SUPREME COURT OF THE UNITED STATES EL VOCERO DE PUERTO RICO (CARIBBEAN INTERNATIONAL NEWS CORP.), ET AL., PETITIONERS v. PUERTO RICO ET AL. ____ ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF PUERTO RICO No. 92-949. Decided May 17, 1993 PER CURIAM. Under the Puerto Rico Rules of Criminal Procedure, an accused felon is entitled to a hearing to determine if he shall be held for trial. P. R. Laws Ann., Tit. 34, App. II, Rule 23 (1991). A neutral magistrate presides over the hearing, People v. Opio Opio, 104 P. R. R. (4 Official Trans- ______ _________ lations 231, 239) (1975), for which the defendant has the rights to appear and to counsel. Rule 23(a)-(b). Both the prosecution and the defendant may introduce evidence and cross-examine witnesses, Rule 23(c), and the defendant may present certain affirmative defenses. People v. Lebro ' n Lebro ' n, 116 P. R. R. ______ _____________ (16 Official Translations 1052, 1058) (1986). The magistrate must determine whether there is probable cause to believe that the defendant committed the offense charged. Rule 23(c) provides that the hearing "shall be held privately" unless the defendant requests otherwise. Petitioner Jose ' Purcell is a reporter for petitioner El Vocero de Puerto Rico, ________________________ the largest newspaper in the Commonwealth. By written request to respondents District Judges, he sought to attend preliminary hearings over which they were to preside. In the alternative, he sought access to recordings of the hearings. After these requests were denied, petitioners brought this action in Puerto Rico Superior Court seeking a declaration that the privacy provision of Rule 23(c) violates the First Amend- 2 EL VOCERO DE PUERTO RICO v. PUERTO RICO ____ ment, applicable to the Commonwealth through the Fourteenth Amendment, (Ftnote. 1) and an injunction against its enforcement. (Ftnote. 1) Petitioners based their claim on Press-Enterprise Co. v. Superior Court of ____________________ _________________ California, Riverside County, 478 U. S. 1 (1986), which addressed a California ____________________________ law that allowed magistrates to close preliminary hearings quite similar in form and function to those held under Rule 23 if it was reasonably likely that the defendant's ability to obtain a fair hearing would be prejudiced. Id., at 12, ____ 14. Applying the "tests of experience and logic," id., at 9, of Globe Newspaper ___ _______________ Co. v. Superior Court of Norfolk County, 457 U. S. 596 (1982), Press-Enterprise ___ ________________________________ ________________ struck down the California privacy law on the grounds that preliminary criminal hearings have traditionally been public, and because the hearings at issue were "sufficiently like a trial," 478 U. S., at 12, that public access was "essential to the[ir] proper functioning. . . ." Ibid. _____ In affirming the dismissal of petitioners' suit, a divided Supreme Court of Puerto Rico found that Press-Enterprise did not control the outcome because of ________________ several differences between Rule 23 hearings and the California hearings at issue there. App. to Pet. for Cert. 129. (Ftnote. 2) It thus pro- (Ftnote. 2) ceeded to determine the constitutionality of Rule 23 hearings by application anew of the Globe Newspaper tests. The court concluded that closed hearings are _______________ compatible with the unique history and traditions of the Commonwealth, which display a special concern for the honor and reputation of the citizenry, and that open hearings would prejudice defendants' ability to obtain fair ____________________ 1) The Free Speech Clause of the First Amendment fully applies to Puerto 1) Rico. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 _________________________________ __________________________ U. S. 328, 331, n. 1 (1986). 2) Specifically, the court addressed the Commonwealth's burden of proof, 2) the rules governing the parties' access to, and presentation of, certain evidence, the fact that an indictment follows, rather than precedes, the preliminary hearing, and the ability of the prosecution to present the matter de __ novo before a higher court in cases where the magistrate finds no probable _____ cause. App. to Pet. for Cert. 112-129. EL VOCERO DE PUERTO RICO v. PUERTO RICO 3 ____ trials because of Puerto Rico's small size and dense population. The decision below is irreconcilable with Press-Enterprise: for precisely _________________ the reasons stated in that decision, the privacy provision of Rule 23(c) is unconstitutional. (Ftnote. 3) The distinctions drawn by the court (Ftnote. 3) below are insubstantial. In fact, each of the features cited by Press- ____ ______ Enterprise in support of the finding that California's preliminary hearings were __________ "sufficiently like a trial" to require public access is present here. Rule 23 hearings are held before a neutral magistrate; the accused is afforded the rights to counsel, to cross-examination, to present testimony, and, at least in some instances, to suppress illegally seized evidence; (Ftnote. 4) (Ftnote. 4) the accused is bound over for trial only upon the magistrate's finding probable cause; in a substantial portion of criminal cases, the hearing provides the only occasion for public observation of the criminal justice system; (Ftnote. 5) and no jury is present. Cf. 478 U. S., at (Ftnote. 5) 12-13. Nor are these commonalities coincidental: as the majority noted, the Rule's drafters relied on the California law at issue in Press-Enterprise as one source ________________ of Rule 23. App. to Pet. for Cert. 93, n. 26. At best, the distinctive features of Puerto Rico's preliminary hearing render it a subspecies of the provision this Court found to be infirm seven years ago. Beyond this, however, the privacy provision of Rule 23(c) is more clearly suspect. California law allowed magistrates to close hearings only upon a determination that there was a substantial likelihood of prejudice to the defendant, yet the Press-Enterprise ________________ Court found this standard insufficiently exacting to protect public access. 478 U. S., at 14-15. By contrast, Rule 23 ____________________ 3) The First Circuit Court of Appeals has since found this provision 3) unconstitutional. See Rivera-Puig v. Garcia-Rosario, 983 F. 2d 311 (1992). ___________ ______________ 4) The admissibility of illegally-seized evidence apparently is an open 4) question in Puerto Rico law. See App. to Pet. for Cert. 107. 5) See Id., at 204-205 (Herna ' ndez Denton, J., dissenting). 5) ____ 4 EL VOCERO DE PUERTO RICO v. PUERTO RICO ____ provides no standard, allowing hearings to be closed upon the request of the defendant, without more. The Puerto Rico Supreme Court's reliance on Puerto Rican tradition is also misplaced. As the First Circuit Court of Appeals has correctly stated, the "experience" test of Globe Newspaper does not look to the particular practice of _______________ any one jurisdiction, but instead "to the experience in that type or kind of ____ ____ hearing throughout the United States . . . ." Rivera-Puig v. Garcia-Rosario, ___________ ______________ 983 F. 2d 311, 323 (1992) (emphasis in original). The established and widespread tradition of open preliminary hearings among the States was canvassed in Press-Enterprise and is controlling here. 478 U. S., at 10-11, and nn. 3-4. ________________ The concern of the majority below that publicity will prejudice defendants' fair trial rights is, of course, legitimate. But this concern can and must be addressed on a case-by-case basis: "If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." Id., at 14. ___ The petition for certiorari is granted and the judgment of the Supreme Court of Puerto Rico is Reversed. ________