NCJ Number
58038
Journal
Nebraska Law Review Volume: 57 Issue: 2 Dated: (1978) Pages: 442-522
Date Published
1978
Length
80 pages
Annotation
THERE HAS BEEN AN INCREASING TENDENCY FOR COURTS TO CLOSE THEMSELVES TO THE PRESS IN ORDER TO PROTECT DEFENDANTS' RIGHTS TO A FAIR TRIAL. THIS CRITIQUE FOCUSES ON PRETRIAL HEARINGS TO PROTECT PRESS RIGHTS.
Abstract
MOST DISCUSSIONS OF FREEDOM OF THE PRESS AND DEFENDANT'S RIGHTS TO A FAIR AND SPEEDY TRIAL OVERSIMPLIFY THE ISSUE AND THEREBY PRESENT A THREAT TO THE SUBSTANTIVE RIGHTS OF THE MEDIA. THESE OVERSIMPLIFICATIONS IGNORE THE MEDIA'S RIGHT TO DUE PROCESS OF LAW. THIS STUDY DISCUSSES THE SCOPE AND APPLICATION OF DUE PROCESS RIGHTS PERTAINING TO THE PRESS AS A PRIVATE INTEREST AND THE SUBSTANTIVE CONSTITUTIONAL RIGHTS OF FREEDOM OF THE PRESS, ESPECIALLY FROM PRIOR RESTRAINT, THE PUBLIC RIGHT TO A PUBLIC TRIAL AND PRETRIAL HEARINGS, AND THE RIGHTS TO GATHER AND RECEIVE INFORMATION. IT IS CONCLUDED THAT THE BURDEN OF PROOF RESTS ON THOSE WHO WOULD CLOSE THE COURTS TO THE PRESS TO DEMONSTRATE IN PRETRIAL HEARINGS, EVEN INFORMAL ONES, WITH THE PRESS AS AN INTERESTED PARTY, THAT THERE ARE NO LESS RESTRICTIVE ALTERNATIVES, THAT OPEN PROCEEDINGS WOULD RESULT IN DENIAL OF DEFENDANT'S RIGHTS, AND THAT CLOSING THE PROCEEDINGS WOULD PROTECT DEFENDANT'S RIGHTS. THE LESS RESRICTIVE ALTERNATIVES THAT ARE DISCUSSED RANGE FROM VOIR DIRE SCREENING OF PROSPECTIVE JURORS TO DECLARING A MISTRIAL. IT IS EMPHASIZED THAT THESE CONCLUSIONS DO NOT ARISE MERELY FROM CONSIDERATIONS OF WHAT MIGHT BE BEST FOR THE PUBLIC OR THE DEFENDANT, BUT FROM THE REQUIREMENTS OF LAW. (TWB)