Mass High Court Bars Newspaper From Show Cause Hearing

A recent decision by Massachusetts’ highest court may help to protect the privacy of individuals falsely accused of crimes by other citizens. The case, Eagle-Tribune Publishing Company v. Clerk-Magistrate of the Lawrence Division of the District Court Department, SJC-09665 (“Eagle-Tribune”), was issued by the Supreme Judicial Court on March 28, 2007. Law enforcement officials may benefit the most from the decision as police officers frequently are falsely accused of crimes by criminal defendants and can suffer public embarrassment from these false accusations.

The case discusses the public’s right to attend a “show cause” hearing, also known as a clerk’s hearing, which is a procedure that allows private citizens and police officers to apply for criminal process to issue against someone else. (The statutory basis for the procedure is G.L. c. 218, §35A.) The show cause hearing is held before a clerk-magistrate, who decides whether the evidence produced by the applicant shows probable cause that the accused committed a crime. Show cause hearings often are informal. The rules of evidence do not apply. The decision-maker is not a judge. The person accused of the crime has no right to appointed counsel at the hearing, though parties may retain private counsel to represent them. In many cases, criminal defendants use the show cause hearing procedure to allege crimes committed by the police officers who arrested them, whether or not the criminals have credible support for their claims. Criminal defendants may file such a claim as leverage to obtain dismissal of the charges against them.

The Eagle-Tribune case, involved a stabbing of an underage patron in a nightclub. The police applied for issuance of criminal process against the corporate owner of the club and a show cause hearing was scheduled. When the local newspaper sought to attend the hearing, the clerk-magistrate refused and declared the hearing private. The newspaper appealed, and the SJC decision is the ultimate response to that appeal.

The SJC found that the clerk-magistrate was well within his rights to declare the hearing private. Specifically, the court declared that there is no right under the First Amendment of the U.S. Constitution to public access to show cause hearings. The court provided three main reasons for this conclusion: (1) there is no established history or practice of public access to such hearings; (2) the show cause hearing is more like a grand jury proceeding (which is private) than a probable cause hearing (which is public), because the show cause hearing occurs before there are any criminal charges against the individual (as in the grand jury), while the probable cause hearing involves someone who is already charged with a crime; and (3) there is a strong public policy in favor of protecting the privacy and reputations of individuals who have been falsely accused of crimes from public exposure; according to the court, one important goal of the hearing is to “screen out baseless complaints with minimal harm to the accused’s reputation.”

Although the SJC found no First Amendment right for access to show cause hearings, it did state that public access is permitted and may even be desirable in some cases, when the legitimate interest of the public in the proceeding outweighs the right of privacy. In other words, the clerk magistrate decides whether a particular show cause hearing is open or closed. Although the court did not rule directly on this issue, it did provide some guidance on how it might rule in the future if a clerk-magistrate makes a show cause hearing public over the party’s objection. First, it is relevant if the underlying matter is already public, through, for example, news accounts. Then, the right of privacy arguably has been compromised already, and a public show cause hearing will not likely increase any damage to the accused individual’s reputation. Second, if the accused is a public official or highly visible person, the public interest in the matter may be more significant than if the accused is a private citizen. (The court does cite with approval the District Court Standards of Judicial Practice: The Complaint Procedure (1975), which states that “[t]he sole fact that the person complained against is a public official or otherwise well known is not in and of itself . . . reason for the hearing to be public." Commentary to standard 3:16.)

In sum, the Eagle-Tribune case is a mixed blessing for individuals, such as law enforcement officers, whose professions put them in contact with citizens who may have a reason to accuse them of crimes falsely. On the one hand, the clerk-magistrate has the right to make the hearing private, because the First Amendment does not give anyone the right to make it public. On the other hand, the clerk-magistrate has the power to make the hearing public over the objections of the parties under some circumstances.

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