# Press-Enterprise Company v. Superior Court of California for the County of Riverside/Opinion of the Court

[p. 3] CHIEF JUSTICE BURGER delivered the opinion of the Court.
We 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.

## I

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. The complaint alleged that Diaz, a nurse, murdered 12 patients by administering massive doses of the heart drug lidocaine. The preliminary hearing on the complaint commenced on July 6, 1982. Diaz moved to exclude the public from the proceedings under Cal. Penal Code Ann. § 868 (West 1985), which requires such proceedings to be [p. 4] open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." 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." App. 22a.
The preliminary hearing continued for 41 days. 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. Diaz did not introduce any evidence, but his counsel subjected most of the witnesses to vigorous cross-examination. Diaz was held to answer on all charges. At the conclusion of the hearing, petitioner Press-Enterprise [p. 5] Company asked that the transcript of the proceedings be released. The Magistrate refused and sealed the record.
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. Diaz opposed the motion, contending that release of the transcript would result in prejudicial pretrial publicity. 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," but that there was, nonetheless, "a reasonable likelihood that release of all or any part of the transcripts might prejudice a defendant's right to a fair and impartial trial." Id., at 60a, 61a.
Petitioner then filed a peremptory writ of mandate with the Court of Appeal. That court originally denied the writ but, after being so ordered by the California Supreme Court, set the matter for a heading. Meanwhile, Diaz waived his right to a jury trial and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ of mandate.
The California Supreme Court thereafter denied petitioner's peremptory writ of mandate, holding that there is no general First Amendment right of access to preliminary hearings. 37 Cal.3d 772, 691 P.2d 1026 (1984). The court reasoned that the right of access to criminal proceedings recognized in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), extended only to actual criminal trials. 37 Cal.3d, at 776, 691 P.2d at 1028. Furthermore, the reasons that had been asserted for closing the proceedings in Press-Enterprise I and Globe—the interests of witnesses and other third parties—were not the same as the right asserted in this case—the defendant's right to a fair and impartial trial by a jury uninfluenced by news accounts.
Having found no general First Amendment right of access, the court then considered the circumstances in which the [p. 6] closure would be proper under the California access statute, Cal. Penal Code Ann. § 868 (West 1985). Under the statute, the court reasoned, if the defendant establishes a "reasonable likelihood of substantial prejudice" the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice. 37 Cal.3d, at 782, 691 P.2d, at 1032.
We granted certiorari. 474 U.S. 899 (1985). We reverse.

## II

We must first consider whether we have jurisdiction under Article III, § 2, of the Constitution. In this Court, petitioner challenges the Superior Court's original refusal to release the transcript of the preliminary heading. As noted above, the specific relief petitioner seeks has already been granted—the transcript of the preliminary heading was released after Diaz waived his right to a jury trial. However, as in Globe Newspaper, supra, at 603, and Gannett Co. v. DePasquale, 443 U.S. 368, 377-378 (1979), this controversy is "'capable of repetition, yet evading review'". It can reasonably be assumed that petitioner will be subjected to a similar closure order and, because criminal proceedings are typically of short duration, such an order will likely evade review. Globe and Gannett, therefore, require the conclusion that this case is not moot. Accordingly, we turn to the merits.

## III

It is important to identify precisely what the California Supreme Court decided:
   "[W]e conclude that the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial. Penal code section 868 makes clear that the primary right is a right to a fair trial and that the public's right of access must give way when there is conflict. 37 Cal.3d, at 781, 691 P.2d, at 1032.
[p. 7] It is difficult to disagree in the abstract with that court's analysis balancing the defendant's right to a fair trial against the public right of access. It is also important to remember that these interests are not necessarily inconsistent. Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.
The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness. Only recently, in Waller v. Georgia, 467 U.S. 39 (1984), for example, we considered whether the defendant's Sixth Amendment right to an open trial prevented the closure of a suppression hearing over the defendant's objection. We noted that the First Amendment right of access would in most instances attach to such proceedings and that "the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." Id., at 46. When the defendant objects to the closure of a suppression hearing, therefore, the hearing must be open unless the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced. Id., at 47.
Here, unlike Waller, the right asserted is not the defendant's Sixth Amendment right to a public trial since the defendant requested a closed preliminary hearing. Instead, the right asserted here is that of the public under the First Amendment. See Gannett, supra, at 397 (POWELL, J., concurring). The California Supreme Court concluded that the First Amendment was not implicated because the proceeding was not a criminal trial, but a preliminary hearing. However, the First Amendment question cannot be resulted solely on the label we give the event, i.e., "trial" or otherwise, particularly where the preliminary hearing functions much like a full-scale trial.
[p. 8] In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a "'tradition of accessibility implies the favorable judgment of experience,'" Globe Newspaper, 457 U.S., at 605 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (BRENNAN, J., concurring in judgment)), we have considered whether the place and process have historically been open to the press and general public.
In Press-Enterprise I, for example, we observed that "since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown." 464 U.S., at 505. In Richmond Newspapers, we reviewed some of the early history of England's open trials from the day when a trial was much like a "town meeting." In the days before the Norman Conquest, criminal cases were brought before "moots," a collection of the freemen in the community. The public trial, "one of the essential qualities of a court of justice" in England, was recognized early on in the Colonies. There were risks, of course, inherent in such a "town meeting" trial—the risk that it might become a gathering moved by emotions of passions growing from the nature of a crime; a "lynch mob" ambience is hardly conducive to calm, reasoned decision-making based on evidence. Plainly the modern trial with jurors open to interrogation for possible bias is a far cry from the "town meeting trial" of ancient English practice. Yet even our modern procedural protections have their origin in the ancient common-law principle which provided, not for closed proceedings, but rather for rules of conduct for those who attend trials. Richmond Newspapers, supra, at 567.
Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question. Globe Newspaper, supra, at 606. Although many governmental processes operate best under public scrutiny, it takes little [p. 9] imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that "the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 (1979). Other proceedings plainly require public access. In Press-Enterprise I, we summarized the holdings of prior cases, noting that openness in criminal trials, including the selection of jurors, "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." 464 U.S., at 501.
These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. But even when a right of access attaches, it is not absolute. Globe Newspaper Co. v. Superior Court, supra, at 606. While open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity. In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access. In Press-Enterprise I we stated:
   "[T]he presumption 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. The interest is to be articulated along with findings specific enough that a reviewing court can [p. 10] determine whether the closure order was properly entered." 464 U.S. at 510.

## IV
### A

The considerations that led the Court to apply the First Amendment right of access to criminal trials in Richmond Newspapers and Globe, and the selection of jurors in Press-Enterprise I, lead us to conclude that the right of access applies to preliminary hearings as conducted in California.
First, there has been a tradition of accessibility to preliminary hearings of the type conducted in California. Although grand jury proceedings have traditionally been closed to the public and the accused, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Long ago, in the celebrated trial of Aaron Burr for treason, for example, with Chief Justice Marshall sitting as trial judge, the probable cause hearing was held in the Hall of the House of Delegates in Virginia, the courtroom being too small to accommodate the crush of interested citizens. United States v. Burr, 25 F.Cas. 1 (No. 14,962) (CC Va. 1807). From Burr until the present day, the near-uniform practice of state and federal courts has been to conduct preliminary hearings in open court. As we noted in Gannett, [p. 11] several States following the original New York Field Code of Criminal Procedure published in 1850 have allowed preliminary hearings to be closed on the motion of the accused. 443 U.S., at 390-391. But even in these States the proceedings are presumptively open to the public and are closed only for cause shown. Open preliminary hearings, therefore, have been accorded "'the favorable judgment of experience.'" Globe, 457 U.S., at 605.
The second question is whether public access to preliminary hearings as they are conducted in California plays a particularly significant positive role in the actual functioning of the process. We have already determined in [p. 12] Richmond Newspapers, Globe, and Press-Enterprise I that public access to criminal trials and the selection of jurors is essential to the proper functioning of the criminal justice system. California preliminary hearings are sufficiently like a trial to justify the same conclusion.
In California, to bring a felon to trial, the prosecutor has a choice of securing a grand jury indictment or a finding of probable cause following a preliminary hearing. Even when the accused has been indicted by a grand jury, however, he has an absolute right to an elaborate preliminary hearing before a neutral magistrate. Hawkins v. Superior Court, 22 Cal. 3d 584, 586 P.2d 918 (1978). The accused has the right to personally appear at the hearing, to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence. Cal. Penal Code Ann. §§ 859-866 (West 1985), § 1538.5 (West Supp. 1986). If the magistrate determines that probable cause exists, the accused is bound over for trial; such a finding leads to a guilty plea in the majority of cases.
It is true that unlike a criminal trial, the California preliminary hearing cannot result in the conviction of the accused and the adjudication is before a magistrate or other judicial officer without a jury. But these features, standing alone, do not make public access any less essential to the proper functioning of the proceedings in the overall criminal justice process. Because of its extensive scope, the preliminary hearing is often the final and most important step in the criminal proceeding. See Waller v. Georgia, 467 U.S., at 46-47. As the California Supreme Court stated in San Jose Mercury News v. Municipal Court, 30 Cal. 3d 498, 511, 638 P.2d 655, 663 (1982), the preliminary hearing in many cases provides "the sole occasion for public observation of the criminal justice system." See also Richmond Newspapers, 448 U.S., at 572.
Similarly, the absence of a jury, long recognized as "an inestimable safeguard against the corrupt or overzealous [p. 13] prosecutor and against the compliant, biased, or eccentric judge," Duncan v. Louisiana, 391 U.S. 145, 156 (1968), makes the importance of public access to a preliminary hearing even more significant. "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." Richmond Newspapers, 448 U.S., at 572.
Denying the transcript of a 41-day preliminary hearing would frustrate what we have characterized as the "community therapeutic value" of openness. Id., at 570. Criminal acts, especially certain violent crimes, provoke public concern, outrage, and hostility. "When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions." Press-Enterprise I, 464 U.S., at 509. See also H. Weihofen, The Urge to Punish 130-131 (1956); T. Reik, The Compulsion to Confess (1959). In sum:
   "The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." Press-Enterprise I, supra, at 508 (emphasis in original).
We therefore conclude that the qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as they are conducted in California.

### B

Since a qualified First Amendment right of access attaches to preliminary hearings in California under Cal. Penal Code Ann. § 858 et seq. (West 1985), the proceedings cannot be closed unless specific, on the record findings are made demonstrating that "closure is essential to preserve higher values [p. 14] and is narrowly tailored to serve that interest." Press-Enterprise I, supra, at 510. See also Globe Newspaper, 457 U.S., at 606-607. If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trail will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. See Press-Enterprise I, supra; Richmond Newspapers, supra, at 581.
The California Supreme Court, interpreting its access statute, concluded that "the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice." 37 Cal. 3d, at 781, 691 P.2d, at 1032. As the court itself acknowledged, the "reasonable likelihood" test places a lesser burden on the defendant than the "substantial probability" test which we hold is called for by the First Amendment. See ibid.; see also id., at 783, 691 P.2d, at 1033 (Lucas, J., concurring and dissenting). Moreover, that court failed to consider whether alternatives short of complete closure would have protected the interests of the accused.
In Gannett we observed:
   "Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, 378 U.S. 368. Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial." 443 U.S., at 378.
[p. 15] But this risk of prejudice does not automatically justify refusing public access to hearings on every motion to suppress. Through voir dire, cumbersome as it is in some circumstances, a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict. And even if closure were justified for the hearings on a motion to suppress, closure of an entire 41-day proceeding would rarely be warranted. The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of that right. And any limitation must be "narrowly tailored to serve that interest." Press-Enterprise I, supra, at 510.
The standard applied by the California Supreme Court failed to consider the First Amendment right of access to criminal proceedings. Accordingly, the judgment of the California Supreme Court is reversed.
It is so ordered.

## Notes

* ↑ Section 868, as amended in 1982, provides in full: "The examination shall be open in public. However, upon the request of the defendant and a finding by the magistrate that exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial, the magistrate shall exclude from the examination every person except the clerk, court reporter and bailiff, the prosecutor and his or her counsel, the Attorney General, the district attorney of the county, the investigating officer, the officer having custody of a prisoner witness while the witness is testifying, the defendant and his or her counsel, the officer having the defendant in custody and a person chosen by the prosecuting witness who is not himself or herself a witness but who is present to provide the prosecuting witness moral support, provided that the person so chosen shall not discuss prior to or during the preliminary examination the testimony of the prosecuting witness with any person, other than the prosecuting witness, who is a witness in the examination. Nothing in this section shall affect the right to exclude witnesses as provided in Section 687 of the Penal Code." Before 1982, the statute gave the defendant the unqualified right to close the proceedings. After the California Supreme Court rejected a First Amendment attack on the old statute in San Jose Mercury-News v. Superior Court, 30 Cal.3d 498, 639 P.2d 655 (1982), the California Legislature amended the statute to include the present requirement that the hearing be closed only upon a finding by the magistrate that closure is "necessary in order to protect the defendant's right to a fair and impartial trial."
* ↑ Similarly, the interests of those other than the accused may be implicated. The protection of victims of sex crimes from the trauma and embarrassment of public scrutiny may justify closing certain aspects of a criminal proceeding. See Globe Newspaper Co. v. Superior Court, 457 U.S., at 607-610.
* ↑ The vast majority of States considering the issue have concluded that the same tradition of accessibility that applies to criminal trials applies to preliminary proceedings. See. e.g., Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983); Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla. 1982), R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578-579, 292 S.E.2d 815, 819 (1982); Gannett Pacific Corp. v. Richardson, 59 Haw. 224, 580 P.2d 49, 56 (1978); State ex. rel. Post-Tribune Publishing Co. v. Porter Superior Court, 274 Ind. 408, 412 N.E.2d 748 (1980); Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 752 (Ky.App. 1980); Great Falls Tribune v. District Court, 186 Mont. 433, 607 P.2d 116 (1980); Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710, 406 A.2d 137 (1979); State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983); Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 439, 399 N.E.2d 518, 523 (1979); Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986); State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St.2d 457, 351 N.E.2d 127 (1976); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 503, 387 A.2d 425, 434 (1978); Kearns-Tribune Corp. v. Lewes, 685 P.2d 515 (Utah 1984); Herald Assn., Inc. v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (1980); Federated Publications, Inc. v. Kurtz, 94 Wash.2d 51, 615 P.2d 440 (1980); State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980); Williams v. Stafford, 589 P.2d 322 (Wyo. 1979). Cf. In re Midland Publishing, 420 Mich. 148, 173, 362 N.W.2d 580, 593 (1984) (proceedings leading to a person's indictment have not been open to the public). Other courts have noted that some pretrial proceedings have no historical counterpart, but, given the importance of the pretrial proceedings to the criminal trial, the traditional right of access should still apply. See, e.g., Iowa Freedom of Information Council v. Wifvat, 328 N.W.2d 920 (Iowa 1983); Minneapolis Star and Tribune Co. v. Kammeyer, 341 N.W.2d 550 (Minn. 1983); Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d, 915 (1981).
* ↑ See State v. McKenna, 78 Idaho 647, 309 P.2d 206 (1957); Davis v. Sheriff, 93 Nev. 511, 569 P.2d 402 (1977). Although Arizona, Iowa, Montana, North Dakota, Pennsylvania, and Utah have closure statutes based on the Field Code, see Gannett, 443 U.S., at 391, in each of these States the Supreme Court has found either a common-law or state constitutional right of the public to attend pretrial proceedings. See Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966); Iowa Freedom of Information Council v. Wifvat, supra; Great Falls Tribune v. District Court, supra; Minot Daily News v. Holum, supra; Commonwealth v Hayes, 489 Pa. 419, 414 A.2d 318 (1980); Kearns-Tribune Corp. v. Lewis, supra.