Mar 14, 2017

U.S. Supreme Court case with ruling on First Amendment and preliminary hearings being public

Before court today, I had done some research and mentioned this case to my media colleagues.

Press can file a writ in response to defense motion to close the preliminary hearing.

U.S. Supreme Court ruled in favor of the First Amendment in this case.


The Supreme Court held that the First Amendment right of public access applies to preliminary hearings. Closed preliminary hearings are only permissible when specific findings on the record show that closure is essential. The California court should have asked whether there was a substantial probability that the accused’s right to a fair trial would be prejudiced, and whether any reasonable alternatives to closure could protect that right.

California Penal Code 868 is what was cited by Judge Dale Reinholtsen and what the defense is using in the Jon Goldberg 2017 preliminary to ask for a closed courtroom.

"868. The examination shall be open and public. However, upon the request of the defendant and a finding by the magistrate that exclusion of the public is necessary in order to protect the defendant s right to a fair and impartial trial, the magistrate shall exclude from the examination every person except the clerk, court reporter and bailiff, the prosecutor and his or her counsel, the Attorney General, the district attorney of the county, the investigating officer, the officer having custody of a prisoner witness while the prisoner is testifying, the defendant and his or her counsel, the officer having the defendant in custody, and a person chosen by the prosecuting witness who is not himself or herself a witness but who is present to provide the prosecuting witness moral support, provided that the person so chosen shall not discuss prior to or during the preliminary examination the testimony of the prosecuting witness with any person, other than the prosecuting witness, who is a witness in the examination. Upon motion of the prosecution, members of the alleged victim s family shall be entitled to be present and seated during the examination. The court shall grant the motion unless the magistrate finds that the exclusion is necessary to protect the defendant s right to a fair and impartial trial, or unless information provided by the defendant or noticed by the court establishes that there is a reasonable likelihood that the attendance of members of the alleged victim s family poses a risk of affecting the content of the testimony of the victim or any other witness. The court shall admonish members of the alleged victim s family who are present and seated during the examination not to discuss any testimony with family members, witnesses, or the public. Nothing in this section shall affect the exclusion of witnesses as provided in Section 867 of the Penal Code.

For purposes of this section, members of the alleged victim s family shall include the alleged victim s spouse, parents, legal guardian, children, or siblings."

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