Defendants filed a motion for a pretrial evidentiary hearing to determine the audibility of recordings of conversations and the accuracy of transcripts made from such recordings, pursuant to State v. Driver , 38 N.J. 255 (1962), and State v. Zicarelli , 122 N.J. Super. 225, 238-240 (App. Div. 1973), certif. den. 63 N.J. 252 (1973), cert. den. 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973). Defense counsel and the State of New Jersey moved to exclude the news media from the courtroom. The news media entered an appearance to oppose the request. Should the news media be excluded from the courtroom during the pretrial hearing?
Defendants were charged in a 33-count indictment with the offenses of embracery, perjury, obstruction of justice, misconduct in office and conspiracy. The selection of the jury was to commence immediately following the pretrial hearing, which was estimated to take about one week.
One or more of the four defendants is a well known political figure in the Camden-Burlington County area
where the alleged offenses occurred. The indictment was returned by the statewide grand jury and the venue of the trial is in Mercer County.
Defendants allege that their right to a trial by an impartial jury could be adversely affected by the publication of information on the recordings, which include statements that are inadmissible in evidence, nonrelevant comments of the personal affairs of one or more of the defendants, unkind comments about one or more public figures who are not parties to this litigation, and statements which may be generally categorized as indecent. It is anticipated that the case will have considerable public interest and will be extensively covered by the news media.
The issue presented is the recurring conflict between the right of a defendant in a criminal case to a fair trial by an impartial jury, as granted by the Sixth Amendment to the United States Constitution, versus the right of the news media to unfettered access and dissemination of everything that occurs in a courtroom, as protected by the First Amendment. Both are freedoms which, Mr. Justice Black in an oft-quoted observation said, are "two of the most cherished policies of our civilization, and it would be a trying task to choose between them." Bridges v. California , 314 U.S. 252, 260, 62 S. Ct. 190, 192, 86 L. Ed. 192, 201, 159 A.L.R. 1346 (1941).
The legality of the exclusion of the news media during court proceedings was recently discussed in depth in State v. Allen , 73 N.J. 132 (1977), which involved orders that arose during the trials of two unrelated murder cases. During one trial the court entered an order barring the "publication of inculpatory testimony taken outside the presence of the jury at evidentiary hearings held to determine the admissibility of said testimony." Id. at 135. During the second trial the court held a hearing out of the presence of the jury to ascertain the testimonial capacity of a witness, and ordered the news media "not to report anything
that transpired out of the presence of the jury until after the jury verdict." Id. at 137.
Both orders were held to be illegal.
Here, unlike Allen, we are dealing with a pretrial evidentiary hearing. This is significant because when dealing with a pretrial motion a trial court has available many more options to protect a defendant's right to a fair trial. Allen directed that before issuing a restraining order or excluding the media from the courtroom, the "trial court should first resort to other alternatives unless it concludes that they are not feasible or proper under the circumstances." Id. at 145. For instance, the ...