435 U. S. 1006, 98 S. Ct. 1875, 56 L. Ed. 2d 387 (1978). Moreover, although the press did not so argue, Justice Brennan noted in his concurring opinion in Nebraska Press that the press has a particular First Amendment interest in suppression proceedings in view of the fact that at issue in such proceedings are the practices of law enforcement officers in conducting investigations. 427 U.S. at 606-07. We consider such concerns to be especially compelling when the focus is on law-enforcement use of electronic surveillance. See generally Part V, infra.
As with most things, however, we cannot decide hard cases by simplistic rules. Indeed, a strict application of the general rule which we have suggested would unleash a Pandora's Box of problems. We consider, for example, pretrial and settlement conferences. The presence of the public or the media at such conferences would be destructive of orderly procedure and, more importantly, would tend to chill the kind of confidential communication and discussion that is essential to the court's important role in the mediation of disputes.
Secondly, we consider the question of pretrial discovery, on which there is already authority in Times Newspapers Ltd. v. McDonnell Douglas Corp., 387 F. Supp. 189 (C.D.Cal. 1974). The court there held that the First Amendment does not grant newspaper reporters access to depositions. The court noted that depositions are not a judicial trial nor a part of a trial but a proceeding preliminary to trial; neither the public nor representatives of the press have the right to be present at such proceedings.
Until a deposition has been presented to the court [not the Clerk] and ordered opened, it does not become evidence in the case, nor has either party until then an opportunity to be heard on the question of competency, materiality, or relevancy of the statements made by the witness, and the public can have no right to know what the testimony is until the court knows what it is.
387 F. Supp. at 197.
Bench conferences comprise another aspect of the judicial process that has been addressed by the courts. In Gurney, the Court noted that the press does not have access to such conferences. 558 F.2d at 1210.
Trade secret cases, in which the records of both trial and pretrial proceedings contain evidence of trade secrets, are another important consideration. Consider a case that might occur in the United States District Court for the Northern District of Georgia in Atlanta when a federal judge for some reason ordered the Coca-Cola Company to produce from its safe in the bank vault the formula for Coca-Cola. Might it be contended that because it was produced before a federal trial judge, who held an in camera hearing to determine its admissibility and then ruled adversely to admissibility, that the public and the media was entitled to the Coca-Cola recipe? The question is rhetorical and answers itself. It demonstrates that there are privileges and confidentiality or privacy rights to which First Amendment considerations must yield.
Closely related is the question of procedures for determination of various kinds of privileges, including those recognized either at common law or by statute. Frequently, courts are called upon to rule whether the attorney-client privilege, the husband-wife privilege, the physician-patient privilege, or the like is validly asserted. Traditionally, lest the baby be thrown out with the bath water, courts have held such conferences in camera. Were courts to proceed otherwise, public airing of the documents that the court had to scrutinize in order to evaluate a claim of privilege would emasculate the purpose of the privilege claim altogether.
There are thus sound logical bases for some limitations on First Amendment access. Indeed, conceding many of these, media counsel suggested that the appropriate test for media access is whether the court is conducting a formal adjudicative proceeding. The specific question before us, however, is whether a Title III suppression hearing is within the category of those proceedings to which the press has a First Amendment right of access.
The defendant has argued that because the purpose of the suppression and Starks hearings is to determine whether the tapes are presumptively admissible, the principle based on privilege determination is applicable here. He argues that to permit public access would, in the event the tapes are held at the hearing to be inadmissible, defeat the entire purposes of the suppression motion because the press and the public, including potential jurors, would have pre-trial access to inadmissible evidence.
The question of media access to pretrial proceedings has been addressed by the American Bar Association Project on Minimum Standards for Criminal Justice in its Standards Relating to Fair Trial and Free Press. In the presently extant Rule 3.1, entitled "Pretrial Hearings," the standard reads in pertinent part:
In any pretrial hearing in a criminal case, including a motion to suppress evidence, the defendant may move that all or part of the hearing be held in chambers or otherwise closed to the public on the ground that dissemination of evidence or argument adduced at the hearing may disclose matters that will be inadmissible in evidence at the trial and is therefore likely to interfere with his right to a fair trial by an impartial jury. The motion shall be granted unless the presiding officer determines that there is no substantial likelihood of such interference.