preponderance of the evidence. Once defendant meets
that burden, the trial court must then determine whether
closure is the only alternative which will adequately
protect the defendant’s rights. The other alternatives for
the trial court to consider are: larger pools of potential
jurors; changes of venue, more extensive voir dires, and
effective cautionary jury instructions. In order to assure
overall consistency, uniformity and soundness in the
application of the balancing test the trial courts must
follow certain minimum procedures and general
guidelines. Members of the press must be given notice of
the motion for closure and must be allowed to
participate. Further, the trial court should consider
whether any application on the closure should be closed
in order to protect defendant’s rights. Finally, the trial
court must indicate to the parties and disclosure on the
record its findings of fact and the basis for its conclusion
as to closure.
See also State v. Marshall, 199 N.J. Super. 502 (App.
Div. 1985) and State v. Sugar, 100 N.J. 214 (1985).
Regarding alternatives to closure, see State v. Allen,
73 N.J. 132 (1977) and State v. Joyce, 160 N.J. Super. 419
(Law Div. 1978).
- Courtroom Sketches
In re Application of National Broadcasting Co., Inc.,
64 N.J. 476 (1974) reviewed whether newspaper artists
may make sketches of the courtroom or of any person
during sessions of court. Canon 35 of Canons of Judicial
Ethics forbids such a procedure. Nevertheless, the
Supreme Court held that sketching may be permitted
where it is unobtrusive, does not disturb the attention of
witnesses or jurors and is in no way a coercive influence
upon them. Should the conduct of an artist at any time
fail to meet these standards or appear to detract from the
decorum of the court, the trial judge has discretion to take
corrective steps.
- Cameras
See generally, the New Jersey Supreme Court
guidelines for Still and Television Camera and Audio
Coverage of Proceedings in the Court of New Jersey,
issued March 19, 1985.
B. Privilege To Gather News
State v. States, 84 N.J. Super. 404, 408 (Cty. Ct.
1964), rev’d on other grounds, 44 N.J. 285 (1965),
observed that “...the right of a free press to gather news is
a jealously guarded constitutional guarantee.”State v. Lashinsky, 81 N.J. 1 (1979), held that a press-
photographer was properly convicted as a disorderly
person for his refusal to heed a police officer’s order to
move back from the immediate vicinity of a fatal
automobile accident. Although the right of the press to
gather news is entitled to special constitutional
protection, that right must yield, under appropriate
circumstances, to other important and legitimate
government interests. Accordingly, reasonable time,
place and manner regulation may be imposed by the
State. However, regulations imposed must take into
account the “unique role” of the press in public life. A
balancing of the competing values is required to
determine the reasonableness of a criminal statute or
governmental sanction as applied to a member of the
press engaged in his profession. In this case, from an
objective standpoint and under all the circumstances, the
policeman’s order was reasonable even taking into
account the special role performed by the press.See also, Gannett Co. Inc. v. DePasquale, supra;
Houchins v. KQED, Inc. 438 U.S. 1, 17 (1978) (Stewart,
J. concurring); Pell v. Procunier, 417 U.S. 817, 826
(1974); Branzburg v. Hayes, 408 U.S. 665, 707 (1972);
In re Farber, 78 N.J. 259 (1978), cert. denied sub nom.
New York Times Co. v. New Jersey, 439 U.S. 997 (1978);
Freedman v. New Jersey State Police, 135 N.J. Super. 297,
302 (Law Div. 1975).C. Privilege Of Non-Disclosure- Introduction
New Jersey courts consistently refused to recognize a
newsperson’s privilege of non-disclosure under the
common law. In re Grunow, 84 N.J.L. 235 (Sup. Ct.
1913). Additionally, the United States Supreme Court
has held that the First Amendment does not relieve a
newspaper reporter from appearing before a grand jury
and answering questions as to either the identity of the
news sources or information which the reporter received
in confidence. Branzburg v. Hayes, 408 U.S. 665 (1972).Nevertheless, the Legislature enacted the “Shield
Law,” N.J.S.A. 2A:84A-21 et seq., and the 1977 Shield
Law amendment was introduced shortly after the
Appellate Division upheld the incarceration of a
newspaper reporter for his refusal to testify. In re Bridge,
120 N.J. Super. 460 (App. Div.), certif. denied, 62 N.J. 80
(1972), cert. denied, 410 U.S. 991 (1973). The bill was