### No. 82-218 INTHE SUPREME COURT OF THE STATE OF

### MONTANA 1982

THE STATEOF MONTANA, ex rel., DANIELPAUL SMITH, Relator,

THEDISTRICTCOURTOF THEEIGHTH JUDICIAL DISTRICT,CASCADECOUNTY, HONORABLE JOELG. 

### ROTH,PresidingJudge, Respondents.

ORIGINAL PROCEEDING: Counselof Record: ForRelator: SandraK. 

### Watts argued, GreatFalls,Montana For Respondents: Hon. Mike Greely,Attorney General, Helena,Montana J. Fred Bourdeau,CountyAttorney,Great Falls,Montana ForAmicus Curiae: MikeMeioy argued,Helena,Montana

Submitted: 

### SEP1

# *

Decided: DEG "8 

### Filed: 

## d

# -1982Mr. Justice Frank B. Morrison, Jr., delivered theOpinion 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 reliefr 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 theDistrict Court's orderand remanding the cause fora full evidentiary hearing on defendant's closure motion. Daniel Smith is charged with deliberate homicide in connectionwith theOctober 3, 1981, shooting deathof 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. Inhismotion defendantchallenges the lawfulness of his arrest, assertinga lackof probable cause, and the lawfulnessof the search, assertingunreasonable search without warrant 

### or consent. Atthe 

### time set forhearing on the suppressionmotion 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 rightswould be substantially affected by dissemination of evidence that might be suppressed. Defense counsel argued to the trial court thatunder 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 Trialand FreePress, Section 3.1 (1968),the suppressionhearing shouldbe closed. The Statesaid 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 opportunitytomake an offerof proof. Defense counsel made no formal offerof proof. Instead, she developed her argument that closure 

### was proper under the Great -.- FallsTribune case, the 1968ABA standard, and Gannett Co., Inc. --. - -- v. DePasquale (1979), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, wherein theUnited StatesSupreme 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)theNew York trial court gave proper deference to whatever right of 

### access 

### to criminal proceedings that might be guaranteed by the Firstand Fourteenth Amendments. JudgeRoth 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 thatdefendant failed 

### to make a substantialshowing thatdissemination 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 suppressionhearing until such 

### timedefendant could apply

### to this Court forappropriaterelief. 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, sittingenbanc, 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 toensure a defendant's right

### to a fair

### trial: and (2)if

a pretrial suppressionhearing canbe closed, under what standard should closurebe determined

# . When this Court 

### last considered the interface between adefendant's constitutionalrightto a fairtrial and the rightof the public and press to observe criminal proceedings, there

### was but oneUnited StatesSupreme Court decision thataddressed 

### 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 relationshipbetween - Gannett and Great --- Falls Tribune - 

### is critical to resolution of the 

### case 

### atbar. InGannett Co., Inc. 

### v. DePasquale, supra, theUnited States SupremeCourt upheld aNewYork trial court's decision to exclude thepress and public from a pretrialhearing ina homicide prosecution. Gannett - interpreted Sixth and Fourteenth Amendment guarantees to a public trial to be personal 

### to the accused, and not to inhere inthe 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. 

### at382-387, 99 S.Ct. at2907-2309, 61L.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 fairtrial. 443 U.S. at 391-393, 99 S.Ct. at 2911, 2912, 61 L.Ed.2d 628-630. Six months afterGannett, this Court 

### was presented with 

### its firstfair trial-public trial 

### case. -- Great Falls- Tribune, supra, reversed a trial court's decision to exclude press and public from individual voirdireexaminations of prospectivejurors. Weheld 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 ensuredefendant'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 fairtrial, 

### we determined thatany 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 thatof 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 rightof accessunder the FirstAmendment and applied tothe statesby 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

anentiretrialon fairtrial 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 closurewhich would satisfythe constitutional demand of fairness 

### was critical. 448 U.S. 

### at 581, 100 S.Ct. 

### at 2829, 2830, 65L.Ed.2d at580, 581.In the United States Supreme Court's most recent decision regarding closureof criminal proceedings, a defendants right to

a fairtrial

### was not thepreeminent 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 vic

### tim. JusticeBrennan's majority opiniondefinitivelyestablished 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 testifyingby futurevictims. 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, althoughboth the federal and Montana constitutionguaran

### tee 

### 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 bethe Firstand Fourteenth Amendments to the United StateConstitution 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 trialby 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, 16L.Ed.2d 600, 620, (emphasisadded). Though concluding that it was not proper to close the proceeding in the Great Falls Tribune case, this Court intimated -- that incertaincircumstances a defendant's right toa fair

### trial is paramount 

### to the public's right toknow. 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 thepool of prospective jurors. Finally, the question is open-ended as to preciselywhat the fair trial closure standard is under federal law. Globe Newspaper - Co., is important because it is the firstmajority 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 ina fairtrial 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 ina pretrialproceeding. 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 willfollow the course suggested by the Stateherein. In so doing, 

### we join the courts of Wyoming and Colorado in adopting, intoto, Standard 8-3.2 of theAmerican BarAssociation StandardsforCriminalJustice (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 bydefendant. 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 suppressionhearing onlyif dissemination of information acquired at the hearing would create a clear and present danger to the fairnessof defendant's trial and no reasonable alternativemeans

can be utilized to avoid the prejudicial effect of such infor

### mat ion.

The Court encourages trial judges 

### to seek firstthe voluntary cooperation of the news media representativeswhenever possible. Upon being informed of the danger presented by dissemination oftainted evidence to the community atlarge as regardsdefendant's right 

### to a fairtrial, 

### we would hope that representativesof the media would exercise prudent judgment and delay 

### mass dissemination of potentially prejudicial information until the jury is impaneled 

### or until an

### earlier timeconsistentwith the fairadministration of justice. The press 

### is very 

### aware of the vital function it serves inpreserving 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 representativesenjoy the 

### same rightof access 

### as thepublic, they often 

### 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., at587, [96 S.Ct. at2816, 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 at987. Aswell, the press should be especiallycognizantof thehavoc 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 factsmight be considered: (1)empirical evidence regarding the percentage of general populationwho read newspapers orwho listento otherforms 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 factsupon completionof a trial

# .If the evidence adduced supports a finding that there is a clearand presentdanger 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 suppression 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 trialcourt findsthatthere is a "clearand 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 willbe 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 thisopinion.

Judge, sittinginplace of Mr. Chief Justice Frank I. Haswell. 

### ,'

l~he updated version of the ABA's fair

### trial and freepress standard states: "Pretrial proceedings: exclusion of public and sealingof 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 voluntarycooperationof thenews media indelaying 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 apreliminaryhearing, bailhearing, 

### 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 createa clearand presentdanger to the fairnessof the trial, and"(b) the prejudicial effect of such information on trial fairness cannot be avoided by anyreasonable alternativemeans. "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 thisrule all

### or part of anypretrialproceeding is held inchambers 

### or otherwise closed to the public a complete record shallbe kept and made available 

### to the public following the completion of trial 

### or earlier if consistent with trial fairness."