No. 82-218 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

THE STATE OF MONTANA, ex rel., 

DANIEL PAUL SMITH, 

Relator, 

THE DISTRICT COURT OF THE EIGHTH 

JUDICIAL DISTRICT, CASCADE COUNTY, 

HONORABLE JOEL G. ROTH, Presiding Judge, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relator: 

Sandra K. Watts argued, Great Falls, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

For Amicus Curiae: 

Mike Meioy argued, Helena, Montana 

Submitted: SEP 1 * 

Decided: DEG " 8 

Filed: d - 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the 

Court. 

Defendant Daniel Smith applied to this Court for a writ of 

supervisory control after respondent, the Eighth Judicial 

District Court, Judge Roth presiding, denied defendant's motion 

to exclude public and press from a pretrial suppression hearing. 

By his application, defendant seeks alternative relief r either 

(1) an order reversing the District Court's decision and closing 

defendant's pretrial suppression hearing until the motion to 

suppress is denied or the case is complete; or (2) an order 

vacating the District Court's order and remanding the cause for a 

full evidentiary hearing on defendant's closure motion. 

Daniel Smith is charged with deliberate homicide in connection with the October 3, 1981, shooting death of Alfred LaPier, a 

Great Falls resident. Smith seeks suppression of certain items 

of evidence taken from his home and person on the date of his 

arrest. In his motion defendant challenges the lawfulness of his 

arrest, asserting a lack of probable cause, and the lawfulness of 

the search, asserting unreasonable search without warrant or consent. 

At the time set for hearing on the suppression motion defense 

counsel noted that members of the public and a Great Falls 

Tribune reporter were present in the courtroom. Counsel then 

made an oral motion to close the hearing to public and press on 

the grounds that defendant's fair trial rights would be substantially affected by dissemination of evidence that might be 

suppressed. Defense counsel argued to the trial court that under 

Great Falls Tribune v. District Court of the Eighth Judicial 

District (1980), - .- Mont . -- - - , 608 P.2d 116, 37 St.Rep. 502, 

and American Bar Association (ABA) Standards Relating to Fair 

Trial and Free Press, Section 3.1 (1968), the suppression hearing 

should be closed. The State said it had no objection to a public 

hearing. At this juncture, Judge Roth temporarily closed the 

hearing to the public and press to give defendant an opportunity 
to make an offer of proof. 

Defense counsel made no formal offer of proof. Instead, she 

developed her argument that closure was proper under the Great - .- 

Falls Tribune case, the 1968 ABA standard, and Gannett Co., Inc. - -. - - - 

v. DePasquale (1979), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 

608, wherein the United States Supreme Court held that: (1) members of the public have no constitutional right under the Sixth 

and Fourteenth Amendments to attend a pretrial hearing on a 

motion to suppress; and (2) the New York trial court gave proper 

deference to whatever right of access to criminal proceedings 

that might be guaranteed by the First and Fourteenth Amendments. 

Judge Roth denied defendant's motion. Ruling from the bench, 

Judge Roth first acknowledged that the Montana Supreme Court had 

neither squarely addressed the issue of closed suppression 

hearings nor adopted the 1968 ABA standard proffered by defense 

counsel, and secondly, concluded that defendant failed to make a 

substantial showing that dissemination of in£ ormation garnered at 

an open suppression hearing would prejudice defendant's right to 

a trial by an impartial jury. Judge Roth then continued the 

suppression hearing until such time defendant could apply to this 

Court for appropriate relief. 

Defendant filed an application for writ of supervisory 

control on June 23, 1982. The State filed its response on July 

6, 1982. Subsequently, the Great Falls Tribune sought, and was 

granted, leave to appear as amicus curiae. The amicus brief was 

received July 16, 1982, and jurisdiction was accepted July 29, 

1982. The Court, sitting en banc, heard oral argument September 

14, 1982. 

A twofold issue is presented to the Court: (1) whether the 

public and press can be excluded from a pretrial suppression 

hearing to ensure a defendant's right to a fair trial: and (2) if 

a pretrial suppression hearing can be closed, under what standard 

should closure be determined . 

When this Court last considered the interface between a 
defendant's constitutional right to a fair trial and the right of 

the public and press to observe criminal proceedings, there was 

but one United States Supreme Court decision that addressed similar concerns , Gannett Co., Inc. v. DePasquale, supra. The 

highest court of the land since has rendered two decisions that 

have further explored the contours of these particular rights. 

An understanding of Richmond Newspapers, Inc . v . Virginia ( 1980 ) , 

448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973, (plurality 

opinion), Globe Newspaper Co. v. Superior Ct. (1982), U.S. 

-- - - - . - , 102 S.Ct. 2613, 73 L.Ed.2d 248, and the relationship between - Gannett and Great --- Falls Tribune - is critical to resolution 

of the case at bar. 

In Gannett Co., Inc. v. DePasquale, supra, the United States 

Supreme Court upheld a New York trial court's decision to exclude 

the press and public from a pretrial hearing in a homicide prosecution. Gannett - interpreted Sixth and Fourteenth Amendment 

guarantees to a public trial to be personal to the accused, and 

not to inhere in the public any independent, enforceable right to 

attend criminal trials, or as in this instance, pretrial 

suppression hearings. 

Although the court discussed the strong societal interest in 

public trials and the common law rule of open criminal proceedings, 443 U.S. at 382-387, 99 S.Ct. at 2907-2309, 61 L.Ed.2d 

623-628, it expressly stopped short of deciding that the public 

and press had a right of access to a pretrial hearing under the 

First and Fourteenth Amendments. To the extent there may be a 

constitutional dimension to a right of access, noted the court, 

the trial court had properly assessed that the implicated right 

was outweighed by defendant's right to a fair trial. 443 U.S. at 

391-393, 99 S.Ct. at 2911, 2912, 61 L.Ed.2d 628-630. 

Six months after Gannett, this Court was presented with its 

first fair trial-public trial case. -- Great Falls - Tribune, supra, 

reversed a trial court's decision to exclude press and public 

from individual voir dire examinations of prospective jurors. We 
held that a trial court cannot restrict the right of any person 

to observe such proceedings unless exclusion of the public be "a 

strict and irreparable necessity to ensure defendant's right to a 

fair trial." 608 P.2d at 121, 37 St.Rep. at 507. 

Our decision was not based upon Gannettls articulated public 

interest in open criminal proceedings or any common law rule of 

public court proceeding but upon the "Right to Know" provision 

articulated in Article 11, Section 9, of the Montana 

Constitution. Subject to individual privacy demands or a 

defendant's right to a fair trial, we determined that any person, 

including a representative of the media, has a constitutional 

right to observe court proceedings. 608 P.2d 119, 37 St.Rep. at 

505, 506. 

Shortly after this Court adopted what was then characterized 

as a standard stricter than that of Gannett, 608 P.2d at 120, 37 

St.Rep. at 507, the United States Supreme Court addressed the 

question reserved in Gannett: - whether the First and Fourteenth 

Amendments guarantee the public and press a right of access to 

criminal trials. A right of access under the First Amendment and 

applied to the states by the Fourteenth Amendment, was recognized 

by seven Justices in Richmond Newspapers, Inc. v. Virginia 

(1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973. The case 

involved a state court order excluding the public and press from 

an entire trial on fair trial grounds. 

Mr. Chief Justice Burger, author of the plurality opinion in 

Richmond -- Newspapers, wrote that " [a] bsent an overriding interest 

articulated in findings, the trial of a criminal case must be 

open to the public." (footnote omitted) 448 U.S. at 581, 100 

S.Ct. at 2830, 65 L.Ed.2d at 992. That defendant's right to a 

fair trial would constitute such an interest was evident; that 

the trial court neglected to consider "various tested alternatives" to closure which would satisfy the constitutional demand 

of fairness was critical. 448 U.S. at 581, 100 S.Ct. at 2829, 

2830, 65 L.Ed.2d at 580, 581. 
In the United States Supreme Court's most recent decision 

regarding closure of criminal proceedings, a defendant s right to 

a fair trial was not the preeminent concern. Globe Newspaper Co. 

v. Superior Court, supra, involved a con£ lict between the 

public's right of access to criminal trials and a state statute 

mandating closure of trial during testimony of a minor rape victim. Justice Brennan's majority opinion definitively established 

that under the First and Fourteenth Amendments "the press and 

general public have a constitutional right of access to criminal 

trials," 102 S.Ct. at 2618, 73 L.Ed.2d at 255 "the denial [of 

which must be] necessitated by a compelling governmental 

interest, and [be] narrowly tailored to serve that interest." 

102 S.Ct. at 2620, 73 L.Ed.2d at 257. There, the interests 

asserted to justify closure were the protection of victims from 

disclosure of sensitive information and the encouragement of 

reporting and testifying by future victims. The Globe court was 

not persuaded that either interest justified mandatory closure; 

theref ore, it reversed the state court decision. 

From review of these cases three conclusions can be drawn. 

First, although both the federal and Montana constitution guarantee to members of the public and representatives of the press a 

right to observe criminal proceedings, the scope of the respective guarantees as yet is not commensurate. The United States 

Supreme Court has construed the First and Fourteenth Amendments 

to provide a right of access to criminal trials; a right of 

access to -- pretrial criminal proceedings has not been recognized. 

In contrast, the broad language contained in the -- Great Falls 

Tribune case, "that any person has the constitutional right to 

observe court proceedings," 608 P.2d at 119, 37 St.Rep. at 505, 

most certainly encompasses pretrial proceedings as well as the 

actual trial. 

Secondly, irrespective of the scope of access rights, the 

nature of the guarantee under the two constitutions is similar. 

Whether the basis for the press and public's right of access be 
the First and Fourteenth Amendments to the United State Constitution or the "Right to Know" provision of the Montana 

Constitution, the guarantee is not absolute. It can be properly 

circumscribed when the right or interest against which it competes is weighty or compelling. Doubtlessly, the right of a criminal defendant to a trial by an impartial jury is such a right. 

" 'Due process requires that the accused 

receive a trial by an impartial jury free from 

outside in£ luences . Given the pervasiveness 

of modern communications and the difficulty of 

effacing prejudicial publicity from the minds 

of the jurors, the trial courts must take 

-- 

strong measures - to-ensGiFiiTthiZthe -- 5iaiFncFXG -- - - -- -- - never weighed against the accused . . . I 11 --- - .- 

Nebraska Press Association v. Stuart (1976), 

427 U.S. 539, 553, 96 S.Ct. 2791, 2800, 49 

L.Ed.2d 683, 694, citing Sheppard v. Maxwell 

(1966), 384 U.S. 333, 362-63, 86 S.Ct. 1507, 

1522, 16 L.Ed.2d 600, 620, (emphasis added). 

Though concluding that it was not proper to close the proceeding in the Great -- 

Falls Tribune case, this Court intimated 

that in certain circumstances a defendant's right to a fair trial 

is paramount to the public's right to know. The opinion specifically noted that brief closure of individual voir dire examinations may be proper if during the course of voir dire it becomes 

necessary to allude to inadmissible evidence. 608 P.2d at 120, 

37 St.Rep. at 507. The decision also referred to a pretrial 

suppression hearing, the implication being that closure then may 

be appropriate to prevent dissemination of tainted evidence to 

the pool of prospective jurors. 

Finally, the question is open-ended as to precisely what the 

fair trial closure standard is under federal law. Globe 

Newspaper - Co., is important because it is the first majority opinion recognizing a federal right of access to criminal trials, 

but it provides little insight as to what standard the United 

States Supreme Court would employ in resolving a right of 

access/fair trial question in a pretrial context. The State's 

interest in shielding a minor rape victim from public scrutiny 

simply cannot be equated with a criminal defendant's absolute 

right to a fair trial. It is therefore unlikely that the 
"compelling state interest/narrowly tailored means" test would be 

applicable in a fair trial situation. 

What little that can be gleened from Richmond Newspapers, P 

Inc. is that the United States Supreme Court probably will 

expect trial judges to consider and dismiss less restrictive 

alternatives to closure before it will uphold the exclusion of 

public and press from a pretrial criminal proceeding. Although 

the Burger opinion implies that there are fewer suitable alternatives to closure in a pretrial context, 448 U.S. at 581, 100 

S.Ct. at 2830, 65 L.Ed.2d at 992, it does not follow that no 

alternatives to closure will ensure defendant's right to a fair 

trial in a pretrial proceeding. 

Rather than developing the - Great -- 

Falls -- Tribune standard of 

"strict and irreparable necessity, " a standard which emanates 

from federal cases whose continuing validity is questionable, 

this Court will follow the course suggested by the State herein. 

In so doing, we join the courts of Wyoming and Colorado in 

adopting, in toto, Standard 8-3.2 of the American Bar Association 

Standards for Criminal Justice ( 2nd .Ed. 1978 ) as the appropriate 

test to reconcile the competing interest of public access and 

trial fairness. This is a revised and more exacting standard 

than the one proposed by defendant. 

Based upon the Right to Know provision of the Montana 

Constitution and the right of access recognized under the First 

and Fourteenth Amendments to the United States Constitution, we 

hold that the public and press may be excluded from a pretrial 

suppression hearing only if dissemination of information acquired 

at the hearing would create a clear and present danger to the 

fairness of defendant's trial and no reasonable alternative means 

can be utilized to avoid the prejudicial effect of such informat ion. 

The Court encourages trial judges to seek first the voluntary 

cooperation of the news media representatives whenever possible. 

Upon being informed of the danger presented by dissemination of 
tainted evidence to the community at large as regards defendant's 

right to a fair trial, we would hope that representatives of the 

media would exercise prudent judgment and delay mass dissemination of potentially prejudicial information until the jury is 

impaneled or until an earlier time consistent with the fair administration of justice. The press is very aware of the vital 

function it serves in preserving the quality and integrity of the 

judicial process. 

"Instead of acquiring information about trials 

by firsthand observation or by word of mouth 

from those who attended, people now acquire it 

chiefly through the print and electronic 

media. In a sense, this validates the media 

claim of functioning as surrogates for the 

public. While media representatives enjoy the 

same right of access as the public, they of ten 

are provided special seating and priority of 

entry so that they may report what people in 

attendance have seen and heard. This 

'contribute[s] to public understanding of the 

rule of law and to comprehension of the functioning of the entire criminal justice sys tem 

... Nebraska Press Assn. v. Stuart, 427 

U.S., at 587, [96 S.Ct. at 2816, 49 L.Ed.2d at 

7141 (Brennan, J., concurring in judgment)." 

Richmond Newspapers, Inc. v. Virginia (1980 ), 

448 U.S. at 572, 573, 100 S.Ct. at 2825, 65 

L.Ed.2d at 987. 

As well, the press should be especially cognizant of the havoc it 

can wreak if it fulfills its role in a less than responsible 

manner. See, e.g. Sheppard v. Maxwell, supra; Estes v. Texas 

suitable agreement cannot be reached, the trial court must then 

proceed to hearing. 

In determining whether a "clear and present danger" exists 

the Court suggests that the following facts might be considered: 

(1) empirical evidence regarding the percentage of general population who read newspapers or who listen to other forms of media; 

(2) statistics regarding the percentage of media readers/ 

listeners who read or follow homicide or criminal stories; and 

( 3) expert psychological testimony regarding the capacity of an 

individual to disregard pretrial publicity, which might include 

tainted evidence, when making an objective determination of the 

facts upon completion of a trial . 
If the evidence adduced supports a finding that there is a 

clear and present danger to trial fairness, the court should then 

hear evidence and argument as to whether less restrictive alternatives would suffice to ensure a fair trial. The commentary to 

Standard 8-3.2 lists the following as alternatives to be 

considered : (1) continuance, (2) severance, (3) change of 

venue, (4) change of venire, (5) intensive voir dire, (6) additional preemptory challenges, (7) sequestration, and (8) admonitory instructions to the jury. In this case some of these 

alternatives are obviously not applicable. Here, before those 

alternatives be considered, this Court will require the trial 

court and parties to consider the efficacy of entering a presuppression hearing protective order which would forbid mention 

during the hearing of specific items of evidence sought to be 

suppressed. If, as in the instant case, the essence of the 

suppress ion hearing involves quest ions as to the law£ ulness of 

the arrest, or the lawfulness of the search, the suppression 

hearing can proceed without identifying the specific items 

seized. That would not be the case in a suppression hearing 

relating to the adequacy of description of items contained in a 

search warrant; in that situation, the crux of the suppression 

hearing is the nature or the identity of the particular items 

seized. 

Only if the trial court finds that there is a "clear and present danger" and that less restrictive alternatives, including a 

protective order, cannot protect defendant's right to a fair 

trial, should closure be ordered. The Court expects that findings of fact and conclusions of law will be entered to support 

a closure order. If the trial court decides that closure is 

not required, the public and press should have immediate access 

to the transcript of the closed hearing on the closure motion. 

If closure is ordered, complete records of the closure hearing 

and the subsequent suppression hearing should be made and remain 

sealed until completion of the trial or an earlier time con- 
sistent with trial fairness. We hereby vacate the District 

Court's decision and remand this cause for a hearing under the 

standard adopted by this opinion. 

Judge, sitting in place of Mr. 

Chief Justice Frank I. Haswell. ,' 

l~he updated version of the ABA's fair trial and free press standard states: 

"Pretrial proceedings : exclusion of public 

and sealing of records 

"Except as provided below, pretrial proceedings and their records shall be open to 

the public, including representatives of the 

news media. If at the pretrial proceeding 

testimony or evidence is adduced that is 

likely to threaten the fairness of a trial, 

the presiding officer shall advise those present of the danger and shall seek the voluntary cooperation of the news media in delaying 

dissemination of potentially prejudicial 

information by means of public communication 

until the impaneling of the jury or until an 

earlier time consistent with the fair administration of justice. The presiding officer 

may close a preliminary hearing, bail hearing, 

or any other pretrial proceeding, including a 

motion to suppress, and may seal the record 

only if: 

" (a) the dissemination of information from 

the pretrial proceeding and its record would 

create a clear and present danger to the fairness of the trial, and 
"(b) the prejudicial effect of such information on trial fairness cannot be avoided by 

any reasonable alternative means. 

"The defendant may move that all or part of 

the proceeding be closed to the public 

( including representatives of the news media), 

or, with the consent of the defendant, the 

presiding officer may take such action sua 

sponte or at the suggestion of the prosecution. Whenever under this rule all or part of 

any pretrial proceeding is held in chambers or 

otherwise closed to the public a complete 

record shall be kept and made available to the 

public following the completion of trial or 

earlier if consistent with trial fairness."