We granted certiorari to decide whether the guarantees of open public proceedings in criminal trials cover proceedings for the voir dire examination of potential jurors.
Albert Greenwood Brown, Jr., was tried and convicted of the rape and murder of a teenage girl, and sentenced to death in California Superior Court. Before the voir dire examination of prospective jurors began, petitioner, Press-Enterprise Co., moved that the voir dire be open to the public and the press. Petitioner contended that the public had an absolute right to attend the trial, and asserted that the trial commenced with the voir dire proceedings. The State opposed petitioner's motion, arguing that if the press were present, juror responses would lack the candor necessary to assure a fair trial.
The trial judge agreed and permitted petitioner to attend only the "general voir dire." He stated that counsel would conduct the "individual voir dire with regard to death qualifications and any other special areas that counsel may feel some problem with regard to . . . in private. . . ." App. 93. The voir dire consumed six weeks and all but approximately three days was closed to the public.
After the jury was empaneled, petitioner moved the trial court to release a complete transcript of the voir dire proceedings. At oral argument on the motion, the trial judge
Counsel for Brown argued that release of the transcript would violate the jurors' right of privacy. The prosecutor agreed, adding that the prospective jurors had answered questions under an "implied promise of confidentiality." Id., at 111. The court denied petitioner's motion, concluding as follows:
After Brown had been convicted and sentenced to death, petitioner again applied for release of the transcript. In denying this application, the judge stated:
Petitioner then sought in the California Court of Appeal a writ of mandate to compel the Superior Court to release the
The trial of a criminal case places the factfinding function in a jury of 12 unless by statute or consent the jury is fixed at a lesser number or a jury is waived. The process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980), the plurality opinion summarized the evolution of the criminal trial as we know it today and concluded that "at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open." A review of the historical evidence is also helpful for present purposes. It reveals that, since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown.
The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before "moots," a town meeting kind of body such as the local court of the hundred or the county court.
Although there appear to be few contemporary accounts of the process of jury selection of that day,
If we accept this account it appears that beginning in the 16th century, jurors were selected in public.
As the trial began, the judge and the accused were present. Before calling jurors, the judge "telleth the cause of their comming, and [thereby] giveth a good lesson to the people." Id., at 96-97 (emphasis added). The indictment was then read; if the accused pleaded not guilty, the jurors were called forward, one by one, at which time the defendant was allowed to make his challenges. Id., at 98. Smith makes clear that the entire trial proceeded "openly, that not only the xii [12 jurors], but the Judges, the parties and as many [others] as be present may heare." Id., at 79 (emphasis added).
This open process gave assurance to those not attending trials that others were able to observe the proceedings and enhanced public confidence. The presence of bystanders served yet another purpose according to Blackstone. If challenges kept a sufficient number of qualified jurors from appearing at the trial, "either party may pray a tales." 3 W. Blackstone Commentaries *364; see also M. Hale, The History of the Common Law of England 342 (6th ed. 1820). A "tales" was the balance necessary to supply the deficiency.
For present purposes, how we allocate the "right" to openness as between the accused and the public, or whether we view it as a component inherent in the system benefiting both, is not crucial. No right ranks higher than the right of the accused to a fair trial. But the primacy of the accused's right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.
The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Richmond Newspapers, Inc. v. Virginia, 448 U. S., at 569-571.
This openness has what is sometimes described as a "community therapeutic value." Id., at 570. Criminal acts, especially
"People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." Richmond Newspapers, supra, at 572. Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.
The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. We now turn to whether the presumption of openness has been rebutted in this case.
Although three days of voir dire in this case were open to the public, six weeks of the proceedings were closed, and media requests for the transcript were denied.
The jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reasons for keeping out of the public domain.
To preserve fairness and at the same time protect legitimate privacy, a trial judge must at all times maintain control of the process of jury selection and should inform the array of prospective jurors, once the general nature of sensitive questions is made known to them, that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record.
By requiring the prospective juror to make an affirmative request, the trial judge can ensure that there is in fact a valid basis for a belief that disclosure infringes a significant interest in privacy. This process will minimize the risk of unnecessary closure. The exercise of sound discretion by the court may lead to excusing such a person from jury service. When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror's valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.
Assuming that some jurors had protectible privacy interests in some of their answers, the trial judge provided no explanation as to why his broad order denying access to information at the voir dire was not limited to information that was actually sensitive and deserving of privacy protection. Nor did he consider whether he could disclose the substance of the sensitive answers while preserving the anonymity of the jurors involved.
Thus not only was there a failure to articulate findings with the requisite specificity but there was also a failure to consider alternatives to closure and to total suppression of the transcript. The trial judge should seal only such parts of the transcript as necessary to preserve the anonymity of the individuals sought to be protected.
The judgment of the Court of Appeal is vacated, and the case is remanded for proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN, concurring.
I agree that in this case the trial judge erred in closing the voir dire proceeding and in refusing to release a transcript of that proceeding without appropriate specific findings that nondisclosure was necessitated by a compelling governmental interest and was narrowly tailored to serve that interest. I write separately to emphasize my understanding
Certainly, a juror has a valid interest in not being required to disclose to all the world highly personal or embarrassing information simply because he is called to do his public duty. We need not decide, however, whether a juror, called upon to answer questions posed to him in court during voir dire, has a legitimate expectation, rising to the status of a privacy right, that he will not have to answer those questions. See Nixon v. Administrator of General Services, 433 U.S. 425, 458 (1977); Whalen v. Roe, 429 U.S. 589, 599 (1977).
Nor do we need to rely on a privacy right to decide this case. No juror is now before the Court seeking to vindicate that right. Even assuming the existence of a juror's privacy right, the trial court erred in failing to articulate specific findings justifying the closure of the voir dire and the refusal to release the transcript. More important, as the trial court recognized, the defendant has an interest in protecting juror privacy in order to encourage honest answers to the voir dire questions.
With these qualifications, I join the Court's opinion. I agree that the privacy interest of a juror is a legitimate consideration to be weighed by a trial court in determining whether the public may be denied access to portions of a voir dire proceeding or to a transcript of that proceeding. I put off to another day consideration of whether and under what conditions that interest rises to the level of a constitutional right.
JUSTICE STEVENS, concurring.
The constitutional protection for the right of access that the Court upholds today is found in the First Amendment,
The focus commanded by the First Amendment makes it appropriate to emphasize the fact that the underpinning of our holding today is not simply the interest in effective judicial administration; the First Amendment's concerns are much broader. The "common core purpose of assuring freedom of communication on matters relating to the functioning of government," Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980) (plurality opinion), that underlies the decision of cases of this kind provides protection to all members of the public "from abridgment of their rights of access to information about the operation of their government, including the Judicial Branch." Id., at 584 (STEVENS, J., concurring). See also id., at 587-588 (BRENNAN, J., concurring in judgment). AS JUSTICE POWELL has written:
This principle was endorsed by the Court in Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
It follows that a claim to access cannot succeed unless access makes a positive contribution to this process of self-governance. Here, public access cannot help but improve public understanding of the voir dire process, thereby enabling critical examination of its workings to take place. It is therefore, I believe, entirely appropriate for the Court to identify the public interest in avoiding the kind of lengthy voir dire proceeding that is at issue in this case, ante, at 510, n. 9. Surely such proceedings should not be hidden from public view.
JUSTICE MARSHALL, concurring in the judgment.
I agree with the result reached by the Court but write separately to stress that the constitutional rights of the public and press to access to all aspects of criminal trials are not diminished in cases in which "deeply personal matters" are likely to be elicited in voir dire proceedings. Ante, at 511. Indeed, the policies underlying those rights, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-573 (1980) (plurality opinion); id., at 593-597 (BRENNAN, J., concurring in judgment), are most severely jeopardized when courts conceal from the public sensitive information that bears upon the ability of jurors impartially to weigh the evidence presented to them. Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982) ("Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process . . ."). Therefore, prior to issuing a closure order, a trial court should be obliged to show that the order in question constitutes the least restrictive means available for protecting compelling state interests. In those cases where a closure order is imposed, the constitutionally preferable method for reconciling the First Amendment interests of the public and the press with the legitimate privacy interests of jurors and the interests of defendants in fair trials is to redact transcripts in such a way as to preserve the anonymity of jurors while disclosing the substance of their responses. Ante, at 513. Only in the most extraordinary
Also, I feel compelled to note my strong disagreement with the Court's gratuitous comments concerning the length of voir dire proceedings in this and other cases. The Court's opinion states:
The question whether the voir dire proceedings in this case extended for too long a period is not before this Court. Not surprisingly, therefore, we know few of the facts that would be required to venture a confident ruling on that question. Some of the circumstances of which we are aware, however, cast considerable doubt on the majority's judgment. Albert Greenwood Brown, Jr., was accused of an interracial sexual attack and murder.
Similarly, in the absence of facts not presently available to the Court, it is wrong to assume, as does the majority opinion, that a voir dire proceeding as elaborate and time-consuming as that which occurred in this case "in and of itself undermines public confidence in the courts and the legal profession." Ibid. After all, this was a capital case involving an interracial sexual attack that was bound to arouse a heightened emotional response from the affected community. In a situation of this sort, the public's response to the use of unusually elaborate procedures to protect the rights of the accused might well be, not lessened confidence in the courts, but rather heightened respect for the judiciary's unshakeable commitment to the ideal of due process even for persons accused of the most serious of crimes.
Furthermore, in the absence of a claim that the length of voir dire proceedings violates federal law, this Court strays beyond its proper role when it lectures state courts on how best to structure such proceedings. We simply lack the authority to forbid state courts to devote what we might consider an inordinate amount of time to ensuring that a jury is unbiased.
For the foregoing reasons, I agree with the judgment but cannot join the opinion of the Court.
Assuming that Hovey was the basis for the trial court's order, it is unclear that the interests Hovey sought to protect could have justified respondent's closure order. In Hovey, the California Supreme Court focused on studies that indicated that jurors were prejudiced by the answers of other jurors during voir dire. There was no indication that the presence of the public or press affected jurors. The California Supreme Court in fact stated that its decision would not "in any way affect the open nature of a trial." 28 Cal. 3d, at 80-81, 616 P. 2d, at 1354.
On other hand, courts have exercised their discretion to prevent unnecessarily intrusive voir dire questions. See Sprouce v. Commonwealth, 2 Va. Cas. 375 (1823) ("[In England] . . . the juror is not obliged to answer any question tending to fix infamy, or disgrace, on him . . ."); Ryder v. State, 100 Ga. 528, 535, 28 S. E. 246, 248 (1897) ("Certainly, neither the court nor counsel should ask any question which would involve a breach of the juror's privilege to refuse to answer on the ground that so doing would tend to incriminate, or otherwise disgrace, him"). More recent cases have relied, however, not on juror privacy, but on the trial judge's discretion to limit voir dire to protect juror safety or to prevent irrelevant questioning. See, e. g., United States v. Barnes, 604 F.2d 121, 140 (CA2 1979), cert. denied, 446 U.S. 907 (1980); United States v. Taylor, 562 F.2d 1345, 1355 (CA2), cert. denied sub nom. Salley v. United States, 432 U.S. 909 (1977).
It is, of course, well settled that the Fourteenth Amendment makes this provision applicable to the abridgment of speech by the States, including state judges. See, e. g., Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976).
"The preservation of a full and free flow of information to the general public has long been recognized as a core objective of the First Amendment to the Constitution. . . .
"In addition to safeguarding the right of one individual to receive what another elects to communicate, the First Amendment serves an essential societal function. Our system of self-government assumes the existence of an informed citizenry. As Madison wrote:
" `A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' 9 Writings of James Madison 103 (G. Hunt ed. 1910).
"It is not sufficient, therefore, that the channels of communication be free of governmental restraints. Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance."