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Public can access tape played at pretrial hearing

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NEWS MEDIA UPDATE   ·   PENNSYLVANIA   ·   Secret Courts   ·   June 25, 2007

NEWS MEDIA UPDATE   ·   PENNSYLVANIA   ·   Secret Courts   ·   June 25, 2007

Public can access tape played at pretrial hearing

  • Audio of defendant allegedly threatening a victim can be released after being played during a preliminary hearing, the high court ruled.

June 25, 2007  ·   The Pennsylvania Supreme Court has allowed a trial judge to release an audiotape played during a criminal defendant’s preliminary hearing, even if the tape does not meet the requirements to be used as evidence at trial.

Though they disagreed on the reasoning, six of the seven justices on the state high court upheld the decision of the judge who presided over the hearing and who ordered the release of a tape created by a prison phone monitoring system that allegedly contained the voices of the defendant making threatening statements to a woman.

Three justices ruled that because the audiotape was played in a proceeding open to the public, was relied upon by the judge in his decision making, and its rebroadcast would not by itself jeopardize the defendant’s right to a fair trial, members of the press and the public were entitled to copies of the tape.

Three other justices joined in last week’s decision to allow access to the tape, saying it was within the trial court’s discretion to order its release. But they disagreed that such access was mandated, arguing that the release of actual audio was not necessarily required, particularly when issues of personal privacy or prejudicing a defendant’s trial were implicated and alternatives such as transcripts were available for the public to review. The seventh justice, James J. Fitzgerald, dissented, saying because the audiotape was never entered into evidence or otherwise made part of the official court record, it was not a judicial record subject to public access.

Pittsburgh television station WPXI had sued to gain access to the tape recording.

“I believe the decision provides some valuable guidance in addressing the access of the media and the public to preliminary hearing proceedings,” said Walter DeForest, attorney for the station.

Justice Thomas G. Saylor wrote the main opinion announcing the judgment of the court, said that even though the tape may not meet the requirements to be admitted in the defendant’s criminal trial, it was relied upon by the trial judge in the preliminary hearing stage and thus constituted a “judicial record.” Because it was a judicial record, it was presumptively open to the public unless circumstances warranting disclosure outweighed the public interest.

Here, prosecutors could not support their arguments for closure. “[T]he mere statement of one party that allowing public dissemination of a record or document will prejudice the trial, without additional evidence, does not warrant a denial of access,” Saylor wrote.

Justice Cynthia A. Baldwin wrote a concurring opinion arguing that Pennsylvania law did not require access to evidence in its “most dramatic form.” A transcript, Baldwin said, would be sufficient in this case to satisfy public access while also protecting victims from further pain. Nevertheless, she felt the trial judge was within his power to release the audiotape, which she described as a judicial record.

Justice Ronald D. Castille also focused on the transcript issue in his concurring opinion, saying an audio recording does not necessarily offer anything to the public interest.

“In my judgment, the effect on the public’s confidence and understanding has nothing to do with the tape vs. transcript issue, and everything to do with the context (or lack of context) in which the media ultimately elect to portray the matter,” he wrote.

(Pennsylvania v. Upshur, Media Counsel: Walter DeForest, DeForest, Koscelnik, Yokitis, Kaplan & Berardinelli, Pittsburgh)NW

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