U.S. 596 (1982); State v. Martini, 160 N.J. 248, 302 n.4
(1999) (Handler, J. dissenting).
- The only exception will arise in instances where
the trial court is clearly satisfied that if the pretrial
proceeding is conducted in open court a realistic
likelihood of prejudice to a fair trial by an impartial jury
exists as a result of adverse publicity, and that such
prejudice cannot be overcome by resort to various
methods relating to the selection of jurors. State v. Feaster,
156 N.J. at 50-51; State v. Williams, 93 N.J. at 63.
Pervasive pretrial publicity, though, does not necessarily
preclude the likelihood of an impartial jury. See State v.
Harvey, 151 N.J. at 214; State v. Engel, 249 N.J. Super.
336, 371-72 (App. Div.), certif. denied, 130 N.J. 393
(1991). Trial courts need not presume the existence of
prejudice prior to voir dire, and the passage of time can be
a highly relevant fact that rebuts any presumption of
partiality or prejudice. State v. Biegenwald, 106 N.J. at
30-37.
The right to an open, public trial is a shared right of
the accused and the public and, while not absolute,
“prevails unless defendant can demonstrate that there is
a realistic likelihood that his right to an impartial jury will
be threatened from adverse publicity emanating from an
open trial proceeding and means other than closure are
not available to preserve the fairness of the trial.” State v.
Halsey, 218 N.J.Super. at 153-54; see State v. Sugar, 100
N.J. 214, 244 (1985).
a. Defendant must move for closure, and bears the
burden of demonstrating at a hearing that his or her fair
trial rights will be jeopardized by adverse pretrial
publicity. State v. Bey, 112 N.J. 45, 84 n.24 (1988);
State v. Williams, 93 N.J. at 64. The State, too, can move
for closure under proper circumstances. State v. Sugar,
100 N.J. at 243-44.
b. In evaluating a closure application, the court must
assess all the evidence and circumstances that are relevant
to determining the likelihood of jury prejudice, i.e., the
publicity that the particular hearing will generate and its
cumulative impact in conjunction with all preexisting
publicity, the nature of the particular pretrial proceeding
for which closure is sought, the contested issues that are
the subject of the particular proceeding, the nature and
form of the anticipated evidence that will be material to
these issues, and the character of the adverse publicity
that may be generated from an open hearing disclosing
such evidence. State v. Williams, 93 N.J. at 64-65. The
trial court is free to utilize its own “special judicial
expertise and experience” to determine the efficacy of
alternatives to closure, which may include use of “foreign
jurors,” a change of venue, exhaustive voir dire,
postponing trial, or frequent cautionary instructions. Id.
at 67-69; see State v. Williams, 113 N.J. at 429; State v.
Harris, 282 N.J.Super. at 412-15.c. Upon completion of the hearing, the court must
reach an ultimate determination as to the realistic
likelihood of prejudice and the need for closure based
upon (1) the evidence relevant to the nature and extent
of the adverse publicity generated by the open pretrial
proceeding, including any inferences as to its potential
for prejudice against a fair trial by an impartial jury, and
(2) the evidence relating to the efficacy of the available
means of selecting jurors and conducting the trial to
assure the integrity and impartiality of the jury. State v.
Williams, 93 N.J. at 69; see State v. Williams, 113 N.J. at- It must state its findings of fact and the basis for its
conclusion. State v. Williams, 93 N.J. at 73.
d. The press and “other interested parties” should
have the opportunity to be heard in any closure
application. Id. at 72.- On a retrial, the relevant question in determining
whether a jury is impartial is not whether the community
remembered the first trial, but whether the jurors at the
second trial had such fixed opinions that they could not
impartially judge defendant’s guilt. Patton v. Yount, 467
U.S. 1025, 1035 (1984); State v. Dixon, 125 N.J. 223,
272 (1991).. - When during trial local newspaper articles
referred to defendant as an unemployed laborer and
noted that he was represented by the Public Defender,
perceived prejudice could be “weeded out” through voir
dire. State v. Royster, 57 N.J. 472 , cert. denied, 404 U.S.
910 (1971). - Constitutional standard for fair trial requires panel
of impartial, indifferent jurors, but jurors actually
impaneled need not be ignorant of case’s facts. State v.
Marshall, 123 N.J. at 77-79, 86; State v. Williams, 113
N.J. at 429.
B. Publicity During Trial- If publicity during the proceedings threatens its
fairness, a new trial should be ordered. The trial court has
the power to control publicity during criminal trials, and
may limit the press’ presence at judicial proceedings to
prevent prejudice to defendant. Shepard v. Maxwell, 384
U.S. 333, 357-59 (1966); Hammock v. Hoffman-