OCTOBER TERM, 1992
on petition for writ of certiorari to the supreme court of puerto rico
No. 92-949. Decided May 17, 1993
Puerto Rico Rule of Criminal Procedure 23(c) provides that preliminary hearings in criminal cases "shall be held privately" unless the defendant requests otherwise. Petitioners, a newspaper and reporter, challenged this provision, claiming that it violates the First Amendment for the same reasons that a similar California law was struck down in Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U. S. 1. There, this Court applied the experience and logic test of Globe Newspaper Co. v. Superior Court of County of Norfolk, 457 U. S. 596, to hold that preliminary criminal hearings have traditionally been public and that California's hearings were sufficiently like a trial that public access was essential to their proper functioning. The Puerto Rico Superior Court dismissed petitioners' suit, and the Commonwealth's Supreme Court affirmed, holding that several differences between California hearings and Rule 23(c) hearings made Press-Enterprise inapposite. Applying the Globe Newspaper tests anew, it concluded that closed hearings were compatible with the Commonwealth's unique history and traditions and that open hearings would prejudice defendants' rights to fair trials because of Puerto Rico's small size and dense population.
Held: Rule 23(c)'s privacy provision is unconstitutional. The decision below is irreconcilable with Press-Enterprise. Each of the features cited by Press-Enterprise in support of the finding that the California hearings were like a trial—e. g., hearings before a neutral magistrate and a defendant's right to cross-examine witnesses—is present here. The commonalities are not coincidental, as one source for Rule 23 was the California law. Rule 23(c)'s privacy provision is also more clearly suspect than California's law, which allowed hearings to be closed only upon a determination that there was a substantial likelihood of prejudice to the defendant. Contrary to the lower court's finding, the experience test of Globe Newspaper looks not to the particular practice of any one jurisdiction, but to the experience in that type or kind of hearing throughout the United States. The lower court's concern that publicity will prejudice defendants' fair trial rights is legitimate but can be addressed on a case-by-case basis.
Certiorari granted; 132 D. P. R. ---, reversed.
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