decided: April 28, 1978.
PHILADELPHIA NEWSPAPERS, INC., THE ASSOCIATED PRESS, CENTRAL STATES PUBLISHING INC., THE PENNSYLVANIA NEWSPAPER PUBLISHERS ASSOCIATION, THE PENNSYLVANIA SOCIETY OF NEWSPAPER EDITORS, AND THE SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, GREATER PHILADELPHIA CHAPTER, PETITIONERS,
THE HONORABLE DOMENIC D. JEROME, JUDGE OF THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA. EQUITABLE PUBLISHING COMPANY, INC., THE SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, GREATER PHILADELPHIA CHAPTER, THE PENNSYLVANIA NEWSPAPER PUBLISHERS ASSOCIATION AND THE PENNSYLVANIA SOCIETY OF NEWSPAPER EDITORS, PETITIONERS, V. THE HONORABLE ROBERT W. HONEYMAN, JUDGE OF THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA. MONTGOMERY PUBLISHING COMPANY, PETITIONER, V. THE HONORABLE ROBERT W. HONEYMAN, JUDGE OF THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA. EQUITABLE PUBLISHING COMPANY, INC., THE SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, GREATER PHILADELPHIA CHAPTER, THE PENNSYLVANIA NEWSPAPER PUBLISHERS ASSOCIATION, AND THE PENNSYLVANIA SOCIETY OF NEWSPAPER EDITORS, PETITIONERS, V. THE HONORABLE LAWRENCE A. BROWN, JUDGE OF THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA. MONTGOMERY PUBLISHING COMPANY, PETITIONER, V. THE HONORABLE LAWRENCE A. BROWN, JUDGE OF THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
Kohn, Savett, Marion & Graf, David H. Marion, Samuel E. Klein, Philadelphia, for petitioners at No. 384.
Dechert, Price & Rhoads, Arthur E. Newbold, IV, Philadelphia, for petitioner at Nos. 399 and 406.
Morgan, Lewis & Bockius, Roberta S. Staats, Philadelphia, for petitioner at Nos. 400, 401 and 407.
Jonathan Vipond, III, Philadelphia, for respondent at Nos. 384, 399, 400, 401, 406 and 407.
Richard A. Sprague, Philadelphia, for Commonwealth at No. 384.
A. Charles Peruto, Philadelphia, for defendant at No. 384.
William T. Nicholas, Dist. Atty., Ross Weiss, 1st Asst. Dist. Atty., Montgomery County, for Commonwealth at Nos. 399, 400, 401, 406 and 407.
Vincent J. Fumo, Philadelphia, for defendant at Nos. 399, 400 and 401.
Joseph C. Santaguida, Philadelphia, for defendant at Nos. 406 and 407.
Robert P. Kane, Atty. Gen., for Commonwealth at No. 406.
Roberts, Justice. Packel, J., did not participate in the consideration of this opinion.
[ 478 Pa. Page 489]
OPINION OF THE COURT
Petitioner newspapers*fn1 filed in this Court petitions for writs of mandamus and prohibition and for extraordinary
[ 478 Pa. Page 490]
relief, challenging the constitutionality of orders issued by respondent judges, upon the request of defendants in three criminal proceedings, pursuant to the Pennsylvania Rules of Criminal Procedure.*fn2 Petitioners contended that these orders, limiting public access to pre-trial hearings on motions to suppress evidence, denied their right of access to judicial proceedings. We concluded that petitioners failed to demonstrate that the orders denied them clear rights and therefore denied the petitions.
I. Procedural History
In Commonwealth v. Boyle, Nos. 650-A, 650-B, and 650-C, Washington County, March Session, 1974, the defendant Boyle was accused of ordering the death of United Mineworkers union official Joseph Yablonski, a crime which received massive national publicity. On January 24, 1974, we granted Boyle's request to change venue from Washington County because of extensive publicity concerning the crime.*fn3 In Commonwealth v. Palmer, No. 149-77, Montgomery County, the defendant, a police officer, was accused of kidnapping and killing a Montgomery County citizen. Petitioner
[ 478 Pa. Page 491]
Equitable Publishing averred in its petition that the proceedings were "of the highest public interest and concern in Montgomery County."*fn4 In Commonwealth v. Phillips, No. 5060-76, Montgomery County, the defendant was accused of murdering a Montgomery County police officer. Equitable Publishing characterized these proceedings as attracting similar public interest.
Each defendant filed a pre-trial motion to suppress evidence in accordance with the Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 323(a), providing for a pre-trial hearing to determine the admissibility of evidence defendants claim has been obtained in violation of their constitutional rights.*fn5 Each defendant requested the trial court to exercise its authority, pursuant to Pa.R.Crim.P. 323(f), 323(g), 326, and 327,*fn6 to enter special orders closing the pre-trial hearing to the public, sealing the record of these pre-trial proceedings, and prohibiting participants in these proceedings from discussing, disclosing, or disseminating evidence "the admissibility of which may have to be determined by the Court." Respondent Judge Jerome entered the requested order in Boyle.*fn7 Respondents Judges Honeyman
[ 478 Pa. Page 492]
and Brown entered the requested orders in Palmer and Phillips, respectively.*fn8
On May 3, 1977, one day after pre-trial suppression proceedings in Commonwealth v. Boyle began, Philadelphia Newspapers filed a petition to vacate the orders of respondent Judge Jerome, and a request to stay the pre-trial proceedings. Judge Jerome declined to rule on the petition to vacate the orders until completion of the pre-trial proceedings and refused the stay. One day later, Philadelphia Newspapers filed in this Court its petitions for writs of mandamus and prohibition and for extraordinary relief, requesting this Court to direct Judge Jerome to hold the suppression hearing open to the public and provide other appropriate relief, including a stay of all proceedings. On May 9, 1977, Judge Jerome again declined to rule on the petition, believing he lacked jurisdiction over the controversy
[ 478 Pa. Page 493]
once petitioner sought special relief in this Court. On May 23, 1977, we denied the requested relief.
Equitable Publishing, on May 12, 1977, filed with the trial court a motion to vacate the orders of Judge Honeyman in Commonwealth v. Palmer. Judge Honeyman did not act upon the motion until May 24. Judge Honeyman denied the motion on the basis that the newspapers were without standing to intervene in the criminal proceedings. On May 26, Equitable Publishing filed its petitions for special relief in this Court, requesting the same relief as Philadelphia Newspapers did from the orders in Commonwealth v. Boyle.*fn9 Equitable Publishing averred here that the suppression hearing record had been unavailable only until May 20, 1977, when Palmer's trial ended.*fn10 We denied relief on June 20, 1977.
On May 12, 1977, Equitable Publishing filed a motion to vacate the orders of Judge Brown in Commonwealth v. Phillips. Judge Brown did not rule upon the motion until June 2, 1977, when he dismissed the motions for the same reason as Judge Honeyman. Equitable Publishing filed its petitions for special relief in this Court on June 7, requesting the same relief it sought from the orders in Commonwealth v. Palmer. On June 20, 1977, we denied relief.
Petitioners appealed from the orders of this Court to the Supreme Court of the United States. On January 9, 1978, 434 U.S. 241, 98 S.Ct. 546, 54 L.Ed.2d 506, the Court, per curiam, concluded that the record did not indicate whether we "passed on [petitioners'] federal claims" or whether we denied special relief "on an adequate and independent state ground." The Court therefore vacated our orders denying special relief and "remand[ed] the cause to [this C]court for such further proceedings as [we] may deem appropriate to
[ 478 Pa. Page 494]
clarify the record. See California v. Krivda, 409 U.S. 33, [93 S.Ct. 32, 34 L.Ed.2d 45] (1972)." Mr. Justice Rehnquist, joined by Mr. Justice Stevens, filed a dissenting opinion. On February 9, 1978, this Court received the official mandate of the Supreme Court. Accordingly, we file this opinion.
II. State Remedies Requested by Petitioner Newspapers
Petitioners sought writs of prohibition and mandamus from this Court.*fn11 Prohibition and mandamus both
[ 478 Pa. Page 495]
require a party seeking relief to establish a violation of clear rights not remediable by ordinary processes. This requirement ensures that only the most meritorious claims will require this Court to depart from its normal appellate function and consider an original proceeding. Petitioners failed to establish their entitlement to these extraordinary remedies because they did not present a showing that the orders of respondents, entered pursuant to the Pennsylvania Rules of Criminal Procedure, denied clear rights of petitioners. We therefore denied the petitions.
We first discuss the nature of Pa.R.Crim.P. 323(f) & (g), 326, and 327, pursuant to which the challenged orders were issued. We then discuss petitioners' asserted right of access to pre-trial judicial proceedings and the circumstances in which this right may be temporarily limited in order to protect constitutional rights of individuals and important interests of the public. We next discuss the nature of the right of defendants to trial by an impartial jury and the interest of the Commonwealth and its citizens in the prompt and fair disposition of criminal litigation, both of which are protected by Rules 323, 326, and 327. Finally, we set forth why on these records the Rules of Criminal Procedure may permissibly be applied in these cases to enforce constitutional rights of the accused and promote public interests.
III. The Pennsylvania Rules of Criminal Procedure and Their Objectives
The Pennsylvania Rules of Criminal Procedure "are intended to provide for the just determination of every criminal proceeding," Pa.R.Crim.P. 2, and "secure simplicity in procedure, fairness in administration and the elimination of unjustified expense and delay . . . ." Id. This comprehensive set of statewide Rules assists in the fair, prompt,
[ 478 Pa. Page 496]
orderly, and uniform resolution of recurring problems in the administration of our state system of criminal justice.*fn12
The Rules upon which the challenged orders were based serve an important function in this scheme by avoiding premature disclosure of information which would jeopardize the right of an accused to an impartial jury. Pa.R.Crim.P. 323(f) & (g) provides:
" Suppression of Evidence
(f) The hearing, either before or at trial, shall be held in open court unless defendant moves that it be held in the presence of only the defendant, counsel for the parties, court officers and necessary witnesses. If the hearing is held after the jury has been sworn, it shall be held outside the hearing and presence of the jury. In all cases the court may make such order concerning publicity of the proceedings as it deems appropriate under Rules 326 and 327.
(g) A record shall be made of all evidence adduced at the hearing. The clerk of court shall impound the record and the nature and purpose of the hearing and the order disposing of the motion shall not be disclosed by anyone to anyone except to the defendant and counsel for the parties. The record shall remain thus impounded unless the interests of justice require its disclosure.
Pa.R.Crim.P. 326 provides:
" Special Orders Governing Widely-Publicized Or Sensational Cases
[ 478 Pa. Page 497]
In a widely-publicized or sensational case, the Court, on motion of either party or on its own motion, may issue a special order governing such matters as extra-judicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters which the Court may deem appropriate for inclusion in such an order. In such cases it may be appropriate for the court to consult with representatives of the news media concerning the issuance of such a special order."
Pa.R.Crim.P. 327 provides:
" Public Discussion of Pending Or Imminent Criminal Litigation By Court Personnel
All court personnel including, among others, court clerks, bailiffs, tipstaffs and court stenographers are prohibited from disclosing to any person, without authorization by the court, information relating to a pending criminal case that is not part of the public records of the court. This rule specifically prohibits the divulgence of information concerning arguments and hearings held in chambers or otherwise outside the presence of the public."
At a suppression hearing, the accused challenges the admissibility of inculpatory statements, alleged instruments of crime and alleged fruits of crime on grounds that the Commonwealth has obtained such evidence through violation of constitutional or other rights of the accused. Commonwealth witnesses, including police officers, may testify about the crime, and the involvement and behavior of the accused, or his prior criminal record. The accused may choose to testify or present witnesses to challenge the Commonwealth's evidence. Thus, Rules 323, 326 and 327 provide the trial court with a method for avoiding pre-trial exposure of potential jurors to evidence challenged at suppression hearings, thus eliminating a substantial impediment to selection of an unbiased jury.
[ 478 Pa. Page 498]
These Rules also ensure that a defendant's right to have unconstitutionally seized evidence suppressed will not be chilled by fear that information becoming public at a suppression hearing will make an impartial jury difficult or impossible to select. Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) (government may not use fear of death penalty to dissuade defendant from asserting right to jury trial); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (prosecution cannot use statements obtained from policemen threatened with discharge if they refused to testify); see generally Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).*fn13
These Rules are designed to promote the clear public interest in having persons accused of crime tried fairly, expeditiously, economically, and only once. If prejudicial publicity occurs, the trial court may have to continue the case, change venue, resort to extensive voir dire to assure that the attitudes of jurors have not been influenced by disclosure, or use the costly and inconvenient device of jury sequestration. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). If the trial court takes inadequate remedial measures, an appellate court would be compelled to reverse a conviction, starting the trial process anew.
Essential to the stability and efficiency of our state court system is the requirement that our trial courts control court calendars. See ABA Project on Standards For Criminal Justice, Standards Relating to The Function of The Trial
[ 478 Pa. Page 499]
Judge § 3.8 (Approved Draft, 1972); Standards Relating to Speedy Trial Part I (Approved Draft, 1968). Without Rules 323, 326 and 327, the time and place for trial in this kind of case would in reality be fixed not by courts, but by the timing and degree of premature disclosures of information from suppression hearings. Thus, the Rules, temporarily precluding disclosure of such information wherever necessary, maintain in the courts control over court calendars, assuring uniformity and evenhanded enforcement of criminal justice.
IV. Free Press and The Limited Right of Access to Pre-Trial Suppression Hearings
Petitioners argued that the Constitutions of the United States and Pennsylvania afford the public a right to have open judicial proceedings, including pre-trial motions to suppress. They contended that respondents' orders denied them this right.
Petitioners incorrectly characterize respondents' orders limiting public access to pre-trial suppression hearings deciding the admissibility of evidence in criminal proceedings as "prior restraints." A prior restraint prevents publication of information or material in the possession of the press and is presumed unconstitutional. See Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (when press obtained name and photo of juvenile, court could not prohibit publication); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (striking down order prohibiting publication of inculpatory statements and facts obtained by press).*fn14 These orders, however, issued in compliance with the Rules of Criminal Procedure, did not prevent petitioners from publishing any information in their possession or from writing
[ 478 Pa. Page 500]
whatever they pleased and therefore did not constitute a prior restraint upon publication.*fn15
The distinction between restraints upon the content of publication and limitations upon access is well established. For example, in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), the Court upheld prison regulations restricting press interviews with prisoners, but noted that the regulations did not prohibit publication of any material the press obtained. By contrast, in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the Court prohibited the government from enjoining publication of military documents in the hands of the press, but did not suggest that the government lacked the right to restrict access to them by classification.*fn16
The Supreme Court of the United States has held that restrictions may be placed upon access of the public and the press to certain information when the restrictions protect constitutional interests. McMullan v. Wohlgemuth, 415 U.S. 970, 94 S.Ct. 1547, 39 L.Ed.2d 863 (1974), dismissing for want of a substantial federal question, 453 Pa. 147, 308 A.2d 888 (1973) (press access properly restricted by state regulations protecting privacy of welfare recipients); see Sunbeam Television Corp. v. Shevin, U.S. , 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978), dismissing for want of a substantial federal question, 351 So.2d 723 (Fla. 1977) (upholding state law forbidding reporters from invading privacy by secretly taping interviews).*fn17 This rule applies
[ 478 Pa. Page 501]
the principle that government may, when necessary, protect personal liberties even where enforcement of those liberties may subordinate in limited instances the constitutional interests of others. For example, in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), the Supreme Court held that the 13th and 14th amendments empowered Congress to require private schools to desegregate even though desegregation deprived some citizens of the ability to associate for education in the manner they chose. Similarly, in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), the Court upheld tax exemptions for religious institutions as promoting freedom of religion despite the claim that the exemptions violated the establishment clause. Likewise, the state may recognize property interests in intellectual or artistic creations by prohibiting their publication or broadcast without permission. See Copyright Act, 17 U.S.C. §§ 101 et seq.; Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 575-576, 97 S.Ct. 2849, 2857, 53 L.Ed.2d 965 (1977) (citing cases).
The public undoubtedly has a strong interest in the judicial process. "A trial is a public event. What transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947); see In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (need for public trial to protect defendant). The Supreme
[ 478 Pa. Page 502]
Court of the United States has suggested that the public's interest in judicial proceedings is constitutionally protected by the sixth amendment right of the accused to a public trial. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) (dictum); see United States v. Cianfrani, 573 F.2d 835 (3d Cir., filed March 16, 1978); Pa.Const. art. I, § 11.*fn18 The press serves the important function of informing the public of these public proceedings. Sheppard v. Maxwell, supra; see generally ABA Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press (Approved Draft, 1968).*fn19
But the Supreme Court has never held that the first or sixth amendments create an absolute right of access to every court proceeding or to all information in the possession of the government or the courts. See Nebraska Press Ass'n v. Stuart, supra; Pell v. Procunier, supra; Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Both the Nebraska Press majority and the concurring opinion of Mr. Justice Brennan recognize that restrictions on access to pre-trial proceedings are different from restraints on the right to publish information available to the public. Supra, 427 U.S. at 564 n. 8, 599-603 & 601 n. 27, 96 S.Ct. at 2805 n. 8, 2822-23 & 2823 n. 27; see Sheppard v. Maxwell, 384 U.S. 333, 360-61, 86 S.Ct. 1507, 1521, 16 L.Ed.2d 600 (1966) (suggesting restraints on access to prevent prejudicial disclosure).
[ 478 Pa. Page 503]
In Oklahoma Publishing, the Court emphasized that Nebraska Press was aimed only at eliminating prior restraints directly prohibiting publication of information and not at any other measures protecting fair trials.
We believe that any limitation on access should be carefully drawn. First, the right of access to court proceedings should not be limited for any reason less than the compelling state obligation to protect constitutional rights of criminal defendants and the public interest in the fair, orderly, prompt, and final disposition of criminal proceedings.*fn20 Second, access should not be limited unless the threat posed to the protected interest is serious.*fn21 Third, rules or orders limiting access should effectively prevent the harms at which they are aimed.*fn22 Finally, the rules or
[ 478 Pa. Page 504]
orders should limit no more than is necessary to accomplish the end sought.*fn23 Because the challenged Rules and orders are closely tailored to protecting both the constitutional right of defendants to a fair trial and the public's interest in the fair and efficient administration of criminal justice, we denied relief.
A. The Challenged Rules and Orders Advance The Public Interest In A Fair and Prompt Criminal Trial
The Rules and Orders petitioners challenge are designed to protect the right of an accused to trial by an impartial jury. No right is more fundamental to the American system of justice. U.S.Const. Amend. VI; Pa.Const. art. I, § 9; Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Nebraska Press Ass'n v. Stuart, supra; Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1967); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).
Without a proper method for dealing with extensive publicity concerning a crime, a judicial system runs the serious risk that the jury will reach its verdict based on evidence from sources outside of the courtroom, contrary to the demands of due process. See Turner v. Louisiana, supra;
[ 478 Pa. Page 505]
testimony of the accused bearing on such statements,*fn26 or other information considered at the suppression hearing becomes public knowledge prematurely. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (trial court erred in denying change of venue where accused's statement to police had been televised repeatedly in the area from which the jurors were drawn); Commonwealth v. Bruno, supra (conviction reversed where trial court failed to question jurors concerning their exposure to publicized, suppressed confession); Commonwealth v. Pierce, supra (conviction reversed and venue changed where news accounts reported defendant's criminal record and confession to crime); see also Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (conviction reversed where jurors read newspaper accounts detailing defendant's criminal record); United States v. Williams, 568 F.2d 464 (5th Cir. filed February 27, 1978) (conviction reversed where jurors observed television broadcast concerning defendant's previous conviction). Our Rules are designed to give defendants such as Boyle, Palmer, and Phillips, all charged with murder for crimes generating substantial public attention, the opportunity to be tried, like any other persons accused of crime, on the basis of facts presented at trial.
Further, without proper means for temporarily limiting access to suppression hearings, defendants may be pressured into foregoing their right to challenge the manner in which police obtained inculpatory evidence. A defendant may feel compelled to give up this right out of fear that inculpatory evidence might become public knowledge before or during trial. Such pressure to forego a constitutional right denies due process. E. g., United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) (suspect denied due process by being required to waive jury trial to avoid death penalty). Even a defendant who chooses to risk such disclosure
[ 478 Pa. Page 507]
might be reluctant to testify or present favorable witnesses out of a similar fear of disclosure. The Rules serve to avoid circumstances compelling an accused to forego these important rights.*fn27
Prejudicial publicity from pre-trial suppression hearings injures the Commonwealth as well as the accused. Prejudicial disclosures may taint a trial or require a trial court to delay trial until publicity subsides. Neither delayed trials nor retrials present as favorable opportunities for establishing truth as timely first trials. By precluding prejudicial disclosures arising from pre-trial suppression hearings, the Rules promote the speedy and effective enforcement of the criminal laws, ensure swift convictions deterring crime, see A. von Hirsch, Doing Justice (1976), and avoid unnecessary expenditures of public funds and judicial resources.*fn28
Significantly, the orders here challenged were requested by the defendants. Rule 323(f), upon which the orders were based, provides that only a defendant may request a closed suppression hearing to protect his constitutional rights. See Commonwealth v. Bennett, 445 Pa. 8, 11-12 n. 3, 282 A.2d 276, 278 n. 3 (1971), following United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir. 1969) (court's sua sponte closure of suppression hearing violated defendant's right to public trial). This provision denies the prosecution the power to prevent disclosure of information
[ 478 Pa. Page 508]
concerning a criminal case, "gag" participants in the proceeding, or deprive an accused his right to open judicial proceedings. See note 8 supra (use of Rules 326 & 327).
Cases from federal courts of appeals demonstrate the importance of focusing on the defendant's protection of his constitutional rights. In Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970), the seventh circuit invalidated an order opposed by the defendants forbidding the defendants and attorneys for both prosecution and defense from publicly commenting on the case. See In re Oliver, 452 F.2d 111 (7th Cir. 1971). The order in Chase also covered all information about the case, whereas the challenged orders here involve only pretrial suppression hearings, generating information most likely to be extremely prejudicial to the accused. See notes 7 & 8 supra. Similarly, in Central South Carolina Chapter v. Martin, 556 F.2d 706 (4th Cir. 1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 771 (1978), the fourth circuit, while it approved a ban on pre-trial discussion of prejudicial matters not of public record, specifically noted the defendant was free to seek a modification of the order as it affected him.
Here, respondents entered orders in murder cases of great notoriety. In Commonwealth v. Boyle, the defendant is a national figure, accused of a crime of widespread attention. Publicity in this case had already compelled this Court to grant a change of venue. In Commonwealth v. Palmer and Commonwealth v. Phillips, petitioners averred that the crimes were also of widespread interest in the community. Thus, the challenged orders were aimed at averting a substantial threat to both the fundamental rights of the defendants and the public interest in prompt and orderly administration of criminal justice.
B. The Orders Imposed Only a Limitation on Access to Pre-Trial Suppression Hearings, Carefully Designed to Protect Rights of The Accused and Interests of The Public
The orders here are limited to pre-trial suppression hearings, which involve materials likely to be prejudicial to
[ 478 Pa. Page 509]
defendants. See supra notes 6-8 and accompanying text. In Central South Carolina Chapter v. Martin, supra, the fourth circuit demonstrated the significance of avoiding pre-trial disclosure of prejudicial information. The court invalidated parts of a pre-trial order prohibiting parties from mingling with the press on sidewalks adjacent to the courthouse and barring artists from sketching jurors, but upheld that part of the order prohibiting extra-judicial statements of participants "which might divulge prejudicial matter not of public record." In United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977), cert. denied sub nom. Miami Publishing Co. v. Krentzman, U.S. , 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978), the fifth circuit reaffirmed the well established rule that even during an open, public trial, a court may limit public access to sidebar and bench conferences. Cf. Tribe, supra note 18. The same jurisprudential considerations justifying the traditional sidebar rule support our Rules authorizing respondents' pre-trial suppression hearing orders. Here, as in Martin and Gurney, the orders of respondents carefully preserve the integrity of juror deliberations.
United States v. Cianfrani, 573 F.2d 835 (3d Cir. filed March 16, 1978), is not to the contrary. In Cianfrani, a panel of the third circuit modified part of a district court order closing a pre-trial hearing where the court determined the admissibility of intercepted statements and other evidence. After the pre-trial hearing, the defendant pleaded guilty. Thus, the panel was not presented with a case where such orders were necessary to preserve the defendant's right to a fair trial. Nor do we reach a conclusion contrary to CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975), where the sixth circuit invalidated an order forbidding all participants and witnesses from discussing with the press any aspect of a celebrated civil suit. This order was not entered to protect the constitutional rights of any party, and restricted access to all information concerning the case not public, rather than to specific information likely to impede a fair trial.
Further, all three trials have been completed, and the challenged orders may have expired. See Rule 323(g); note
[ 478 Pa. Page 51010]
supra and accompanying text. The statute in McMullan v. Wohlgemuth, supra, permanently prevented agents of the state from revealing to the press and the public names of any Pennsylvania welfare recipients. This statute, more restrictive than the orders here, was upheld by our Court and the Supreme Court of the United States against an access challenge. 415 U.S. 970, 94 S.Ct. 1547, 39 L.Ed.2d 863 (1974), dismissing for want of a substantial federal question, 453 Pa. 147, 308 A.2d 888 (1973). Similarly, in Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977), prison regulations permissibly denied newsmen the right to film executions for broadcast, depriving the public of certain information about these events. See Holden v. Minnesota, 137 U.S. 483, 11 S.Ct. 143, 34 L.Ed. 734 (1890) (upholding statute excluding reporters from scene of execution despite request by condemned man). The challenged orders imposed only a limitation on access to pre-trial suppression hearings, no greater than necessary to accomplish their purpose. Accord, United States v. Gurney, supra (upholding district court order limiting access to sidebar conferences).
Moreover, the Rules and orders here do not contain the inherent ambiguities and potential for chilling condemned in Nebraska Press. When the court closes a pre-trial suppression hearing, there are no injunctions forbidding publication or requiring the press to guess at what it may or may not print. Thus, the judgment of the newspaper editor remains unimpaired. Compare Nebraska Press Ass'n v. Stuart, supra (certain information arguably, but not certainly, included in prohibition against publication), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-57, 94 S.Ct. 2831, 2839, 41 L.Ed.2d 730 (1974) ("right of reply" statute impermissibly infringed on editor's discretion), with Pittsburgh Press Co. v. Pittsburgh Human Relations Commission, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (upholding prohibition against sex-classified advertising where discriminatory hiring was unlawful and editor could easily determine from face of advertisement if it was forbidden), and Pell v. Procunier, supra .
[ 478 Pa. Page 511]
C. No Other State Procedural Device Eliminates Prejudical Disclosure
Courts in the past have attempted to deal with prejudicial disclosure by lengthy voir dire of potential jurors, extensive continuances, burdensome sequestration, and cautionary instructions. Because these techniques do not eliminate prejudicial disclosure, but only may reduce some of its effects, all have proven unsatisfactory in many cases. Only one other method, change of venue, may in some cases put a case beyond the physical range of disclosure, but it may not be effective in cases of statewide or national attention, such as Commonwealth v. Boyle, or Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Further, pre-trial publicity may follow a case to its new venue.
Through voir dire, a court attempts to minimize the effect of pre-trial publicity by excluding from the jury those whom publicity has biased. But it cannot hope to eliminate all jurors who have been exposed to prejudicial information. In a highly publicized case, effective voir dire may distort the composition of the jury by screening out all those who take an active interest in news and public affairs. Neither a defendant nor the Commonwealth has an interest in seating such a jury. Other methods of dealing with prejudicial disclosure, such as sequestration, continuances, or cautionary instructions to the jury, do not realistically reduce premature prejudicial disclosure to which a jury is exposed.
Finally, many of the methods for eliminating the effects of prejudicial disclosure have other drawbacks. A continuance allows evidence to become stale and lengthens the period during which charges remain unresolved and the accused confined or held on bail pending disposition of the charges. Cf. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975) (restraints on liberty caused by prolonged detention). Changes of venue and sequestration pose further problems of administration for courts and inconvenience for all persons connected with a case.
A rule of general application directly meeting the problem of prejudicial disclosure is indeed an appropriate
[ 478 Pa. Page 512]
procedural device for the administration of a state court system of criminal justice. The Rules and orders challenged here meet that need by temporarily limiting access to pretrial proceedings most likely to involve prejudicial material which, if disclosed, could deprive the defendant of a fair trial and impose unneeded burdens on the public and the judicial system. The challenged orders protected the defendants from disclosure by attorneys and witnesses participating in suppression hearings under Rule 323. Such disclosures can be just as prejudicial as public exposure of the proceedings.*fn29 Short of gagging the press, which is presumed to be unconstitutional, Oklahoma Publishing Co. v. District Court, supra; Nebraska Press Ass'n v. Stuart, supra, or permanently depriving the press access to all information about a case, we believe our Rules and these orders are the most effective means of reducing premature prejudicial disclosure.
[ 478 Pa. Page 513]
This Court is fully aware of the great societal benefits our citizenry derives from access to all open court proceedings. Manifestly, that freedom has and continues to contribute significantly to the attainment of the effective administration of justice.
We must also be mindful of the Commonwealth's obligation to protect the right of the accused to a constitutionally required fair and speedy trial. Similarly, it must be recognized that the Commonwealth entertains a traditionally strong interest in protecting the fairness and integrity of criminal convictions obtained in its court system.
Adequate consideration must also be accorded the very pronounced public interest in having its system of criminal justice function so that jury trials are conducted promptly, fairly, and with finality. Due recognition must be given rules and procedures designed to achieve prompt and fair trials without the hazards of imposing on the state court system unnecessary and avoidable burdens such as retrials and extended trial delays. This is the true mission of the Rules of Criminal Procedure.
Experience has plainly demonstrated that premature disclosure of pre-trial suppression material creates a heavy and unnecessary burden upon the judicial process and adversely affects these public interests. Rules 323, 326 and 327 authorize a court in an appropriate case, if necessary, to limit or postpone access to pre-trial suppression hearing material so that the case may proceed in an orderly and timely fashion in an atmosphere free from the hazards and prejudice which may be engendered by the premature disclosure of suppression material, the admissibility of which is yet to be judicially determined. It must be concluded here that the public interest in avoiding unfair and delayed trials and retrials outweighed the postponement of petitioners' access.
We concluded on the record as presented by petitioners that respondents' orders, which limited access to pre-trial
[ 478 Pa. Page 514]
suppression hearings in murder cases which had received great public attention, did not deny petitioners any clear legal right. We therefore denied petitioners the state remedies they sought. See Central South Carolina Chapter v. Martin, supra; United States v. Gurney, supra; but see State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St.2d 457, 351 N.E.2d 127 (1976). These orders were entered pursuant to the Pennsylvania Rules of Criminal Procedure, a set of state rules designed to administer criminal justice fairly and efficiently. The orders were closely tailored to meet the problems of prejudicial disclosure resulting from suppression hearings.
Accordingly, special relief was properly denied petitioners and our orders are reinstated in conformity with this opinion.