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STATE v. McNAUGHT1/17/1986
proceedings in order to permit the fair and impartial administration of justice. The courts> also generally agree that the constitutional right to a public trial does not entitle the press to broadcast, record, or photograph court proceedings, because the right to a public trial is primarily for the benefit of the defendant, and because the requirement of a public trial is satisfied when members of the press and public are permitted to attend a trial and to report what transpires.
The effect of television coverage of judicial proceedings on the due process right of criminal defendants was the subject of the decision in Chandler v. Florida, 449 U.S. 560. In Chandler, the United States Supreme Court held that the due process rights of an accused are not inherently denied by television trial coverage, and that no per se constitutional rule prohibits the states from permitting broadcast or photographic coverage of criminal trial proceedings. The court pointed out, however, that depending upon the circumstances under which such coverage takes place, a due process violation might result. The courts> have cautioned that there may be circumstances under which such coverage should be prohibited, particularly when it would have a substantial adverse effect on a trial participant. Whether broadcast or photographic coverage of court proceedings, particularly criminal trials, violates the constitutional rights of trial
participants, particularly criminal defendants, depends upon the circumstances under which such coverage takes place. Suggested relevant circumstances are the location of the broadcast or photographic equipment in the courtroom; the degree of distraction or disruption, if any, caused by their presence; and the effect of the presence and use of such equipment on the defendant's ability to present his case. There are many cases discussed in depth on this subject in an excellent annotation, Media Coverage of Court Proceedings, contained in 14 A.L.R. 4th 121. The leading case is Chandler v. Florida, mentioned heretofore.
The problem of media audio and television coverage of a preliminary hearing, as distinguished from a trial proceeding, is somewhat different, because a preliminary hearing is a pretrial proceeding for the determination of probable cause, and trial jurors are not present so as to be personally affected by the media coverage of the preliminary hearing. It is well recognized, however, that adverse publicity at a preliminary hearing may endanger the ability of a defendant to receive a fair trial in situations where prospective trial jurors read or hear the adverse publicity and are affected in their judgment should they later sit as jurors.
In Kansas City Star Co. v. Fossey, 230 Kan. 240, 630 P.2d 1176 (1981), this court discussed in depth the question as to when a district court may close a preliminary hearing, a bail hearing, or any other pretrial hearing, in order to avoid the prejudicial effect of media publicity on the fairness of a future trial. In that case, it was held that a trial court may close a preliminary hearing, jail hearing, or any other pretrial hearing, including a motion to suppress, and may close a record only if:
(1) The dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and
(2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.
The usual remedy for adverse pretrial publicity is a change of venue and this should be so whether the adverse publicity is in the form of a printed newspaper or television exposure. In Stat
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