In re WMUR Channel 9

813 A.2d 455, 148 N.H. 644, 31 Media L. Rep. (BNA) 1746, 2002 N.H. LEXIS 191
CourtSupreme Court of New Hampshire
DecidedDecember 13, 2002
DocketNo. 2002-181
StatusPublished
Cited by2 cases

This text of 813 A.2d 455 (In re WMUR Channel 9) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re WMUR Channel 9, 813 A.2d 455, 148 N.H. 644, 31 Media L. Rep. (BNA) 1746, 2002 N.H. LEXIS 191 (N.H. 2002).

Opinions

Nadeau, J.

By petition for writ of certiorari, the petitioners, WMUR Channel 9, the Boston Globe and the New Hampshire Association of Broadcasters, request that the court reverse a Superior Court (Smith, J.) order prohibiting them from photographing, recording or broadcasting proceedings in State of New Hampshire v. Robert Tulloch. When the [646]*646defendant in that case decided to plead guilty, we granted the petitioners’ emergency request for media access to the defendant’s change of plea hearing, as that proceeding was not a jury trial but rather a hearing on a guilty plea to an offense that carries a mandatory sentence of life imprisonment without parole. We subsequently asked the parties to brief the important issues raised by the original petition because they are likely to arise again. We now grant the petition for certiorari as follows and establish guidelines for trial courts to follow when exercising their discretion to exclude cameras or other electronic media from the courtroom.

This case generated intense national publicity after two Vermont teenagers brutally robbed and murdered two distinguished Dartmouth College professors in their home in January 2001. From the outset, members of the broadcast and print media unsuccessfully sought electronic access to the pre-trial proceedings in this case. The trial judge, however, had an administrative policy prohibiting such access in courtrooms in which he presides in Grafton and Coos Counties. Consistent with this policy and pursuant to Superior Court Rule 78(a), the trial judge denied each of the petitioners’ requests without a hearing. In the denials, the trial judge explained his reasons for the administrative policy and for his denial of each petitioner’s request: the potential infringement of the defendant’s constitutional right to a fair trial, the potential for trial participants to alter their conduct in a nationally televised proceeding, the potential for the trial to become a “media circus,” and the perceived inadequacy of the Grafton County court facilities to accommodate the electronic media.

The petitioners challenge each of the trial court’s rulings, as well as the constitutional validity of the administrative policy applied in Grafton and Coos Counties. The petitioners argue that the New Hampshire and United States Constitutions, and the State and federal common law, establish presumptive rights for the media to have cameras in the courtroom during all phases of trial, and any person seeking to prohibit access should bear the burden of proving otherwise. They conclude, therefore, that the administrative policy and the trial court’s orders in this case are invalid. Finally, the petitioners ask us to establish guidelines for trial courts to apply when deciding whether the electronic media should be prohibited from the courtroom. The attorney general and the New Hampshire Public Defender agree with the trial court’s administrative policy and closure order, arguing the press has no right, constitutional or otherwise, to have cameras in the courtroom. They further oppose any changes to the existing policy set forth in Superior Court Rule 78(a).

[647]*647At the outset, we reject the petitioners’ State and federal constitutional arguments because there is neither a constitutional prohibition against nor a constitutional presumption in favor of allowing cameras and electronic media in our courtrooms. See Chandler v. Florida, 449 U.S. 560, 583 (1981); Nixon v. Warner Communications, Inc., 435 U.S. 589, 610 (1978); see also 1590 Broadcasting Corp. v. Pub. Lic. Util. Comm’n, 113 N.H. 258, 260-61 (1973).

Our State Constitution gives the press a presumptive right of access to judicial proceedings and court records, limited, however, by the necessity that it be balanced against a criminal defendant’s fundamental right to a fair trial. See Keene Publishing Corp. v. Cheshire County Super. Ct., 119 N.H. 710, 711 (1979); Keene Pub. Corp. v. Keene Dist. Ct., 117 N.H. 959, 961 (1977); N.H. Const. pt. I, art. 15. In this case, the petitioners were given unrestricted access to be present, to gather information and to report upon the proceedings in State v. Tulloch; the only limitation the trial court imposed was its prohibition of cameras or other electronic media forms for dissemination of the information gathered. Such a limitation does not infringe upon the petitioners’ constitutional rights of access or gathering news. See N.H. Const. pt. I, art. 22. Likewise, allowing cameras or other electronic media into a courtroom would not automatically infringe upon a criminal defendant’s right to a fair trial unless that defendant could show either actual or inherent prejudice from the electronic media presence. See State v. Smart, 136 N.H. 639, 654-59, cert. denied, 510 U.S. 917 (1993). Because the defendant did not proceed to trial in this case, we cannot address such a purely factual inquiry. We do, however, address the remainder of this petition under our authority over the practices and procedures of the trial court. See State v. McGlew, 139 N.H. 505, 508-09 (1995). While the concurrence would have us refrain from exercising our authority in this case, we do so to provide guidance on these important issues, which have been the subject of much national debate with divergent conclusions and the subject of many trial court orders with conflicting results. In the past, when dealing with troublesome issues arising out of trial court evidentiary rules and jury instructions we have noted that,

“mindful of the uncertainties spawned by continued litigation, and aware of the importance of a smooth functioning criminal justice system, we exercise our supervisory authority over the trial courts of New Hampshire ... [to] instruct those courts” on this troublesome issue.

Id. (evidentiary rule) (quoting State v. Wentworth, 118 N.H. 832, 838 (1978) (jury instruction)) (internal brackets and ellipses omitted).

[648]*648Until we adopted Supreme Court Rule 19 and Superior Court Rule 78 in 1977, cameras were not permitted in New Hampshire courtrooms. With adoption of these rules, however, New Hampshire became one of the first States to permit cameras in any courtrooms on a permanent basis. See Chandler v. Florida, 449 U.S. at 565 n. 5; see also Annotation, Media Coverage of Court Proceedings, 14 A.L.R. 4TH 121, 127-28 (1982).

Supreme Court Rule 19 assumes cameras and electronic media will be allowed to record any oral appellate proceedings, with prior notice to the clerk of court and consent from the justices. In contrast, Superior Court Rule 78(a) assumes cameras will not be allowed in any courtroom unless they are specifically allowed by an order of the presiding justice. Rule 78 does, however, include guidelines for a presiding justice to follow if he or she does issue an order to allow cameras into the courtroom. The guidelines recognize that such a judicial decision is based upon the law and the exercise of discretion, which ultimately must ensure that the media neither distract trial participants nor detract from the integrity of the proceedings.

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Bluebook (online)
813 A.2d 455, 148 N.H. 644, 31 Media L. Rep. (BNA) 1746, 2002 N.H. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wmur-channel-9-nh-2002.