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STATE v. McNAUGHT1/17/1986
e Allen wrote a letter to defense counsel explaining his reasons for allowing photographs and audio reproduction at the preliminary hearing. Judge Allen stated in his letter as follows:
"The basis of your objection is the fact that potential jurors may see broadcasts and therefore photographing and audio reproduction at the preliminary hearing stage would be highly inflammatory and prejudicial to the defendant, particularly since this case has been the subject of numerous newspaper articles and television and radio station stories already.
"Criminal cases are commonly the subject of pretrial publicity and they always have been so the basis of your objection addresses a matter which is familiar to our legal system and satisfactory methods have been devised to meet the problem without denying the news media of their privilege to report the news through the opportunity to voir dire jurors and, whenever necessary, change venue.
"In this particular case, it is my opinion that the traditional methods devised by the law for handling this problem are appropriate to this case and that it would not be a proper exercise of the court's discretion to deny the news media its privilege of photographing and audio reproduction of the preliminary hearing in this case."
Simply stated, defendant maintains that the photographing
and audio reproduction of the preliminary hearing was inherently corruptive to potential jurors and thus had the effect of preventing a fair and impartial trial later. A determination of this issue requires us to consider the background and development of news media coverage of court proceedings in Kansas. In 1937, the American Bar Association adopted Canon 35 of the Canons of Judicial Ethics prohibiting broadcast and photographic coverage of court proceedings. For a discussion of the historical background of Canon 35 see Chandler v. Florida, 449 U.S. 560, 66 L.Ed.2d 740, 101 S.Ct. 802 (1981). In 1952, Canon 35 was amended to prohibit television coverage of judicial proceedings. The State of Colorado was the first state to amend Canon 35 to permit broadcast or photographic coverage of the judicial proceedings in the state courts>. The prohibition in Canon 35 continued in effect when the American Bar Association replaced the Canons of Judicial Ethics in 1972 with the Code of Judicial Conduct. The Kansas Supreme Court, in Rule No. 601 of the Rules Relating to Judicial Conduct, adopted Canon 3A(7) (225 Kan. cxxi), which prohibited televising and taking pictures of the courtroom and the area adjacent thereto, subject to stated exceptions not involved here.
In 1978, the American Bar Association's Committee on Fair Trial — Free Press proposed that television, radio, and photographic coverage of court proceedings be permitted whenever the trial judge determined that such coverage would be unobtrusive and would not distract the attention of trial participants. However, the proposal was not adopted by the ABA House of Delegates. Since that time, the federal courts> have continued to adhere to the prohibitions against the taking of photographs in the courtroom during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the courtroom.
In 1981, the Supreme Court of Kansas amended the Code of Judicial Conduct under Supreme Court Rule 601, exempting the Supreme Court from the prohibition. Canon 3A(7)(d) (228 Kan. cxxxi). By order dated January 6, 1981, the court adopted a new Supreme Court Rule No. 1.07 (235 Kan. lvii), which permitted the use of audio tape recorders to record any portion of a hearing before the Supreme Court. Such recordings were to be closely superv
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