For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Sullivan, J. Pashman, J., concurring. Schreiber, J., concurring. Justice Mountain joins in this opinion. Mountain, Pashman and Schreiber, J.J., concurring in the result.
The two appeals herein, State v. Allen and State v. Hughes and Thompson, although they involve separate and unrelated murder trials, present a common legal issue of fundamental and far-reaching importance to the news media and to the administration of justice.
In State v. Allen the trial court, following the selection of an unsequestered jury*fn1 and acting at the request of both the prosecutor and defense counsel, ordered:
that publication of inculpatory testimony taken outside the presence of the jury at evidentiary hearings held to determine the admissibility of said testimony which after hearing the court determines it is inadmissible at trial, if any, is prohibited until the jury is sequestered to deliberate its verdict.
The subject matter of the order was an alleged confession by Allen which the State proposed to offer at trial and to which defendant intended to object as inadmissible.
Where the admissibility of State's evidence such as a defendant's confession is challenged at trial, New Jersey follows the usual practice of conducting a hearing, the jury having been removed from the courtroom, at which the issue of admissibility is determined by the trial court. If the proffered evidence is ruled to be admissible, the jury is recalled and the evidence presented to it. If ruled inadmissible, however, the State is barred from using such evidence as part of its case.
The order in question sought to guard against the possibility that although the trial court might rule that the confession was inadmissible the members of the non-sequestered jury, to defendant's prejudice, might nonetheless read or learn about it through news media reports of what transpired at the evidentiary hearing.
Allen was one of three persons charged with armed robbery and felony murder alleged to have been committed in Somerset County. The incident had resulted in massive pretrial publicity. Separate trials were ordered for each defendant. Allen apparently was the second defendant tried. His trial began in December, 1975, lasted six weeks, and ended in a mistrial when the jury was unable to reach a unanimous verdict. His retrial commenced in February 1976. Prior to entry of the protective order the trial court stated that it was aware of the possible alternatives of sequestration and "carefully worded precautionary instructions" to the jury. It rejected sequestration of the jury for the entire four to six weeks of trial as an unduly harsh and unwarranted burden on jurors which would greatly increase the difficulties in jury selection. It doubted the effectiveness of instructions should the jury learn of inadmissible evidence through press reports. Accordingly, these alternatives were rejected and the order heretofore referred to was entered.
The trial court then proceeded to hold a hearing on defendant's alleged confession, ruled that it was admissible and allowed it to be presented to the jury, the result being that, as a practical matter, the order was inoperative as to
anything that took place at trial. Ultimately, Allen was found guilty by jury verdict.
In the meantime, however, two newspapers, whose reporters were attending the trial, sought review of the trial court's order but their application for leave to appeal was denied by the Appellate Division. The same motion was then presented to this Court and was granted, 70 N.J. 153 (1976), our order being entered some two days after the jury verdict.
State v. Hughes and Thompson has a similar factual pattern. Hughes, Thompson and the latter's brother were charged with murder and robbery in Mercer County. The brother was tried separately in 1972 and convicted of first degree murder. Hughes and Thompson were also convicted in 1973 following a lengthy jury trial. However, their convictions were reversed by the Appellate Division because of prejudicial remarks by the prosecutor during summation.
Defendants' retrial began on March 1, 1976 with an unsequestered jury. During the course of the trial, and on March 5, 1976, a restraining order was entered prohibiting a newspaper reporter present at the trial from reporting anything which took place in the courtroom out of the jury's presence. The order was to remain in effect until after the jury had returned a verdict.
Entry of the order grew out of the following circumstances. The State had called as a witness a person who had previously given a written statement which placed Hughes and Thompson at the scene of the crime. A doubt arose as to the testimonial capacity of the witness. It was also indicated that the witness might not testify in accordance with the written statement previously given. Because of the foregoing, the prosecutor requested that the witness be examined out of the presence of the jury. The request was granted and at the same time the trial court, sua sponte, orally charged a newspaper reporter, who was present in the courtroom, not to report anything that transpired out of the presence of the jury until after the jury verdict.
Following a midday recess the witness was recalled to the stand, the jury having been excused. Prior to taking any testimony the trial court, sua sponte, entered a second restrictive order addressed this time to two other newspaper reporters who were in the courtroom. This second order, also orally entered, directed these reporters not to report on what transpired in the courtroom out of the presence of the jury until after the jury verdict. The witness then testified and, inter alia, recanted her written statement. At the close of the hearing the trial court found that she was "high" when she appeared in court, being under the influence of methadone, and that she was incompetent to testify.
On March 5, counsel for the Trenton Times Corporation, two of whose reporters were subject to the restrictive orders, made an in-chambers application to the trial court to have such orders vacated on First Amendment grounds. The application was denied, as was an application to a single judge of the Appellate Division for an emergency stay of the trial court's orders pending disposition of a motion for leave to appeal.
On March 8, 1976 the case was given to the jury. That same day this Court, by order of the Chief Justice, dated March 9 but effective as of March 8, issued a stay of such orders and thereafter, on its own motion, certified and granted Trenton Times' motion for leave to appeal then pending in the Appellate Division. 70 N.J. 153 (1976). On March 9, 1976, the trial court declared a mistrial and discharged the jury which had been unable to agree on a verdict.
Preliminarily, we reject any notion that the appeals before us should be treated as moot and dismissed. The issues are of great public importance and are bound to recur time and again unless and until this Court by its decision determines what a trial court may or may not do regarding news media coverage of a public trial. Nebraska Press Asso. v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683, 690
(1976). It would be paradoxical to say that the issues had to be viable in the particular case at the time this Court heard or decided them when, by the nature of the judicial proceedings, the trial in question would invariably be concluded before this Court had an opportunity to hear the matter. We therefore determine that the issues are not moot and proceed to the merits.
The narrow issue before us is more easily decided than certain broader questions implicated. In each case the trial court entered orders which restrained the press for fixed periods of time from reporting matters which were to take place in open court. These orders were clearly illegal. Proceedings which take place in open court are matters of public record and the news media has an absolute right to report thereon.
The landmark case of Nebraska Press Asso. v. Stuart, supra, involved the validity of a court order in a murder case which restrained the news media, until a trial jury was empaneled, from publishing or broadcasting accounts of confessions or admissions made by the accused or facts strongly implicating him. The order applied not only to matters adduced at preliminary open court hearings, but also to information gained from other sources.
Insofar as open court hearings were involved, Chief Justice Burger, writing for the United States Supreme Court, held that the press may not be proscribed from reporting events that take place in open court and that once a public hearing is held, reporting of what transpires there may not be restrained. 427 U.S. at 568, 96 S. Ct. at 2807, 49 L. Ed. 2d at 703. The Chief Justice went on to discuss the validity of prior restraints as applied to information obtained from sources other than public court proceedings. He noted that the guarantees of freedom of expression under the First Amendment are not absolute and that the Supreme Court has consistently rejected the proposition that a prior restraint can never be employed. He cautioned though that the barriers to prior restraint remain high and the presumption against
its use continues intact. The record before the court was then reviewed and it was concluded that, to the extent the order prohibited publication based on information obtained from "other sources," the heavy burden imposed as a condition to securing a prior restraint had not been met. 427 U.S. at 570, 96 S. Ct. at 2808, 49 L. Ed. 2d at 704.
That part of the Nebraska decision which struck down the prior restraint against publication of news reports of the case based on information obtained from "other sources" is not directly applicable to the problem before us as the orders herein relate only to the reporting of portions of trial proceedings held in open court. These orders, as heretofore noted, were clearly illegal under the Nebraska declaration that there is an absolute right or privilege to report events that transpire at a public court hearing.
In the recent case of Oklahoma Publishing Co. v. District Court In and For Oklahoma County, Oklahoma, 430 U.S. 308, 97 S. Ct. 1045, 51 L. Ed. 2d 355 (decided March 7, 1977), the United States Supreme Court reaffirmed the same declaration by holding that the news media could not be restrained from publishing the name or picture of a juvenile where the name had been learned during court proceedings which were open to the public, including the press, and the photograph taken without objection as the juvenile was being escorted from the courthouse. In overturning the restraining order, the Supreme Court, citing Nebraska, said that the juvenile's name and picture had been publicly revealed and that the news media could not be restrained from publishing this information.
However, this poses the problem as to what a trial court can do to protect a defendant's Sixth Amendment right to a fair trial where, in a trial in which the jury is not sequestered, an issue is presented as to the admissibility of a defendant's confession or other material damaging to the defendant. As noted, the procedure is to remove the jury from the courtroom and then hold a hearing to determine if the evidence
should be admitted. Usually these evidentiary hearings are held in open court, and, under the holding of Nebraska, supra, the press has an absolute right to report such open court hearings.
In New Jersey there has been in force since 1972 a Statement of Principles and Guidelines for Reporting of Criminal Procedures approved and adopted by this Court and the New Jersey Press Association. Guideline 5 of this Statement reads as follows:
The Press is free to report any judicial public proceeding, except that any evidence excluded by the court at a hearing outside of the jury's presence shall not be published until after the trial is concluded. The court has the right to hold a portion of the trial outside the presence of a jury. A complete record of the proceedings from which the public has been excluded shall be kept and made available to the public, following completion of the trial, unless otherwise ordered by the court.
Adherence by the press to Guideline 5, supra, would obviate the particular problem here presented. However, the Statement of Principles has no binding effect. Its compulsion is moral and not legal and some members of the press have not always respected it. In one of the cases before us, State v. Hughes and Thompson, the trial court gave as a reason for entering the restraining order its experience of the previous week when the Trenton Times, during a criminal trial, had published a highly prejudicial article about the case requiring the court, at substantial expense to the county and its taxpayers, to sequester the jury for the balance of the trial.
One obvious solution is sequestration of the jury. However, this has its disadvantages. In a protracted trial the cost of providing for a sequestered jury and sheriff's officers can be enormous.*fn2 Hardship on the jurors must also
be considered with the consequent difficulty in jury selection. Further, many defendants are wary of jury sequestration for the reason that the jurors will resent it and hold a defendant responsible for the sequestration order and the resultant inconvenience and hardship to them. Trial judges are under a mandate to avoid jury sequestration except in compelling circumstances. R. 1:8-6.
Another alternative is clear and definitive instructions to the jury not to read or listen to media reports of the trial and to decide the issues only on evidence presented in open court. Realistically, however, in many cases it would be difficult to conclude that a jury could avoid receiving such reports or that such instructions, no matter how forceful, would overcome prejudice to a defendant resulting from the jury learning of a confession or other evidence which the trial court had ruled was inadmissible.
A third alternative that has been suggested is for the trial court, with the consent of the defendant, to hold the evidentiary hearing in camera. See American Bar Ass'n., Standards for Criminal Justice, Fair Trial and Free Press, § 3.5(d) (Approved Draft 1968). By this means the press (as well as the public), being excluded from attendance at such hearing, would be unable to report thereon. However, this poses the further question as to whether, despite a defendant's consent, there would be an unwarranted "interfering with press rights to news sources," if such a hearing were held in camera with the press and public excluded. Nebraska, supra, 427 U.S. at 564, 96 S. Ct. at 2805, 49 L. Ed. 2d at 701, n. 8. In Nebraska, the Supreme Court noted the question in the context of the possible closing of pretrial proceedings but, since it was not confronted with this issue, did not pass upon it. Ibid. Justice Brennan in his opinion concurring in the judgment, also noted the same question in terms of the effect of the "public trial" clause of the Sixth Amendment but expressed no views thereon as the parties agreed that the question was not before the Court. 427 U.S. at 576, 96 S. Ct. at
2811, 49 L. Ed. 2d at 707, n. 3. However, in Branzburg v. Hayes, 408 U.S. 665, 684-685, 92 S. Ct. 2646, 2658, 33 L. Ed. 2d 626, 641 (1972), the majority opinion states that:
In the appeals before us, the trial courts did not order that the evidentiary hearings be held in camera. The legality and constitutionality of such procedure, therefore, is not directly in issue and has not been addressed by the parties to any substantial extent.
We have in the past referred to the right of a trial court to hold a proceeding in camera. See In re National Broadcasting Company, 64 N.J. 476, 479 (1974). It is not uncommon in a criminal trial for the court and counsel to hold side bar conferences out of the hearing of the jury as to matters which might be prejudicial for the jury to hear. These conferences are recorded and become part of the trial record. Nonetheless, as a practical matter, neither the press nor the public are privy to what transpires.
In State v. Jackson, 43 N.J. 148 (1964), a murder case, the trial court had denied without hearing the defendants' motion for bail made shortly before trial, on the ground that publicity which might result from the bail hearing would pose a danger to the defendants' right to a fair trial. The trial court rejected the notion that the bail hearing could be held in camera. This Court indicated otherwise, and, after observing that the trial court entertained too limited a view of its powers, suggested that the motion could have been heard in camera if defendants so requested. 43 N.J. at 163-164.
Such a procedure, as applied to an evidentiary hearing, would insure that a non-sequestered jury would not be exposed to prejudicial information and at the same time
would avoid any direct restraint on the news media. Cf. Smith v. State, 317 A.2d 20, 24 (Sup. Ct. Del. 1974).*fn3
Against this course must be balanced the concept that court proceedings should be subject to public scrutiny and that the public has a right to expect that criminal trials will be conducted in open court. Wiggins, The Public's Right to Public Trial, 19 F.R.D. 25 (1955). It has been suggested that this may be a constitutional requirement.
From the standpoint of the press, the in camera procedure, while not a direct restraint, arguably achieves the same result by more subtle means and becomes in effect a prior restraint on the news-gathering ability of the press. See Branzburg v. Hayes, supra, 408 U.S. at 707, 92 S. Ct. at 2669, 33 L. Ed. 2d at 655.
None of these issues has been adequately briefed or argued, not being necessary to resolution of the present matter. Consequently we feel it would be inappropriate to try to resolve them in the framework of the present appeals.
It should be emphasized that in a criminal case a trial court will seldom be confronted with a situation where consideration must be given to use of the in camera procedure. An evidentiary hearing in the day-to-day criminal trial rarely generates sufficient news interest to warrant press coverage. Often the press is not even present. Many criminal trials are concluded within a period of time that would make academic any question of possible prejudice through news accounts. Frequently the question of the voluntariness of a statement given by a defendant or the admissibility of evidence can be heard and decided without the necessity of disclosing the text of the statement or the nature of the evidence. Nor should the willingness of the news media to exercise self restraint be overlooked. "A responsible press has always been regarded as the handmaiden
of effective judicial administration, especially in the criminal field." Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S. Ct. 1507, 16 L. Ed. 2d 600, 613 (1966).
If a criminal trial is newsworthy and attracts widespread press coverage, the trial court should seriously weigh the need for sequestration of the jury. At the least, the jury should be forcefully instructed not to read or listen to news accounts of the trial proceedings and emphatically reminded of its sworn duty to decide the issues only on evidence presented in open court.
Assuming that an in camera evidentiary hearing is not contrary to First Amendment principles or any other relevant constitutional concept, it should be used with circumspection. The trial court should first resort to other alternatives unless it concludes that they are not feasible or proper under the circumstances. Only then, and upon a clear showing of a serious and imminent threat to the integrity of the trial, and with the express consent of the defendant, should consideration be given to holding the evidentiary hearing in camera.
These appeals do not involve any question of possible prejudice to a defendant's right to a fair trial resulting from pretrial publicity. In such circumstances, the trial court has available additional means such as (a) adjournment of the trial to allow public attention to subside, (b) change of venue, (c) foreign jury, (d) searching questioning of prospective jurors to screen out those infected by pretrial publicity and, (e) emphatic and clear instructions to the jury to decide the issues only on evidence presented in open court. See Sheppard v. Maxwell, supra, 384 U.S. at 357-362, 86 S. Ct. at 1519-1522, 16 L. Ed. 2d at 617-620; Nebraska, supra, 427 U.S. at 563, 96 S. Ct. at 2805, 49 L. Ed. 2d at 700.
Moreover, the trial court has the power to exercise sufficient control over the prosecutor, counsel for defense, the accused, witnesses and court staff to prevent the release or disclosure of improper information by these sources. Sheppard v. Maxwell, supra. See, American Bar Ass'n., Standards
for Criminal Justice, Fair Trial and Free Press, supra, § 2.1.
The orders under review restraining the reporting of proceedings in open court are illegal and void for the reasons heretofore stated and are hereby vacated.
PASHMAN, J., concurring. The issues which these cases raise are of fundamental importance. They provide a matrix for considering the interplay between two of our most basic constitutional guarantees -- free speech and fair trial -- which are also, as Mr. Justice Black correctly noted, "two of the most cherished policies of our civilization." Bridges v. California, 314 U.S. 252, 260, 62 S. Ct. 190, 192, 86 L. Ed. 192, 201 (1941).
As the majority concludes, these appeals should not be dismissed as moot. Whether or not they are technically moot,*fn1 the issues are appropriate for resolution for two reasons. First, they fall within the category of cases which are "capable of repetition, yet evading review." See, e.g., Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976); Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 713, 35 L. Ed. 2d 147, 161 (1973). Since these orders are intended and are necessary only for the ...