Secrecy, Suspicion and Injustice

For a century in California the law required the closing of a preliminary hearing at the request of a defendant. But in 1982 the Legislature modified the statute. Since then preliminary hearings have had to remain open unless the judge has found that exclusion of the public was “necessary” to protect the defendant’s right to a fair trial.

In its first interpretation recently of the 1982 amendment to the state Penal Code, the California Supreme Court conceded that the Legislature intended that open preliminary hearings should be the “rule rather than the exception.” But in a 6-1 majority opinion, written by Justice Allen Broussard, the court made it likely that the closure of these proceedings will in fact become the rule and not the exception.

The case before the court arose when the Riverside Press-Enterprise challenged the closure of a preliminary hearing for a male nurse since convicted of murdering 12 hospital patients by giving them overdoses of a heart medication. In upholding the trial judge’s decision, the court concluded that a judge must close a hearing on finding a “reasonable likelihood” that open proceedings would impair a defendant’s right to a fair trial.

The reasonable-likelihood standard--as the lone dissenting justice, Malcolm M. Lucas, pointed out--establishes a lower burden of proof of possible prejudice than required by the 1982 law. “Reasonable likelihood,” Lucas said, “is not equivalent to a showing of necessity. In my view the majority’s new standard improperly ignores the statutory language.”

The 1982 law, which does bar automatic closing of these proceedings at the request of a defendant, is an important reform, but we believe that all preliminary hearings should be open to the public, except in rare circumstances. Although they are not trials, they are a significant part of the judicial process. The argument for secret proceedings rests on the notion that public access to preliminary hearings inevitably prejudices a fair trial. To the contrary, secrecy breeds suspicion of the legal system, while an open criminal-justice system, from arrest through trial, engenders confidence and is the best assurance of justice.