Gannett Co., Inc. v. State

571 A.2d 735, 1990 Del. LEXIS 98

• Court: Supreme Court of Delaware
• Decided: February 22, 1990
• Status: Published

Opinions

MOORE, Justice,

for the majority.

We accepted this expedited interlocutory appeal to consider an issue of first impression — whether the news media have a qualified first amendment right to require announcement of jurors’ names during a highly publicized first degree murder trial, even though the parties have full access to such information and the proceedings are otherwise open to the public. The Gannett Company (“Gannett”), publisher of the News-Journal, a daily statewide newspaper in Delaware, appeals from a pretrial order (the “Order”) of the Superior Court directing the Prothonotary to keep confidential the names of prospective jurors in this case. The jury was not sequestered, and the Order was entered under the authority of a Delaware statute derived from the federal and uniform laws of the United States. The trial court properly concluded that the Order was necessary in light of the intense media coverage of this case, and the unprecedented coverage of individual jurors by Gannett in another recent and notorious murder trial in Delaware.

On appeal, Gannett contends that the Order unconstitutionally restricts its first amendment right of access to judicial proceedings, and violates its constitutional right to a hearing under the fourteenth amendment. We disagree. Applying the analogous principles of Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740-41, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”), we find that no qualified right of access exists here. See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589, 100 S.Ct. 2814, 2834, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring). Press-Enterprise II suggests that a qualified first amendment right of access attaches only if “the particular proceeding passes ... [threshold] tests of experience and logic.” Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740. Gannett’s claims fail both these tests. Accordingly, we affirm.

I.

Steven B. Pennell was charged with three counts of first degree murder in November, 1988.¹ The murders were alleged to be serial killings, and the State sought the death penalty. Autopsies of the three female victims revealed that they had been bound and tortured, their bodies mutilated. Because of the lurid nature of the crimes, the case received widespread publicity in the local and regional media throughout the investigation, pretrial and trial proceedings.²

During the spring and summer of 1989, the Superior Court held several pretrial hearings, all of which were open to the public. The trial judge was concerned about the extensive publicity the case was receiving. He began to consider ways to insure that prospective jurors were unbiased and that the defendant would receive a fair trial. On July 28, 1989, before the names of prospective jurors had been publicly announced, and before jury selection had begun, the Order was entered, which stated:

In order to protect the integrity of the jury in this case, I am taking the following steps:

1. I direct the Prothonotary to keep confidential the names of all jurors subpoenaed for this jury panel. The jury information sheet will be available only to the attorneys for the parties. The names will not be released to anyone else.

2. On jury selection days those jurors who respond will be assigned a number from 1 to 100. Those numbers will be placed on the juror information sheets delivered to the attorneys and the Court.

3. All jury selection in open Court will be accomplished by numbers and not by names.

State v. Pennell, Del.Super., Cr.A. Nos. IN88-12-0051 to 0053, Gebelein, J. (July 28, 1989) (ORDER).³

The Order was issued because of the overwhelming pretrial publicity in this case, and the similarly extraordinary and unprecedented trial publicity Gannett gave unsequestered jurors in the nearly contemporaneous murder trial of Joyce Lynch. See State v. Joyce L. Lynch, Del.Super., Cr.A. Nos. IK88-01-0040 to 0047, Ridgely, J., 1989 WL 64149 (June 2, 1989) (ORDER). Lynch and her husband, Richard, were accused of stealing a nine-day old child on Christmas Eve, and killing his parents during the abduction. Joyce Lynch was tried first. During jury selection, the names of prospective jurors were announced in court before individual voir dire. At that time the Lynch court had no indication that Gannett might publish names and profiles of individual jurors during the trial. Later, the State and counsel for Lynch informed the court that a Gannett reporter was seeking specific information about members of the unsequestered jury. The State and defense counsel feared that publication of jurors’ names and addresses would encourage the public to make unsolicited phone calls to individual jurors about the case and might threaten juror impartiality.

After an in camera hearing, the Lynch court ordered the parties and the press to keep jurors’ names confidential. Gannett immediately moved to intervene and to vacate the order, alleging that it was an unconstitutional prior restraint since the jurors’ names had already been announced. The trial judge refused to vacate the order as a prior restraint, characterizing it instead as a restrictive order directed to court personnel, but acknowledged the media’s right to publish information (the jurors’ names) which had already been publicly announced in court. However, the media was urged to consider carefully the “Bar-Bench-Press Declaration of Delaware” which encouraged news representatives to respect the privacy of jurors.

Gannett, nevertheless, immediately published an article in the midst of trial highlighting the names and giving profiles of individual jurors. Apparently, this was the first newspaper article in Delaware to publish such information while a trial was in progress. The article admitted that the “jurors value[d] their privacy highly and became extremely upset when a ... television crew followed some of them to lunch and attempted to film them eating.” Further, it stated that the jurors “avoid[ed] media, family members of the victims and defendant, and anyone else who appeared] recognizable, leaving local restaurants at the sight of a familiar face from the courtroom.” The article then continued with detailed profiles of the jurors, giving their names, hometowns, occupations, marital status, number and ages of their children, personal mannerisms and appearance. The latter portrayals were rarely flattering. Jurors were described as having a “stern expression”, a “stern demeanor”, “stylishly dressed”, “admits to a hearing problem”, “stout”, “mostly bald”, “short and round”, and “tall, balding and thin”.

Recognizing the press’ claim of a prior restraint in Lynch, the Pennell trial judge issued the Order limiting disclosure of the jurors’ names to anyone other than the State and defense. It permitted “the Court to proceed with the selection [of jurors] and to allow any interested parties such as the News-Journal to come in and talk about what should be the procedure without first let[ting] the names be disclosed to the public.” Proceedings on Motion to Vacate Order, at 22 (Sept. 11, 1989). The trial judge bottomed his ruling on the principle that voir dire of the jury is subject “to control ... as a matter of court management.” Id. at 11.

On September 7, 1989, Gannett moved to intervene and to vacate the Order. The Superior Court heard oral argument on these motions on the morning of September 11. Both the State and Pennell urged the trial court to keep jurors’ identities confidential. In an expedited bench ruling, the trial judge refused to vacate his Order. No evidence was presented at this hearing, but before the trial court’s written opinion was issued, Gannett submitted certain affidavits. Voir dire of potential jurors also began.⁴ Jury selection took several days.

In a written opinion, the trial judge again refused to vacate the Order. State v. Pen-nell, Del.Super., Cr.A. Nos. IN88-12-0051 to 0053, Gebelein, J., 1989 WL 167445 (Oct. 2, 1989). He cited statutory and judicial authority giving trial judges discretion in such matters. Id. at 4 & 10 (citing 10 Del.C. § 4513 and Superior Court Jury Plan § 16). See also Revised Report of the Judicial Conference Committee on the Operation of the Jury Selection on the “Free Press — Fair Trial” Issue, 87 F.R.D. 518, 529-32 (1980). He also stated that the press had no right to require a trial judge to release jurors’ names under Delaware’s Freedom of Information Act because records exempted from disclosure by statute (such as 10 Del. C. § 4513) are not considered public records. Id. at 9.

Finally, the trial court noted that even assuming the decision to withhold jurors’ names amounted to a prior restraint, or closure of judicial proceedings under the first amendment, it was justified in withholding the names as the least restrictive alternative to protect the defendant from the “reasonable probability or reasonable likelihood” of prejudice. Id. at 14 & 18-25 (citing State v. Shipley, Del.Super., 497 A.2d 1052, 1055 (1985)). In applying Ship-ley’s “reasonable probability” of prejudice test, the trial court expressly rejected the higher “substantial probability” standard for closure enunciated in Press-Enterprise II. Id. at 15 n. 3. It reasoned that Press-Enterprise II involved unique facts and trial procedures not present here. Id.5

On September 18, Gannett appealed. This Court initially ordered Gannett to show cause why it had standing, but later vacated the order because “[t]he Superior Court’s order has arguably affected a right within the zone of the media’s interests which are protected by the First Amendment.” Gannett Co. v. State, Del.Supr., 565 A.2d 895, 897 (1989). The appeal was expedited, and because it proceeded simultaneously with Pennell’s criminal trial, we appointed an amicus curiae to file a brief on behalf of the State and Pennell. The Court expresses its appreciation to the amicus for that effort.

On appeal Gannett contends that even though it never was excluded from the courtroom at any stage of the proceedings, including jury voir dire and selection, the Order requiring court personnel to keep jurors’ names confidential constitutes a partial closure of the trial. Gannett claims to have a qualified first amendment right of access to public announcement of jurors’ names based on the threshold tests of experience and logic under Press-Enterprise II.

, First, Gannett argues that jurors’ names have historically been announced in Delaware courts, and that neither 10 Del.C. § 4513 nor the Superior Court Jury Plan are applicable to that historical tradition. Second, it claims that disclosure of jurors’ names enhances both the fairness and the appearance of fairness in criminal trials by imposing an added sense of responsibility on jurors and by promoting public confidence in the trial process. Gannett and its amici curiae also argue that disclosure and publication of jurors’ names provides an additional check against juror bias. Based on this alleged first amendment right, Gannett concludes that the trial court erred in failing to provide notice and to conduct a proper hearing, in refusing to find a substantial threat to a compelling state interest, and in failing to consider “less restrictive” alternatives such as sequestration of the jury.

II.

The trial court ruled that it had statutory and common law authority to prohibit announcement of jurors’ names in court, and that its prohibition did not violate federal or state constitutional principles. We review such legal holdings de novo. Cavalier Oil Corp. v. Hartnett, Del.Supr., 564 A.2d 1137, 1141 (1989); Fiduciary Trust Co. v. Fiduciary Trust Co., Del.Supr., 445 A.2d 927, 930-31 (1982). The standard of review is whether the trial court erred in formulating or applying legal precepts. Rohner v. Niemann, Del. Supr., 380 A.2d 549, 552 (1977). If the trial court’s determinations did not violate state law, or federal or state constitutions, we review its decision to prohibit announcement of jurors’ names for an abuse of discretion. Gimbel v. Signal Cos., Del.Supr., 316 A.2d 619, 620 (1974).

A.

Based on the first and fourteenth amendments,⁶ Gannett challenges the trial court’s inherent and statutory powers to issue the Order. Neither a criminal defendant’s sixth amendment right to a public trial, nor an independent state constitutional right to “open” courts is at issue here. The sixth amendment guarantees a criminal defendant the right to a speedy and public trial by an impartial jury. U.S. Const, amend. VI.⁷ That right is personal to the accused. The United States Constitution does not expressly guarantee the public a right of access to a criminal trial. Gannett v. DePasquale, 443 U.S. 368, 379-80 & 391, 99 S.Ct. 2898, 2905, 2911, 61 L.Ed.2d 608 (1979); Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 1662, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring). Similarly, the Delaware Constitution guarantees open courts,⁸ but that section, like similar provisions in other state constitutions, does not specify what information must be announced at trial. When authorized by statute, or in order to protect a defendant’s right to a fair trial, courts may withhold disclosure of certain information without depriving the public of its right to open courts. See State v. White, 97 Ariz. 196, 398 P.2d 903, 904 (1965); Smith v. State, Del.Supr., 317 A.2d 20, 23-24 (1974); Johnson v. Simpson, Ky.App., 433 S.W.2d 644, 646 (1968); Brown v. State, 222 Miss. 863, 77 So.2d 694, 696 (1955); E.W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896, 899-904, appeal dism’d, 164 Ohio St. 261, 130 N.E.2d 701 (1955).

Here, Gannett’s claimed right of access to jurors’ names rests solely on the first amendment and the Delaware Constitution’s guarantee of a free press.⁹ See generally Annotation, Propriety of Order Forbidding News Media From Publishing Names and Addresses of Jurors in Criminal Cases, 36 A.L.R.4th 1126, 1128 (1985) [hereinafter Annotation]. We thus confront the novel issue whether the news media have a qualified first amendment right of access requiring announcement of jurors’ names during a criminal trial. No court has yet decided the issue under similar circumstances, and significantly, it does not fit neatly into any analytical structure previously applied in first amendment cases involving jurors’ names. Other cases regarding the media’s right of access to jurors’ names presented questions of prior restraints on the press, the public’s right of access to judicial records, and the actual closure of courtroom proceedings. While those circumstances are not present here, we nonetheless have applied the Press Enterprise II test for closure of judicial proceedings as the most closely analogous basis for disposition of the matter. Cf In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1331-32 (D.C.Cir.1985) (applying Press-Enterprise II’s threshold test for closure to first amendment claim of access to judicial records).

Gannett concedes that no prior restraint is involved, since the jurors’ names were never announced. Compare Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 103 S.Ct. 3524, 77 L.Ed.2d 1284 (Brennan, Circuit Justice 1983) (order which permanently restrained all persons from publishing jurors’ names and addresses after their names had been announced in voir dire proceedings was a prior restraint). Moreover, the specific information sought, the announcement of jurors’ names in court, is not itself a judicial record. Compare Newsday, Inc. v. Sise, 71 N.Y.2d 146, 524 N.Y.S.2d 35, 518 N.E.2d 930 (1987), cert. denied, 486 U.S. 1056, 108 S.Ct. 2823, 100 L.Ed.2d 924 (1988) (jurors’ names part of judicial records); Hearst Corp. v. State, 60 Md.App. 651, 484 A.2d 292 (1984) (jurors’ names and addresses part of court’s files). Although we see no real distinction between a court’s authority over judicial records and its power over the announcement of information contained in those records, we do not decide the case on this ground. But see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973 (1980) (“It is not crucial whether we describe this right ... as a ‘right of access’ or a ‘right to gather information’....”) (citations omitted); In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1337 (D.C.Cir.1985) (“The more precise inquiry, however, is a functional rather than classificational one: whether information of the sort at issue here — regardless of its prior or current classification as court records — was traditionally open to public scrutiny.”).

Finally, it is inaccurate to describe this as a closure case. The judicial proceedings, including voir dire, were never closed to the public, and Gannett has cited no case directly in support of its thesis of closure. The failure of Gannett’s position is confirmed by an application of Press-Enterprise II.

B.

Preliminarily, we note the admonitions of the Supreme Court of the United States in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), which has strong parallels to this dispute. Sheppard held that the trial judge’s failure to protect the defendant from prejudicial publicity, and to control disruptive influences in the courtroom, warranted reversal of a much-publicized murder conviction. Throughout the pretrial and trial proceedings, the trial judge failed to protect the jury from media attention. Regarding that problem, which is relevant here, the Court noted:

[T]he jurors were thrust into the role of celebrities by the judge’s failure to insulate them from reporters and photographers. The numerous pictures of jurors, with their addresses, which appeared in the newspapers before and during the trial itself exposed them to expressions of opinion from both cranks and friends. The fact that anonymous letters had been received by prospective jurors should have made the judge aware that this publicity seriously threatened the jurors’ privacy.

Id. at 353, 86 S.Ct. at 1517 (citation omitted).

Based on this and other prejudicial influences, the Supreme Court held that the trial court failed to adequately control the proceedings. It specifically noted that trial courts were empowered to control the courtroom and courthouse premises, and to restrict information disseminated by attorneys, witnesses, and court officials. Id. at 358-59, 86 S.Ct. at 1520. Moreover, Sheppard recognized that:

[U]nfair and prejudicial news comment on pending trials has become increasingly prevalent_ Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused_ If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.

Id. at 362-63, 86 S.Ct. at 1522.

Sheppard, therefore, imposed an affirmative duty on trial courts to limit outside influences on juries.¹⁰ See Hughes v. State, Del.Supr., 490 A.2d 1034, 1041 (1985) (quoting with approval from same language in Sheppard). Based on Sheppard, the Order issued here was within the trial court’s traditional power over such matters. While Sheppard did not specifically involve a first amendment challenge, we nevertheless keep in mind its principles when extensive media activity threatens a party’s fundamental right to a fair trial.

C.

The first amendment explicitly guarantees public freedom of expression, but the judicially-recognized first amendment right of access to information is not immutable. Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 585-86, 100 S.Ct. at 2831-32 (Brennan, J., concurring). The Supreme Court of the United States has recognized an implicit first amendment right of access to criminal trials, id. at 580, 100 S.Ct. at 2829; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982), to the selection of jurors, Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508-09, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I”), and to certain preliminary hearings, Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. at 2741. To our knowledge, however, no court has yet recognized a right of access to jurors’ names.

Even when a first amendment right of access exists, it is qualified, and not absolute. Id. at 9, 106 S.Ct. at 2740; Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619. This qualified right “may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984). To overcome the presumption of openness once a qualified right of access attaches, a trial court must find that “closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824. Specifically, a court must find that (1) “there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent” and (2) “reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.” Press-Enterprise II, 478 U.S. at 14, 106 S.Ct. at 2743. See also Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824; Richmond Newspapers, 448 U.S. at 581, 100 S.Ct. at 2829.

In a criminal proceeding the proponent of the first amendment claim must satisfy a two-part threshold test. Press Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740. First, it must be demonstrated that “the place and process have historically been open to the press and general public.” Id. (experience test). Second, it must be shown that “public access plays a significant positive role in the functioning of the particular process in question.” Id. (logic test). The party alleging the existence of the qualified first amendment right must pass both parts of this threshold test. Only then does a qualified first amendment right attach. Id. at 9, 106 S.Ct. at 2740; Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619.

Applying those principles here, we find that Gannett does not satisfy either part of the threshold test. Our decision is in accord with other jurisdictions that have recently addressed somewhat similar issues. United States v. Edwards, 823 F.2d 111 (5th Cir.1987), cert. denied sub nom., Times-Picayune Pub. Corp. v. Edwards, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988); United States v. Doherty, 675 F.Supp. 719 (D.Mass.1987); Newsday, 71 N.Y.2d at 153 n. 4, 524 N.Y.S.2d 35, 518 N.Y.S.2d 930. Because we find that no qualified first amendment right of access exists, we need not consider whether the trial court conducted a proper hearing or made the findings mandated by Press-Enterprise I after such a qualified right attaches.

III.

Turning to the so-called experience test, Gannett first must prove that announcement of jurors’ names has traditionally been open to the press and general public. Only recently have courts looked to historical experience¹¹ as an indication of whether a constitutional right of access exists. Press-Enterprise II, 478 U.S. at 10-11, 106 S.Ct. at 2741-42; Press-Enterprise I, 464 U.S. at 505-08, 104 S.Ct. at 821-23; Globe Newspaper, 457 U.S. at 605, 102 S.Ct. at 2619; Richmond Newspapers, 448 U.S. at 564-69, 100 S.Ct. at 2820-23; Id. at 589-93, 100 S.Ct. at 2834-35 (Brennan, J., concurring). See also DePasquale, 443 U.S. at 384-91, 99 S.Ct. at 2907-11 (evaluating historical right of access to open trials under the sixth amendment).

[T]he case for a [constitutional] right of access has special force when drawn from an enduring and vital tradition of public entree to particular proceedings or information. Such a tradition commands respect in part because the Constitution carries the gloss of history. More importantly, a tradition of accessibility implies the favorable judgment of experience.

Richmond Newspapers, 448 U.S. at 589, 100 S.Ct. at 2834. (Brennan, J., concurring) See also Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740; Globe Newspaper, 457 U.S. at 605, 102 S.Ct. at 2619.

The Supreme Court of the United States has drawn from many sources to determine the national tradition respecting rights of access. These include English and American commentators on the common-law as it existed when the Constitution was adopted and ratified, Press-Enterprise I, 464 U.S. at 506-07, 104 S.Ct. at 822; Richmond Newspapers, 448 U.S. at 565-67, 100 S.Ct. at 2821-22; id. at 589-90, 100 S.Ct. at 2834 (Brennan, J., concurring); DePasquale, 443 U.S. at 389, 99 S.Ct. at 2910; contemporaneous provisions of state constitutions and statutes, and contemporaneous state judicial decisions, Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. at 2741; Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823; Richmond Newspapers, 448 U.S. at 567-68, 100 S.Ct. at 2822-23; id. at 590, 100 S.Ct. at 2834 (Brennan, J., concurring); DePasquale, 443 U.S. at 386 n. 15, 99 S.Ct. at 2908 n. 15; and current state statutes indicating the public’s common understanding of the historical experience and tradition, Press-Enterprise II, 478 U.S. at 11 & 11 n. 4, 106 S.Ct. at 2742 & 2742 n. 4; DePasquale, 443 U.S. at 388 n. 19 & 391 n. 23, 99 5.Ct. at 2910 n. 19 & 2911 n. 23.

Gannett contends that the names of jurors have traditionally been announced in court. It claims that the procedure for jury selection under old English common law required jurors’ names to be called out in court, but Gannett primarily focuses and relies on the historical practice in Delaware. It argues that the Delaware practice, as reported in the earliest recorded cases and in an early treatise on Delaware procedure, has been to announce the names of prospective jurors in court after the jury is empaneled. Based on these sources, Gannett contends that the practice in Delaware satisfies Press-Enterprise II's threshold test of experience. We disagree.

Gannett’s rather myopic focus on the historical courtroom practice in Delaware is too narrow to establish a national constitutional right. If a qualified first amendment right of access to jurors’ names exists, it must be drawn from the broad spectrum of sources cited above. Under Gannett’s thesis we would be required to recognize a first amendment right in Delaware, even if its historical practice differed from that of all other states.¹² Whenever the Supreme Court has considered whether the public has a first amendment right of access to a proceeding, it has relied on the national tradition and experience. Press-Enterprise II, 478 U.S. at 10 & 10 n. 3, 106 S.Ct. at 2741 & 2741 n. 3 (noting the common practice of open preliminary hearings in many states); Richmond Newspapers, 448 U.S. at 567-68, 100 S.Ct. at 2822-23 (discussing common experience of open trials in several states); DePasquale, 443 U.S. at 388 n. 19, 99 S.Ct. at 2910 n. 19 (reviewing diverse state traditions regarding public attendance at criminal trials).

More importantly, Gannett’s historical sources are incomplete and inadequate. Gannett cites Blackstone’s Commentaries as evidence of the tradition of announcing jurors’ names in court. 3 W. Blackstone, Commentaries on the Laws of England 358 (1769) [hereinafter Commentaries]. It also refers to two Delaware cases with oblique references to the "naming” of jurors, Wilds v. Green, Del.Supr., 2 Del.Cas. 292, 295 (1817); State v. Turner, Del.Supr., 1 Del.Cas. 94, 95 (1796), and to Wooley’s treatise on Delaware procedure, Wooley, Practice in Civil Actions §§ 640 & 657 (1906).¹³

Gannett’s sources do not support its conclusion. The passage cited from Blackstone’s Commentaries describes the process of empanelling the jury based on a statutory provision:

A common jury is one returned by the sheriff according to the direction of the statute 3 Geo. II c. 25 ... and when each cause is called, twelve of these persons, whose names shall first be drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused. ...

As the jurors appear, when called, they shall be sworn, unless challenged by either party.

Commentaries at 358 (emphasis added). Whether jurors’ names were announced out loud appears insignificant to Blackstone. Instead, he relies upon the process of challenging jurors for cause to insure the fairness of the trial:

We may here again observe, and observing we cannot but admire, how scrupulously delicate, and how impartially just, the law of England approves itself, in the constitution and frame of a tribunal.... 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In its caution against partiality and bias, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shown of malice or favour to either party.

Id. at 365. Indeed, in Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), the Supreme Court of the United States stated that voir dire is “the method we have relied on since the beginning” to identify bias. Id. at 1038, 104 S.Ct. at 2892 (citing United States v. Aaron Burr, 25 F.Cas. 49, 51 (C.C.D.Va.1807) (No. 14,692g) (Marshall, C.J.).

Similarly, the Delaware cases and Woo-ley’s treatise do not support the position that announcement of jurors’ names is constitutionally required. Merely because an historic procedure exists, does not automatically enlarge it to constitutional proportions. As the United States Court of Appeals for the District of Columbia stated: “[I]t is risky ... to assume that a practice of granting access where no objection is made establishes the existence of an acknowledged right to access.” In re Reporters, 773 F.2d at 1336.

Gannett’s historical sources do not mention whether the decision to announce jurors’ names is within the trial court’s traditional authority to control courtroom proceedings. Cf. Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. at 825; Sheppard v. Maxwell, 384 U.S. at 358, 86 S.Ct. at 1520. Its sources hardly support the type of strong national tradition recognized in other right of access cases. Compare Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. at 2741 (preliminary hearings); Press-Enterprise I, 464 U.S. at 505-08, 104 S.Ct. at 821-23 (jury selection proceedings); Richmond Newspapers, 448 U.S. at 564-69, 100 S.Ct. at 2820-23 (criminal trials) with DePasquale, 443 U.S. at 387-91, 99 S.Ct. at 2909-11 (no sixth amendment right to attend pretrial suppression hearings); In re Reporters, 773 F.2d at 1336 (“[W]e cannot discern an historic practice of such clarity, generality and duration as to justify the pronouncement of a constitutional rule_”). Indeed other courts have noted that the theory of the jury at common law supports an historical tradition of judicial discretion as to disclosure of juror names.

The virtue of the jury system lies in the random summoning from the community of twelve, “indifferent” persons— “not appointed till the hour of trial” — to decide a dispute, and in their subsequent, unencumbered return to their normal pursuits. The lack of continuity in their service tends to insulate jurors from recrimination for their decisions and to prevent the occasional mistake of one panel from being perpetuated in future deliberations. Because the system contemplates that jurors will inconspicuously fade back into the community once their tenure is completed, anonymity would seem entirely consistent with, rather than anathema to, the jury concept.

United States v. Scarfo, 850 F.2d 1015, 1023 (3rd Cir.) (citation to Blackstone’s Commentaries omitted), cert. denied, — U.S. -, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988). See also Newsday, 71 N.Y.2d at 153 n. 4, 524 N.Y.S.2d 35, 518 N.E.2d 930.

Paramount in any historical analysis is the fact that trial courts in Delaware and other states have long had specific statutory discretion over the release of jurors’ names.¹⁴ Indeed, Blackstone recognized the importance of statutory procedures when he noted that “[a] common jury is one returned by the sheriff according to the discretion of the statute_” Commentaries, at 358 (emphasis added). Thus, we turn to a comprehensive analysis of the statutory history, which was not provided to us by any of the parties.

In 1968, the United States Congress enacted the Federal Jury Selection and Service Act. 28 U.S.C. § 1861 et seq. Among its provisions is the following:

Plan for random jury selection

(a) Each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of sections 1861 and 1862 of this title, and that shall otherwise comply with the provisions of this title....

(b) Among other things, such plan shall....

(7) fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.

28 U.S.C. § 1863(b)(7) (emphasis added). The Federal Act’s legislative history provides some additional insight into the historical discretion traditionally afforded trial courts in connection with disclosing jurors’ names. Congress noted that the statute “permits the present diversity of practice to continue. Some district courts keep juror names confidential for fear of jury tampering. Other district courts routinely publicize the names.” H.R.Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 1792, 1801. Indeed, prior to adoption of the current statute, federal law left the manner of em-panelling jurors to local rules of court mo-delled after diverse state statutes. United States v. Antz, 16 F. 119, 125 (C.C.E.D.La.1883). See also State v. Felts, 133 F. 85, 92 (C.C.W.D.Va.1904); United States v. Breese, 172 F. 765, 768 (W.D.N.C.1909).

In 1975, the United States Supreme Court issued its opinion in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) strongly endorsing both the policy and statutory “machinery” of the recently-enacted Federal Jury Selection and Service Act. Id. at 529, 95 S.Ct. at 697. Less than six months later, based on language virtually identical to that found in the federal law [28 U.S.C. § 1863(b)(7)], our General Assembly passed a statute authorizing the Superior Court to adopt a written plan for random selection of grand and petit juries. 60 Del.Laws ch. 225 § 4504 (1975). Like the Federal Act, that statute specifically authorized judges to keep jurors’ names confidential:

(a) The Superior Court shall devise and place into operation a written plan for random selection of grand and petit jurors ....

(b) Among other things, such plan shall:

(7) fix the time when the names drawn from the qualified jury wheel shall be disclosed to the parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the President Judge of the Superior Court, or such other superior court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.

60 Del.Laws ch. 225 § 4504(b)(7) (emphasis added).

Pursuant to this statute, in 1976 the Superior Court adopted its plan for random jury selection in New Castle County. That plan, which remains in force today, specifically provides:

Section 16. Disclosure of Information About Jurors. The names of qualified jurors drawn from the qualified jury wheel shall be made available to the public upon request unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.

Plan of the Superior Court of Delaware For the Random Selection of Grand and Petit Jurors, § 16 (effective Sept. 13, 1976) (emphasis added) [hereinafter Jury Selection Plan]. This has been part of the fabric of our law for over 13 years.

In 1987 the General Assembly reiterated the concept of judicial discretion over release of jurors’ names by codifying it in Delaware’s Jury Selection and Service Act. 66 DeLLaws ch. 5, § 1. Section 4513 provides:

The names of persons summoned for jury service shall be disclosed to the public and the contents of jury qualification forms completed by them shall be made available to the parties unless the Court determines that any or all of this information should be kept confidential or its use limited in whole or in part in any case or cases.

10 Del. C. § 4513 (emphasis added). Significantly, all parties have failed to note that this provision was modeled on virtually identical language contained in the Uniform Jury Selection and Service Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1970 and approved by the American Bar Association in 1972. It states:

The names of qualified jurors drawn from the qualified jury wheel and the contents of jury qualification forms completed by those jurors shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.

Uniform Jury Selection and Service Act, 13 U.L.A. 437, 454-55 (West 1986) (emphasis added). Currently, eleven states,¹⁵ including Delaware, have adopted nearly identical provisions granting trial courts discretion over public dissemination of jurors’ names. Colo.Rev.Stat. 13-71-110(5); 10 Del.C. § 4513; Haw.Rev.Stat. § 612-18 & 27; Id.Code § 2-210(5); Ind.Code Ann. 33-4-5.5-12(6); Md.Cts. & Jud.Proc.Code Ann. § 8-202(3); 14 Me.Rev.Stat.Ann. § 1254-A; Minn.Stat.Ann. § 593.42 subd. 5; Miss. Code Ann. § 13-5-32; N.D.Code 27-09.1-09; Utah Code Ann. 78-46-13(5).

These statutes give trial courts broad discretion over release of jurors’ names. Specifically, they authorize courts to keep jurors’ names confidential in the interest of justice and to limit such use in any case in whole or in part. That language is virtually identical to Delaware’s present statute and jury plan. Thus, the trial court’s Order, directing court personnel to keep jurors’ names confidential, is totally consistent with such statutory authority and the clear national and local history it represents. Whatever practice may exist in cases where no media attention is focused on the jury, our statute, with its surrounding history, is a clear statement of public policy that subordinates any general procedure to its specific mandate and purpose.

Gannett contends that the current Delaware statute is inapplicable for two reasons. First, it is claimed that the phrase “summoned for jury service” restricts the exercise of judicial discretion to control over the list of jurors who are sent jury summons. That argument places an artificial limitation on the trial court’s discretion based on a tortuous interpretation of the word “summoned”. When a juror is called to the jury box, he remains summoned for jury service. Second, Gannett claims the trial court lacks discretion over announcement of the jurors’ names because the discretionary language is applicable only to public dissemination of the juror qualification forms. We reject that claim because it is inconsistent with the plain language of the statute. Neither the Delaware statute nor the Uniform Act appears to limit the trial courts’ discretion to juror qualification forms,¹⁶ and we refuse to adopt such a strained construction based on an unsupported inference of legislative intent.

Gannett’s interpretation of the statute clearly ignores the powers conferred upon the Superior Court to keep jurors’ names confidential “in any instance”, or their use “limited in whole or in part.” We consider the former phrase to be synonymous with that in the uniform law — “in any case or cases” — while the latter, obviously, is identical. Generally, Delaware jurors are “summoned”, not for a particular case, but as part of a panel from which numerous juries may be drawn for a wide variety of civil and criminal trials. If the court’s powers were limited, as Gannett argues, only to this group, then the statutory language to which we have referred would be meaningless.

Given the overwhelming statutory history,¹⁷ we must reject Gannett’s claim that the historical practice in the nation, or in Delaware, requires announcement of jurors’ names. The historical sources do not support Gannett’s conclusion. Rather, the historical tradition gives trial courts discretion over such matters, which is reflected in express statutory provisions enacted by duly elected representatives of the people at the state and national levels. The Supreme Court has repeatedly referred to such enactments as additional evidence of a public tradition in constitutional right of access cases. Any general practice upon which Gannett relies, completely ignoring the broad national basis of our law, is, and must be, subordinate to statutory provisions clearly and validly expressing the public will.

Thus, Gannett has failed to carry its burden of establishing any historical tradition of constitutional dimension regarding public access to jurors’ names. While this should end the matter, we nonetheless analyze the remaining aspects of the Press-Enterprise II test in view of the novelty of the issues and for future guidance of trial courts in applying the proper standards.

IV.

The second part of Press-Enterprise IPs threshold test is whether public access to jurors’ names plays a significant positive role in the trial or selection of the jury. This “logic” criterion requires us to examine whether “the historical practice play[s] ‘an essential role’ in the proper functioning of government ... since otherwise the most trivial and unimportant historical practices ... would be chiselled in constitutional stone.” In re Reporters, 773 F.2d at 1332. For example, in Press-Enterprise II, the preliminary hearing in California was found to be “often the final and most important step in the criminal proceeding.” 478 U.S. at 12, 106 S.Ct. at 2742. Similarly, Richmond Newspapers noted that openness was an indispensable attribute of criminal trials. 448 U.S. at 569, 100 S.Ct. at 2823. By contrast, then-judge Scalia described as trivial the practice of reading judgments aloud in open court. In re Reporters, 773 F.2d at 1332. Cf. Williams v. Florida, 399 U.S. 78, 102, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970) (jury of twelve viewed as historical accident, unnecessary to effect purposes of jury system). When applied to the historical experience, therefore, the logic test helps “to distinguish between what the Constitution permits and what it requires.” DePasquale, 443 U.S. at 385, 99 S.Ct. at 2908.

At oral argument, Gannett claimed that announcement of juror names was the most important element of jury selection.¹⁸ It contends that announcement of prospective jurors’ names promotes both fairness and the appearance of fairness. Allegedly, it encourages fairness by allowing the public to serve as a further check on the possibility that a juror may have some undisclosed bias, which publication of his or her name may ultimately reveal. Gannett and amici curiae also maintain that announcement of jurors’ names promotes the appearance of fairness by enhancing public trust in the criminal justice system through open criminal proceedings.

By way of background, the fairness of jury selection in Delaware is adequately safeguarded in several respects. First, a panel of prospective jurors is randomly selected from lists of registered voters, supplemented with names from other sources. 10 Del.C. §§ 4507(a)(2), 4510; Jury Selection Plan §§ 5-8, 13 & 15. That group is initially screened when they complete juror qualification forms which request basic information such as name, address, and occupation.¹⁹ A second screening occurs during voir dire, when the trial court asks the jurors specific questions, prepared by the Court and counsel, to determine which jurors should be dismissed for cause. 10 Del.C. § 4511(a). See also Hughes, 490 A.2d at 1041 (“[T]he most effective and perhaps most critical” procedural safeguard available to protect and maintain juror impartiality in a highly publicized murder trial “is the careful use of voir dire.”). Finally, jurors undergo a third screening when counsel exercise peremptory challenges without regard to cause.

Counsel in Pennell were given the jurors’ names and other information contained on the qualification forms. The prospective jurors were subjected to the screening procedures described above, which in this case were more intense than usual. Under these circumstances, announcement of the jurors’ names is insignificant. “[T]he public interest in the administration of justice is protected by the participants in the litigation.” DePasquale, 443 U.S. at 383, 99 S.Ct. at 2907. Moreover, the proceedings were not closed. The public, including the press, attended and observed jury selection. Gannett’s fairness argument is based on the presumption that jurors will not respond truthfully, and therefore, the public requires a further safeguard, which it is claimed only the press can provide. We refuse to adopt such a cynical view of the criminal justice system. The courts, the State and the defendant have concurrent paramount concerns for, and obligations to assure, a fair trial. This includes a proper solicitude for the jury so that it is not subject to the extraneous influences of a media representative which is also engaged in the business of selling newspapers.²⁰ See also Sheppard, 384 U.S. at 353, 86 S.Ct. at 1517.

Gannett’s argument, that announcement of jurors’ names promotes fairness, confuses the defendant’s rights under the sixth amendment with the public’s rights under the first amendment. The press cannot rely on the sixth amendment’s guarantee of a fair trial to the defendant, particularly when courts have determined that criminal defendants may have a fair trial even without knowing jurors’ names. United States v. Tutino, 883 F.2d 1125 (2d Cir.1989); Scarfo, 850 F.2d at 1021-23. See also, Note, Anonymous Juries, 54 Fordham L.Rev. 981 (1986). Cf. United States v. Edmond, 886 F.2d 442 (D.C.Cir.1989). Courts have repeatedly upheld the use of anonymous juries against defendants’ sixth amendment challenges based on fair trial rights. We see no reason to afford the media greater rights of access to jurors’ names than the Constitution permits the parties to a trial. As the United States Court of Appeals for the Second Circuit has ruled:

What we are confronted with, then, is a voir dire procedure under which both the prosecutor and defense were equally in the dark as to names and addresses of the prospective panelists, and where neither side was told the exact ethnic background or religion of those persons. Both sides, however, had an arsenal of information about each person that was based on his responses to questions concerning his own life, as well as his attitudes about the issues that would arise in the case. This can hardly be deemed “inadequate”. The law as to jury selection is not so unbending that it cannot, or should not, be accommodated to the realities of modern day trials.... Clarence Darrow’s ideal has already yielded to what has been thought to be the greater necessity, i.e., the need to streamline the voir dire process by resting the control of it in the district judge, subject to demand that the essentials of the case should be the subject of inquiry. If that demand is satisfied, then so will have been the rights of the parties.

United States v. Barnes, 604 F.2d 121, 142-43 (2d Cir.1979) (citation and footnote omitted). The defendant clearly has an equal, if not greater, interest than the media in receiving a fair trial. Gannett’s attempt to distinguish these cases on factual grounds misses that vital point.

While there may be the rare case in which some salutary effect upon the jury selection process occurs by reason of the press’ access to jurors’ names, we consider that remote under these circumstances. The persons most directly involved — the trial judge, the defendant, and the State— were provided with the jurors’ names and other information. We cannot say that the appearance of fairness would have been significantly enhanced by announcement of jurors’ names in such a highly publicized setting. The trial court had a justified concern that the fairness of jury selection in the Pennell trial was endangered, not enhanced, by the extensive publicity Gan-nett had just recently focused upon the Lynch jury.

Gannett’s sweeping claim that announcement of jurors’ names promotes the appearance of fairness is a characteristic overstatement of the issue, and not without irony. All aspects of the trial were entirely open to the public. Except for space limitations, no one was denied access to the courtroom. Given the extraordinary publicity which Gannett itself had so recently fueled by the attention it gave the Lynch jury, it is perhaps more accurate to say that had the Pennell jurors’ names been announced in court, the public perception would have been one of concern for the jurors and the extraneous influences upon them which Gannett’s publicity invited. See Sheppard, 384 U.S. at 353, 86 S.Ct. at 1517 (jurors exposed “to expressions of opinion from both cranks and friends”). The trial court’s Order assured the public that the trial was fair without closing the proceedings to anyone. Contrary to the rather pietistic claims of Gannett and its amici curiae, there is nothing to suggest that such actions undermined public trust in the judicial system.

Thus, Gannett fails the logic part of Press Enterprise IPs threshold test. Announcement of jurors’ names in court promotes neither the fairness nor the perception of fairness, when the parties are provided with the jurors’ names and all proceedings are open to the public. It strains credulity to suggest that such an announcement was essential to the proper functioning of the trial. Having failed both parts of the Press-Enterprise II test, Gannett clearly has no qualified right of access to the jurors’ names.

y.

Since Gannett has not shown that a qualified first amendment right of access exists, the failure of the trial court to conduct an evidentiary hearing, or to apply Press-Enterprise II’s substantial probability test, does not, under these circumstances, mandate reversal. In the absence of a qualified first amendment right of access, the trial court’s decision to order court personnel to keep jurors’ names confidential was within its discretion. We find no abuse of that discretion.²¹

The trial court has an affirmative duty to control all aspects of pretrial and trial proceedings. The very recent prior media coverage of jurors in the Lynch trial created legitimate concerns that jurors in Pennell might be improperly influenced by extraneous factors or sources sufficient to endanger the defendant’s right to a fair trial. The Order responded to those concerns in a reasonable manner without imposing the more onerous strictures of sequestration or closure of the courtroom. The judgment of the Superior Court is AFFIRMED.

1 . When the order announcing our decision was issued on November 13, 1989, Pennell’s criminal trial was still in progress. Pennell has since been convicted on two counts of first degree murder. The jury could not reach a verdict on the third count. He has filed an appeal.

2 . The trial court compiled a list of thirty-five articles published in the News-Journal, alone, from the date of the indictment on November 30, 1988 to March 4, 1989, near the time of the pretrial suppression hearing. During the trial, which began on September 25, 1989, and ended with guilty verdicts and sentences of life imprisonment, imposed by the jury, on November 28, 1989, Gannett continued its extensive coverage. The case also was reported almost daily on radio and television, frequently with "live” coverage from the courthouse.

3 .The parties disagree about the date on which the Order became available to the public. Gan-nett claims that the Order was not docketed properly until October 5, 1989, the day after its Opening Brief was filed with this Court. The State and Pennell contend that the Order was placed in the publicly accessible file on July 31, 1989, only a few days after it was issued. The docket sheet reflects both possible dates. The Order was apparently not given a docket number until October 4, 1989, but it appears on the docket sheet between items "51” and "53”, reflecting a transaction date of July 31, 1989. In any event, Gannett became aware of the Order before jury selection began.

4 . During voir dire, the trial court asked prospective jurors whether they could perform their duties fairly and impartially if their names were made public. Only five of seventy-six potential jurors stated that they felt they could not be fair to the defendant if their names were publicly announced. Of the jurors selected for the final panel, none believed that they would be improperly influenced by public announcement of their names. However, Gannett acknowledged at the first oral argument that the jurors’ views on this subject were not controlling.

5 . Although we consider the standard applied by the trial court to be erroneous, our application of Press-Enterprise II, and the analysis thereunder, leads us to the same result reached by the Superior Court, albeit on different grounds.

6 . The first amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const, amend. I. The first amendment is applicable to the states through the fourteenth amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

7 . The sixth amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

U.S. Const, amend. VI.

8 . The Delaware Constitution provides:

All courts shall be open; and every man for an injury done him in his reputation, person, movable or immovable possessions, shall have remedy by the due course of law, and justice administered according to the very right of the cause and the law of the land, without sale, denial, or unreasonable delay or expense; and every action shall be tried in the county in which it shall be commenced, unless when the judges of the court in which the cause is to be tried shall determine that an impartial trial thereof cannot be had in that county. Suits may be brought against the State, according to such regulations as shall be made by law.

Del. Const, art. I, § 9.

9 . The Delaware Constitution provides in part: "The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty.” Del. Const, art. I, § 5. We have previously noted that this provision has the same scope as the federal first amendment. In re Opinion of the Justices, DeLSupr., 324 A.2d 211, 213 (1974). For simplicity, we will refer below only to the first amendment.

10 . The rules of evidence and ethical conduct lend further support to Sheppard. The Uniform Rules of Evidence, which have been adopted in Delaware, suggest that the trial court has an affirmative duty to limit outside influences on jurors. Generally, jurors may not testify about the jury’s deliberations, but Rule 606 abrogates that general rule whenever a juror testifies as to "whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Unif.R. Evid. 606. The Model Rules of Professional Conduct, recently adopted in Delaware, similarly prohibit lawyers from publicly disseminating information known or reasonably known to have a substantial likelihood of materially prejudicing a defendant’s right to a fair trial. Rule 3.6(a).

11 . The Supreme Court’s decisions refer to experience and tradition interchangeably in this context. Press Enterprise II, 478 U.S. at 8-10, 106 S.Ct. at 2740-41; Richmond Newspapers, 448 U.S. at 589-93, 100 S.Ct. at 2834-36 (Brennan, J., concurring). In our opinion, the crucial inquiry is whether the public has some expectation of a right of access. Whether that expectation derives from years of experience dating back to adoption or ratification of the Constitution or from a more recent tradition is inconsequential, so long as it is the type of experience or tradition that should be incorporated into the Constitution.

12 . At oral argument, Gannett's views on this were murky at best:

Justice Moore: Now you say that it’s this historic aspect. By what historic standard are you judging that, Delaware or nationally?

Mr. Elliott: Delaware.

Justice Moore: Well, does that then mean that the first amendment might be different in Delaware from a neighboring state?

Mr. Elliott: I don’t necessarily believe that. I think you have to look at the historic practice and what has taken place in this state.

Justice Moore: Well does — then, doesn’t that mean that the first amendment could be fifty different things?

Mr. Elliott: I think that the answer to that question is that it would be the same in all states.

Justice Moore: Well, how do you know that? Suppose for example — how do you know that? Mr. Elliott: Because the Supreme Court in Press-Enterprise dealt with a proceeding in California and adopted a test, and that test is applicable to—

Justice Moore: I understand that it’s applicable, but you say we’re going to look at Delaware history. Suppose Delaware in the last ten years had had a policy of not disclosing jurors’ names, but the forty-nine other states all did. So Delaware's first amendment rule would be different from the other forty-nine states?

Mr. Elliott: No, I don’t believe it would be. Justice Moore: Well, then, how do you square that with what you just told me?

Mr. Elliott: Because you have to look at — you look at the history but you also look at the purpose behind the proceeding.

Justice Moore: Well, where do you look? Do you look in Delaware? You said Delaware, in Delaware history, and that raises the question is there to be a potential for fifty different first amendment rules?

Mr. Elliott: I don’t believe there is.

Justice Moore: Well, then why would you look only at Delaware?

Mr. Elliott: Well, I think you’d want to look at our practice. You could look at practices in other jurisdictions, but I think what’s really, specifically relevant to this Court is the Delaware practice.

13 . While Wooley was an important guide to Delaware practice in the days of old common law pleadings, its vestigial significance to modern Delaware practice relates to executions upon judgments, mortgage foreclosures, and the extraordinary writs of certiorari, mandamus, prohibition, and quo warranto, none of which have anything to do with jury selection. Until 1948, when Delaware adopted new rules based on the Federal Rules of Civil and Criminal Procedure, Delaware courts still functioned under the Statutes of 27 Eliz. ch. 5 and 4 Anne ch. 16. It has been observed that in throwing off the “shackles of medieval scholasticism” in 1948, "[n]o other American jurisdiction, contemplating procedural change, could possibly have [had] farther to go.” Herrmann, The New Rules of Procedure in Delaware, 18 F.R.D. 327, 337 n. 16 (1956).

14 . It also has been suggested that trial courts have always retained inherent power to control the release of jurors’ names, even in the absence of a statute. If that is so, and we think it is, then this only further undercuts any notion of an historic practice of constitutional proportions, and buttresses the opposite conclusion.

15 . Eight of these jurisdictions, Colorado, Hawaii, Idaho, Indiana, Maine, Minnesota, Mississippi, and North Dakota, have adopted the Uniform Jury Selection and Service Act in its entirety. 13 U.L.A. at 437.

16 . Gannett’s restrictive interpretation of the statute requires the insertion of a comma after the first clause ("The names of prospective jurors shall be disclosed to the public”) to separate it from the discretionary language ("unless the Court determines that_”). If the legislature had intended to separate the clauses, it could easily have done so.

We note that Gannett also cites a Delaware statute, 10 Del.C. § 4518, in support of its contention that jurors’ names have historically been announced in court. That statute did not specifically require that jurors names be announced in court. In any event, it was repealed in 1975. 60 Del.Laws, c. 225, § 2.

17 . Again, we note that neither Gannett nor any other party to this appeal cited this complete statutory history to us.

18 . The following colloquy occurred:

Justice Moore: [The juror's identity] means more than knowing whether the juror is related to a person in the prosecution, whether the person has any views for or against capital punishment? That name is more important than those issues?

Mr. Elliott: I think it is very important. Justice Moore: Is it more important than those issues?

Mr. Elliott: I think yes.

19 . The Delaware statute and the Jury Selection Plan both describe information which requires the dismissal of prospective jurors from a jury panel. 10 Del.C. § 4509(b); Jury Selection Plan § 10. Among other things, jurors will be automatically disqualified if they do not read or speak English, are mentally or physically infirm, or have been convicted of a felony.

20 . We also observe that the National Center for State Courts is now preparing a manual on managing notorious cases, including issues of jury selection, jury security, and media and trial management. 17 Report of National Center for State Courts, back cover (Jan. 1990).

21 . We observe, however, that one of the problems which the trial judge could have avoided was the sua sponte exercise of his discretion without first notifying the State and defendant of his intended action. That issue was mooted by the hearing held after Gannett intervened. The better course in the future would be for the trial judge to exercise his discretion on such an important matter only after giving the State and defendant an opportunity to be heard.