Law & the Media in Texas — Fair Trial Open & In Progress

Fair Trial Issues

Trials: Open or Closed?

In 1979 the U.S. Supreme Court decided 5 to 4 that judges have broad discretion to close pretrial hearings. The case was Gannett Co. v. DePasquale, 99 S. Ct. 2898 (1979), and the result was to throw courts and the news media into confusion.

Did this mean that all trials could be closed? Newspapers were up in arms. In one year, the Reporters Committee for Freedom of the Press recorded 260 instances of attempts by judges to close criminal proceedings.

In 1980 the U.S. Supreme Court ruled 7 to 1 that the public has a constitutional right to attend criminal trials even when defendants want to exclude them. This was Richmond Newspapers, Inc. v. Commonwealth of Virginia, 100 S. Ct. 2814 (1980).

The justices wrote seven opinions. Three joined in one, written by Chief Justice Warren E. Burger, that said, “Absent any overriding interest . . . the trial of a criminal case must be open to the public.”

Burger also said that the constitutional right to attend criminal trials is not absolute and that the trial judge may “impose reasonable limitations on access to a trial.”

Trials in Progress

The revision of the Code of Criminal Procedure in 1965 made possible the separation of trial juries, meaning they could go home for the night while the trial is in progress.

The code provides for separation in felony cases at the discretion of the judge until the court gives its charge to the jury. The jury may even be allowed to disperse during deliberation if the court gives its permission and if each party consents.

However, in instances where separation is not allowed, the code stipulates that any person who makes known to the jury which party did not consent to separation “shall be punished for contempt of court.”

In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict.

In any case in which the jury is permitted to separate, judges must give jurors “instructions with regard to their conduct as jurors when so separated.”

This presents an additional responsibility for reporters covering such trials. Even though the judge may instruct the jurors not to read the newspapers, listen to the radio or watch television, the news media must be alert to the possibility of using prejudicial information.