On Behalf of Openness in Court

Six years ago the U.S. Supreme Court ruled that criminal trials must be conducted in the open. Society’s interest in the fair administration of justice requires that the public be allowed to observe trials even when the defendant, for whatever reason, wants to be tried in private. “The right to attend criminal trials is implicit in the guarantees of the First Amendment,” the court said in Richmond Newspapers vs. Virginia. “Without the freedom to attend such trials . . . important aspects of freedom of speech and of the press could be eviscerated.”

Four years later the court broadened its ruling to include the selection of jurors, which must also be conducted in open court. On Monday the justices broadened this right of access still further, ruling that preliminary hearings like those in California may not be closed to the public unless there is an overarching reason to do so.

This is an important and long-overdue ruling--especially in California, where preliminary hearings have become a standard part of the criminal-justice process. Preliminary hearings have largely replaced the grand jury in this state for determining whether there is sufficient evidence to require an accused person to stand trial. Since California’s preliminary hearings look like trials and are conducted like trials, the court found, the public has a right of access to them that cannot easily be abridged.

Furthermore, Chief Justice Warren E. Burger, writing for the court, held that the risk of publicity does not, in and of itself, provide sufficient reason to close a preliminary hearing. In other words, the court correctly rejected the conventional wisdom that publicity is always detrimental to a fair trial. Trial judges who have been quick to slap gag orders on participants in criminal trials should note that the Supreme Court is not convinced that they are needed.

Monday’s ruling stemmed from the 41-day preliminary hearing in the case of Robert Diaz, the nurse who was subsequently convicted of murdering 12 hospital patients by injecting them with drugs. The Riverside Press-Enterprise challenged that secrecy and carried the case to the U.S. Supreme Court, just as it had pressed the earlier case that resulted in open jury selection. The paper deserves the thanks of everyone for its tireless efforts.

A constitutional right to attend preliminary hearings increases the pressure to open grand-jury proceedings as well. They are conducted under different rules of evidence and procedure, but the principle is the same. Openness in government is almost always preferable to secrecy.