PASHMAN, J., concurring.

The issues which these cases raise are of fundamental importance. They provide a matrix for considering the interplay between two of our most basic constitutional guarantees — free speech and fair trial — which are also, as Mr. Justice Black correctly noted, "two of the most cherished policies of our civilization." Bridges v. California, 314 U.S. 252, 260, 62 S.Ct. 190, 192, 86 L.Ed. 192, 201 (1941).

I

As the majority concludes, these appeals should not be dismissed as moot. Whether or not they are technically moot, the issues are appropriate for resolution for two reasons. First, they fall within the category of cases which are "capable of repetition, yet evading review." See, e.g., Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, 161 (1973). Since these orders are intended and are necessary only for the duration of the trial, they would normally expire by their own terms before this Court could consider such a case. Yet, the parties in these appeals — the State, the Public Defender, and various press associations — will inevitably be faced with recurrences of this problem unless the Court acts.

Second, the overriding importance of these questions out-weighs any interest that we might have in disposing of the instant cases on grounds of mootness. See, e.g., Housing Authority of Newark v. West, 69 N.J. 293 , 295-296 (1976); Dunellen Bd. of Ed. v. Dunellen Ed. Ass'n, 64 N.J. 17 , 21 (1973); Busik v. Levine, 63 N.J. 351, 364 (1973), app. dismissed 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973); John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576 , 579 (1971); Bd. of Ed. E. Brunswick Tp. v. Coun. E. Brunswick, 48 N.J. 94 , 109 (1966); State v Perricone, 37 N.J. 463 , 469 (1962), cert. den. 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); Sente v. Mayor and Mun. Coun. Clifton, 66 N.J. 204 , 209 (1974) (Pashman, J., dissenting). The vigorous debate by the parties has focused the Court's attention on both the pertinent factual and legal issues and has developed the ramifications of these questions.

This second rationale applies not only to the protective orders imposed by the trial courts; it also militates in favor of discussing various alternatives to such orders. This is not a case where the issue sought to be decided has not been briefed by the parties and does not appear in the record. See Bd. of Ed. of Elizabeth v. City Coun. of Elizabeth, 55 N.J. 501 , 509 (1970); Oliver v. Russo, 29 N.J. 418 , 420 (1959). Although none of these alternatives was actually used by the trial judges involved in these cases, in both instances the various proposals discussed by the majority were considered. Judge Diana, in State v. Allen, indicated that he was aware of the possibility of changing venue, utilizing a foreign or a sequestered jury, cautionary instructions, or a combination of such procedures. In State v. Hughes and Thompson, Judge Moore considered the possibility of using in camera proceedings as a device to keep potentially inadmissible evidence from the jurors. These alternative procedures have also received ample attention in the briefs submitted to the Court.

Admittedly, the record is devoid of any indication of how these procedures actually work, and thus our discussion is necessarily speculative in certain respects. Nevertheless, we are guided by the wealth of available literature and other cases which treat the potential impact of such procedures. For a general discussion of such alternatives, see, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Nebraska Press Association v. Stuart, supra, (Brennan, Stewart, Marshall, JJ., concurring); United States v. Schiavo, 504 F.2d 1 (3 Cir.) (en banc) (Aldisert, J., dissenting), cert. den. 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974); American Bar Ass'n, Minimum Standards For Criminal Justice, Fair Trial and Free Press (Approved Draft 1968); Association of the Bar of the City of New York Special Comm. on Radio, Television, and the Administration of Justice, Freedom of the Press and Fair Trial (1967); Committee on the Operation of the Jury System, "Report on the 'Free Press-Fair Trial' Issue," 45 F.R.D. 391 (1968); Broeder, Voir Dire Examinations: An Empirical Study," 38 S. Cal. L. Rev. 503 (1965); Babcock, "Voir Dire: Preserving 'Its Wonderful Power,'" 27 Stan. L. Rev. 545 (1975); Comment, "Gagging the Press in Criminal Trials," 10 Harv. Civ. Rights-Civ. Lib. L. Rev. 608 (1975); Comment, "Sequestration: A Possible Solution to the Free Press-Fair Trial Dilemma, 23 Am. U.L. Rev. 923 (1974); Stagna, "Judicial Protection of the Criminal Defendant Against Adverse Press Coverage," 13 Wm. Mary L. Rev. 1 (1971). Furthermore, this Court has considered such procedures before. See In re National Broadcasting Company, 64 N.J. 476 (1974) (courtroom sketches); State v. Jackson, 43 N.J. 148 , 163-164 (1964), cert. den. 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965) (exclusion of press and public); State v. Van Duyne, 43 N.J. 369 (1964), cert. den. 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965) (whether publicity prejudiced jury); State v. Gallicchio, 51 N.J. 313 (1968), cert. den. 393 U.S. 912, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968) (effect of lapse of time between publicity and trial); State v Kavanaugh et al., 52 N.J. 7 (1968), cert. den. 393 U.S. 924, 89 S.Ct. 254, 21 L.Ed.2d 259 (1968) (restricting attorney from circulating material to the media); State v. Curcio, 23 N.J. 521 (1957) (curative instructions).

Since it is unlikely that any single trial will present a factual situation involving more than one of the alternative measures outlined by the majority, abstention in this case would require us to consider the various options in a piecemeal fashion. As Chief Justice Weintraub noted in Busik v. Levine, supra, a court may treat an issue expansively if such treatment is warranted by the public interest:

[T]here is no constitutional mandate that a court may not go beyond what is necessary to decide a case at hand. Whether an issue will be dealt with narrowly or expansively calls for a judge's evaluation of many things, including the need for guidance for the bar or agencies of government or the general public. To that end, the Court may express doubts upon existing doctrines, thereby inviting litigation, or may itself raise an issue it thinks should be resolved in the public interest, or may deliberately decide issues which need not be decided when it believes that course is warranted.

[ 63 N.J. at 363-364; citations omitted.]

Finally, by suggesting procedures for keeping inviolate First and Sixth Amendment guarantees, we avoid future infringements upon those rights. Not only can we avoid the waste of judicial resources which would result from a decision to consider each alternative on a case-by-case basis, but we can avoid the harm to both defendants and the public which those appeals would inevitably be attempting to remedy.

II

A.

There can be little doubt that the trial courts' orders in these cases are unconstitutional under Nebraska Press Assoc. v. Stuart, supra, and Oklahoma Publishing Co. v. District Court In and For Oklahoma County, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977). In the Nebraska case the Court held that a judge could not prevent the press from reporting or commenting upon any information derived from public court proceedings or records stemming from the brutal murder of six persons in Sutherland, Nebraska, a town of about 800 people. Chief Justice Burger, writing for the majority, found that the case did not present an irreconcilable conflict between the First and Sixth Amendments, and that the State had failed to meet the "heavy burden imposed as a condition to securing a prior restraint." 427 U.S. at 570, 96 S.Ct. at 2808, 49 L.Ed.2d at 704. In the Oklahoma case, the Court applied the Nebraska holding to an attempt by Oklahoma authorities to prevent reporters from publishing the name and pictures of a juvenile. Although his name and picture were obtained during a public pretrial proceeding and his subsequent departure from the courthouse, the trial court refused to allow their disclosure in the news. Relying upon Nebraska, the Supreme Court held that the information in question had been "publicly revealed in connection with the prosecution of the crime" and that therefore the District Court's order abridged the freedom of the press. 430 U.S. at 310, 97 S.Ct. at 1046.

Justice Brennan concurred in Nebraska Press Assoc. v. Stuart, supra, in an opinion in which Justices Marshall and Stewart joined. He wrote: The right to a fair trial by a jury of one's peers is unquestionably one of the most precious and sacred safeguards enshrined in the Bill of Rights. I would hold, however, that resort to prior restraints on the freedom of the press is a constitutionally impermissible method for enforcing that right; judges have at their disposal a broad spectrum of devices for ensuring that fundamental fairness is accorded the accused without necessitating so drastic an incursion on the equally fundamental and salutary constitutional mandate that discussion of public affairs in a free society cannot depend on the preliminary grace of judicial censors.

[ 427 U.S. at 572, 96 S.Ct. at 2809, 49 L.Ed.2d at 705]

I agree with this statement in all respects, and believe that it amply supports his conclusion that "[d]amage to . . . Sixth Amendment right[s] could never be considered so direct, immediate and irreparable, and based on such proof rather than speculation," that it would sustain a prior restraint on the press. 427 U.S. at 604, 96 S.Ct. at 2824, 49 L.Ed.2d at 724.

Any inquiry into this area must begin with the long list of cases which have invalidated prior restraints. Foremost among them is Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) where Chief Justice Hughes stated:

In determining the extent of the . . . [First Amendment], it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication.

[ 283 U.S. at 713, 51 S.Ct. at 630, 75 L.Ed. at 1366 ]

See also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936); Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879 (1907). Underlying prior restraints is the notion of censorship. Southeastern Promotions, Ltd. v. Conrad, supra; Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 939, 22 L.Ed.2d 162, 167 (1969); Staub v. Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302, 311 (1958); Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 at 954 (1938).

In keeping with the disdain for prior restraints, the Supreme Court has consistently held that "'[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'" Pell v. Procunier, 417 U.S. 817, 832, 94 S.Ct. 2809, 41 L.Ed.2d 495, 507 (1974); New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Near v. Minnesota, supra. Yet, while the Court has indicated that the prohibition against prior restraints is not absolute, Near v. Minnesota, supra, 283 U.S. at 716, 51 S.Ct. 625, it very nearly approaches that point. The "military security" exception outlined in Near v. Minnesota, supra, presents the only occasion in which the government might meet its burden of proof in justifying a prior restraint. The Court in Near explained:

'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

[ 283 U.S. at 716, 51 S.Ct. at 631, 75 L.Ed. at 1367 ]

Yet even this exception is narrowly confined. In New York Times Co. v. United States, supra, the Court considered a prior restraint against publishing the famous "Pentagon Papers." Despite warnings by Justice Blackmun that publication of documents relating to this country's role in Viet Nam might impede efforts to negotiate an end to the war, with the result that additional soldiers might be killed, alliances ruined, and United States prisoners prevented from returning home, the Court held the prior restraint to be unconstitutional. Two of the Justices in that case, Black and Douglas, took an absolute position, finding that the First Amendment "leaves . . . no room for governmental restraint on the press." 403 U.S. at 720, 91 S.Ct. at 2144, 29 L.Ed.2d at 828 (Douglas, Black, JJ., concurring); footnote omitted. Justices Stewart and White argued that the government had failed to show that publication would result in "direct, immediate, and irreparable damage" to the country, 403 U.S. at 730, 91 S.Ct. at 2149, 29 L.Ed.2d at 834 (Stewart, White, JJ., concurring), even though they found that publication of the documents might "do substantial damage to public interests." 403 U.S. at 731, 91 S.Ct. at 2150, 29 L.Ed.2d at 834-835 (White, Stewart, JJ., concurring). Finally, Justice Brennan emphasized the speculative nature of the Government's proofs and concluded that it had failed to demonstrate that the prior restraint in that case fell within the " Near exception:"

Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.

[ 403 U.S. at 726-727, 91 S.Ct. at 2148, 29 L.Ed.2d at 832.]

Thus, the six Justices joining in the per curiam opinion in the New York Times case expressly held that the Government must show some type of impending direct and immediate harm, of a grave nature, before a prior restraint will issue. And two of those six indicated that not even this would suffice. In the present case the State has demonstrated no such interest; it has not even shown that restrictions on publication were necessary in the context of the two criminal trials with which we are concerned.

B.

As Justice Brennan noted in the New York Times case, the problem with prior restraints is that they require speculation as to the harm which will result from publication. See 403 U.S. at 725-727, 91 S.Ct. at 2147-2148, 29 L.Ed.2d at 831-832 (Brennan, J., concurring). Yet prejudice in criminal trials cannot be presumed merely by virtue of the fact that reports of events related to the proceedings will be published. This Court considered that problem in State v. Van Duyne, supra. The defendant in that case was accused and convicted of murdering his wife. Among other challenges to his conviction, defendant asserted that prejudicial stories appearing in local papers while the jury was being drawn deprived him of a fair trial. The trial judge in that case had allowed liberal questioning of the jurors to determine if they had seen the articles. Although various prospective jurors had stated that they were aware of the reports, only those who had indicated that they had formed an opinion and could not decide the case on the basis of the evidence were excused. This Court refused to overturn the conviction, noting that it had failed to find "sufficient evidence that the newspaper articles of themselves prevented a fair trial or that they so infected the minds of some of the jurors as to leave them biased against the defendant." 43 N.J. at 386.

The burden which must be met in showing jury prejudice from publication supports the notion that First and Sixth Amendment guarantees need not be interpreted as representing irreconcilable interests. That standard must be drawn to reflect the fact that we live in an informed society, and that immediate and comprehensive coverage of newsworthy events is a commonplace occurrence. In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) the Court found:

In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.

[ 366 U.S. at 722, 81 S.Ct. at 1642, 6 L.Ed.2d at 756 ]

Similarly, in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244, as long ago as 1878 the Court stated:

In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect of its merits.

[ 98 U.S. at 155-156, 25 L.Ed. at 246]

On the other hand, the defendant's interest in being judged by a jury capable of deciding the case solely on the basis of the evidence adduced in court cannot be abridged. See, e.g., Sheppard v. Maxwell, supra, 384 U.S. at 351, 86 S.Ct. at 1516, 16 L.Ed.2d at 613 ; Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Irvin v. Dowd, supra, 366 U.S. at 723-724, 81 S.Ct. at 1642-1643, 6 L.Ed.2d at 756-757. While in earlier cases the United States Supreme Court had suggested the necessity of showing actual prejudice resulting from newspaper publicity, Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268, 276 (1942) (referring to "the burden of showing essential unfairness . . . as a demonstrable reality."); Darcy v. Handy, 351 U.S. 454, 76 S.Ct. 965, 100 L.Ed. 1331 (1956); Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952), later cases have indicated that a probability of unfairness is sufficient. Sheppard v. Maxwell, supra; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). As we noted in State v. Van Duyne, supra, to result in a prejudicial verdict, publicity must prevent the jurors from reaching a fair determination of the defendant's guilt or innocence based upon the evidence which has been shown to them at trial. While a finding of prejudice need not be limited to cases involving this circumstance, a court may take into account the fact that the published information was not admitted into evidence at trial. State v. Van Duyne, supra, 43 N.J. at 384; State v. Trantino, 45 N.J. 37 , 40 (1965), cert. den. 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966), reh. den. 383 U.S. 922, 86 S.Ct. 901, 15 L.Ed.2d 679 (1966).

In the instant cases, there has been no showing that such prejudice would have resulted if the prior restraints had not been issued. In both cases the judges issued the "gag" orders before deciding whether the evidence was admissible. In the Hughes and Thompson case, the trial judge issued the order prior to conducting a hearing on the testimonial capacity of a witness. In the Allen case, the trial judge issued the order before holding an evidentiary hearing on the defendant's confession and an inculpatory statement by a co-defendant. The judge indicated that he was not concerned with the problem of pre-trial publicity generally, but issued the protective "gag" solely because of the possibility of prejudice stemming from the statements. In both cases, the judges acted without knowing the extent to which the restricted information would be covered in the press, and without any means of assessing what impact, if any, it might have had on any of the jurors if they happened to see the reports. In both cases the judges avoided the problem of determining whether newspaper accounts would have prevented the jury from reaching an untainted verdict; instead they engaged in the speculative type of reasoning which underlies our distrust of prior restraints on the press. See ante at 153 of 72 N.J. (Pashman, J., concurring).

C.

While there has been much debate over the argument that the press should receive greater access than the general public to sources and newsworthy events, see, e.g., Pell v. Procunier, supra; Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974) (companion case); Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Comment, "The Right of the Press to Gather Information After Branzburg and Pell," 124 U. Pa. L. Rev. 166 (1975); Note, "The Rights of the Public and the Press to Gather Information," 87 Harv. L. Rev. 1505 (1974); Note, "Public and Press Rights of Access to Prisoners after Branzburg and Mandel," 82 Yale L.J. 1337 (1973); Note, "The Right of the Press to Gather Information," 71 Colum. L. Rev. 838 (1971); Wiggins, "The Public's Right to Public Trial," 19 F.R.D. 25 (1955), that question is simply not implicated in this case. The public nature of a trial is sufficient to sustain the press's claim to report court proceedings.

While it is not necessary to extend the principle to every proceeding or every type of case, it can be safely asserted that a trial is a public proceeding. The public interest in learning what transpires during court proceedings has been reaffirmed on numerous occasions. The Court in Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947) stated the matter simply: "What transpires in the court room is public property." Id. at 374, 67 S.Ct. at 1254, 91 L.Ed. at 1551 . The relationship between freedom of the press and the public interest in open trials was eloquently stated by Justice Clark in Sheppard v. Maxwell:

The principle that justice cannot survive behind walls of silence has long been reflected in the "Anglo-American distrust for secret trials." . . . A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

[ 384 U.S. at 349-350, 86 S.Ct. at 1515, 16 L.Ed.2d at 613 ; citation omitted]

See Wigmore, Evidence (Chadbourn rev. 1976), § 1834, discussing the underlying reasons for making trials public.

The majority in the Nebraska and Oklahoma cases emphasized the fact that "once a public hearing had been held, what transpired there could not be subject to prior restraint." 427 U.S. at 568, 96 S.Ct. at 2807, 49 L.Ed.2d at 703. However, Justice Brennan's analysis in Nebraska goes beyond the majority in a significant respect by emphasizing the importance of press coverage of events leading up to and surrounding the trial process. Such coverage may perform numerous beneficial functions such as exposing improper methods of law enforcement officials and judges, thereby leading to movements for reform; informing the public of action which is being taken in individual cases, thus furthering the democratic processes where political corruption is charged and allaying fears where it is thought that the suspect may still be at large; generating crucial debate on the criminal justice system as a whole by pointing out that certain persons had not been prosecuted or had received only mild sentences; and making the public aware of the prevalence of certain types of crimes, particularly where they are of a political nature or indicate the possibility of wide-spread government corruption. See 427 U.S. at 606, 96 S.Ct. at 2825, 49 L.Ed.2d at 725. To these might be added benefits which are felt in the trial itself. As Wigmore noted, public scrutiny improves the quality of testimony by discouraging perjury; it influences the judge, jury and counsel to act more conscientiously; and finally, it increases the respect for the law through an "intelligent acquaintance" with the administration of justice. Wigmore, supra, § 1834 at 435-438.

III

A.

There is no reason to believe that both trial judges did not have adequate alternative means of protecting the defendants' Sixth Amendment rights to an impartial jury. Even if they were correct in assuming that the jurors would have been prejudiced if the information had been publicized, see ante at 156-157 of 72 N.J. (Pashman, J., concurring), they could have utilized any one of the numerous devices for ensuring the impartiality of the jury without resorting to methods which have such an injurious effect on First Amendment rights.

Although the restrictive "gags" were imposed after the juries were empanelled, this is an insufficient basis for distinguishing the result in these appeals from those in the Nebraska and Oklahoma cases. Both defendants could have been accorded their full Sixth Amendment right to a fair trial without "gagging" the press. If the trial judges were unsure whether the information would have even reached the jurors, they could have utilized a voir dire of jurors. If jurors had read news accounts, either judge could have issued strongly worded cautionary instructions to the jury. Since the information was revealed in hearings occurring in each case prior to the beginning of deliberation, the judges also had the option of dismissing a prejudiced juror and proceeding with one of the alternates. If, on the other hand, either judge was fairly certain that the information was likely to reach the jurors and would have been prejudicial, he could have considered other alternatives. If none of the above techniques would have been successful, either alone or in combination, and the parties could not have been convinced to stipulate to the facts, the juries could have been sequestered. In the unfortunate and unlikely event that even sequestration failed to prevent jurors from receiving prejudicial information, the trial judges still would not have been required to choose between First and Sixth Amendment guarantees; the availability of a mistrial should have assured both trial judges that a choice between constitutional provisions need never have been made. See State v. Van Duyne, supra, 43 N.J. at 387.

B.

The decision which procedures to use in avoiding jury prejudice will depend upon the nature of the particular problem facing the trial court. Where the issue arises before a jury is drawn, there is greater flexibility. The trial judge may order a change of venue, require a foreign jury or a continuance, or voir dire prospective jurors.

Of these alternatives the voir dire involves the least imposition on the State, the defense and jurors. It is a normal part of the trial process, and can be helpful not only in removing prejudiced persons from the jury, but also in assessing the need for a change of venue, a continuance, or a foreign jury. State v. Trantino, supra, 45 N.J. at 40. The trial judge should carefully question each juror as to his knowledge of news reports and what effect they have had on his ability to judge the case fairly. The proceeding should be conducted in such a way that jurors who are aware of such reports do not contaminate the remaining pool of persons. See State v. Rios, 17 N.J. 572 , 586-588 (1955). Questions should not be phrased in a manner which will increase the likelihood that publicity will have an adverse impact on a juror's conception of the case.

While it is generally held that the existence of pretrial publicity alone will not justify a transfer or continuance, see Bearden v. United States, 320 F.2d 99 (5 Cir. 1963), cert. granted and judgment vacated and remanded, 372 U.S. 252, 83 S.Ct. 875, 9 L.Ed.2d 732 (1963), cert. den. 376 U.S. 922, 84 S.Ct. 679, 11 L.Ed.2d 616 (1964); United States v. Decker, 304 F.2d 702 (6 Cir. 1962), aff'd 378 F.2d 245 (6 Cir. 1967), where it is obvious that a jury free of preconceived notions of the evidence cannot be drawn, the court should consider the other remedies without resorting to a voir dire. In utilizing a transfer or continuance, the trial judge should consider the potential harm from such delay or inconvenience. Obviously, other factors will influence the trial court as well, such as whether publicity is likely to recur when the trial begins, and whether pretrial publicity will be equally pervasive in the place to which the trial is moved. A delay poses the additional problem in that it creates a potential for abridging the defendant's right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Groppi v. Wisconsin, 400 U.S. 505, 510, 91 S.Ct. 490, 27 L.Ed.2d 571 , 575-576 (1971).

Procedures should be used throughout the trial process to control the release of information by law enforcement officials and court personnel. See Sheppard v. Maxwell, supra, 384 U.S. at 359, 86 S.Ct. at 1520, 16 L.Ed.2d at 618; Nebraska Press Assoc. v. Stuart, supra, 427 U.S. at 601, 96 S.Ct. at 2823, 49 L.Ed.2d at 722, n. 27 (Brennan, J., concurring). This would seem sound not only from the perspective of protecting the defendant's right to have publicity limited, but also from the State's interest in minimizing erroneous reports and rumors which inevitably occur when no restrictions are placed on such statements. In State v. Van Duyne, supra, this Court interpreted the Canons of Professional Ethics to ban statements to news media by prosecutorial staff or defense counsel. See also Sheppard v. Maxwell, supra, 384 U.S. at 361, 86 S.Ct. at 1522, 16 L.Ed.2d at 619-620 . In State v. Kavanaugh, et al., supra, this Court revoked an attorney's authority to appear pro hac vice where he had been improperly circulating material to the press. Restrictions on an attorney's right to discuss his case publicly may be imposed when he is undermining the fairness of the trial process. See DR 7-107.

After the jury is empanelled, the trial judge's options are more limited. Nevertheless, by various devices, defendants' rights can still be protected. Jurors should be questioned if reports are published during the trial; cautionary instructions or sequestration may be appropriate; if alternates are available, prejudiced jurors may be dismissed; and finally, if prejudice results, a mistrial should be ordered.

Cautionary instructions are often used in trials, and can be helpful, both as a way of informing jurors as to their proper role in the trial process and ordering that they disregard certain evidence. Obviously, realistic expectations should be made of the jury, and in many instances this alternative will not suffice by itself. Cf., United States v. Schiavo, supra, 504 F.2d at 24 (Aldisert, J., dissenting), Comment, "Sequestration: A Possible Solution to the Free Press-Fair Trial Dilemma," supra, 23 Am. U.L. Rev. at 932-933. As in the voir dire, instructions should be worded in a way which will avoid raising the jurors' curiosity and therefore act as an encouragement to disobedience. However, they may be used successfully where news coverage is not widespread, the information contained in the reports does not conflict with testimony proven in court, and it is factual rather than emotional in nature. Where instructions are used realistically, courts have refused to presume that jurors will disobey them. State v. Curcio, supra, 23 N.J. at 527-528; State v. Rios, supra, 17 N.J. at 589; State v. Cottone, 52 N.J. Super. 316, 326-27 (App.Div. 1958), certif. den. 28 N.J. 527 (1959); State ex rel. Superior Ct. v. Sperry, 79 Wn.2d 69, 483 P.2d 608 (1971), cert. den. 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971).

Where publicity is widespread and cautionary instructions are not likely to remove the threat of prejudice, the jury may be sequestered. This technique was specifically mentioned by the majority in Nebraska:

Sequestration of jurors is, of course, always available. Although that measure insulates jurors only after they are sworn, it also enhances the likelihood of dissipating the impact of pretrial publicity and emphasizes the elements of the jurors' oaths.

[ 427 U.S. at 564, 96 S.Ct. at 2805, 49 L.Ed.2d at 700]

See also id. at 601, 96 S.Ct. at 2822, 49 L.Ed.2d at 722 (Brennan, J., concurring); Sheppard v. Maxwell, supra, 384 U.S. at 359, 86 S.Ct. at 1520, 16 L.Ed.2d at 618 ; Comment, "Sequestration: A Possible Solution to the Free Press-Fair Trial Dilemma," supra. If publicity is pervasive or of an emotional quality, sequestration may be appropriate even before the entire jury is empanelled. State v. Van Duyne, supra, 43 N.J. at 388. However, usually this should not be necessary. State v. Rios, supra, 17 N.J. at 587. In the instant case, "gag" orders were not imposed because of a fear that there would be widespread publicity which might infect the trial process, but because of information which surfaced after the jury was chosen. Consequently, it is not disputed that this alternative would have successfully protected defendants' Sixth Amendment rights.

Yet sequestration should not be considered as a panacea for the problem of prejudicial publicity. Because it is costly to the State, inconveniences jurors and may have an adverse impact on the deliberative process, it should be utilized only if other less burdensome alternatives would be ineffective. As the majority correctly points out, R. 1:8-6 (a) provides for sequestration prior to instructing the jury only where it is found that "there are extraordinary circumstances." Nevertheless, in a highly publicized trial it may be the only way of protecting First and Sixth Amendment rights without resorting to either a mistrial or methods which impinge upon First Amendment interests.

Other than a reversal or mistrial, the only remaining alternative would be to utilize in camera hearings. See ante at 142 of 72 N.J. Although it is not necessary to rule out this alternative completely, it should be noted that there are serious problems with this approach. As the majority states

[f]rom the standpoint of the press, the in camera procedure, while not a direct restraint, arguably achieves the same result by more subtle means and becomes in effect a prior restraint on its news-gathering ability.

[At 144 of 72 N.J.]

The fact that the United States Supreme Court has chosen to emphasize that press "gags" were imposed on reporting events which transpired in open court, Nebraska, supra, 427 U.S. at 570, 96 S.Ct. at 2808, 49 L.Ed.2d at 704; Oklahoma Publishing Co. v. District Court In and For Oklahoma County, supra, 430 U.S. at 311, 97 S.Ct. 1047; cf. Estes v. Texas, supra, 381 U.S. at 541-42, 85 S.Ct. at 1632-33, 14 L.Ed. 2d at 549-50, should not be used as a justification for closing court proceedings to the press and the public. It must be realized that the use of closed proceedings has the capacity to subvert the entire effect of our decision today.

I find it unnecessary to analyze the propriety of in camera hearings solely in terms of whether the press or the public has a First Amendment right to be present during court proceedings. See post at 169 of 73 N.J. (Schreiber, J., concurring). The strong policy reasons for making trials public are related to many of the same concerns which underlie the First Amendment, but they are also grounded in values associated with the criminal justice system itself. See ante at 156-158 of 73 N.J., at 389 of 373 A.2d (Pashman, J., concurring). See Sheppard v. Maxwell, supra, 384 U.S. at 349-50, 86 S.Ct. at 1515, 16 L.Ed.2d at 613 ("The principle . . . has long been reflected in the 'Anglo-American distrust for secret trials.'"); E.W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1964), appeal dismissed as moot, 164 Ohio St. 261, 130 N.E.2d 701 (Sup.Ct. 1955).

Accordingly, a substantial number of courts have refused to close trial proceedings even where a defendant has asserted that it was necessary to ensure a fair trial. See United States v. American Radiator Standard San. Corp., 274 F. Supp. 790 (W.D. Pa. 1967); Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563 (1971); Oxnard Publishing Co. v. Superior Court, 68 Cal.Rptr. 83 (Ct.App. 1968); Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 300 P.2d 163 (Ct.App. 1956); Oliver v. Postel, 30 N.Y.2d 171, 331 N.Y.S.2d 407, 282 N.E.2d 306 (1972); People v. Holder, 70 Misc.2d 31, 332 N.Y.S.2d 933 (Sup.Ct. 1972); E.W. Scripps Co. v. Fulton, supra. See also Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965) (dicta) ("although a defendant can, under some circumstances, waive his constitutional right to a public trial, he has no absolute right to compel a private trial."). In this state, such a result might be predicated upon the common law nature of the trial process, or upon court rule. R. 1:2-1 specifically provides:

All trials, hearings of motions and other applications, pretrial conferences, arraignments, sentencing conferences (except with members of the probation department) and appeals shall be conducted in open court unless otherwise provided by rule or statute. * * *

Conclusion

Today's decision should serve to remove any notion that trial judges must choose between fundamental constitutional rights. It should not be taken as a triumph of the First Amendment over the Sixth, or as Justice Brennan eloquently stated, a "sacrifice of precious Sixth Amendment rights on the altar of the First Amendment." Nebraska, 427 U.S. at 612, 96 S.Ct. at 2828, 49 L.Ed.2d at 728. It is, in every way, a decision according equal respect to "two of the most cherished policies of our civilization." Indeed, our democratic institutions are too dependent upon both First and Sixth Amendment guarantees to withstand any other conclusion.

But to the extent that our decision rests on the availability of other alternatives to protect a defendant's right to a fair-minded jury, it will require trial judges to perform their delicate task with an open, flexible attitude; they must be aware of the effect that publicity can have on the attitudes of jurors, and of the impact that each remedy can have in dissolving potential influences. Because restrictive "gag" orders have the effect of stifling the open and robust debate which is so vital to democracy, they can never be considered to be among the trial judge's permissible options. Therefore, I concur in the Court's holding that the orders entered by the trial judges in these cases are unconstitutional.

SCHREIBER, J., concurring.

I heartily agree with the majority and concurring opinions that it is appropriate for the Court, in view of the public interest in these controversies, to address the subject and to project guidelines for trial judges, even though the issues in these cases are moot. Busik v. Levine, 63 N.J. 351 , 363-364 (1973); John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576 , 578 (1971). The precise issue involved certain orders which prohibited the press from reporting events which occurred during the course of trial in open court. The United States Supreme Court has spoken directly on the point, holding such orders violate the Fourteenth Amendment to the Federal Constitution. Oklahoma Publishing Co. v. District Court In and For Oklahoma County, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977); Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

In discussing alternatives available to the trial court where the evidence, offer of proof, or argument of counsel is not to be heard by the jury because it may affect the defendant's Sixth Amendment right to a trial by an impartial jury, the majority seems to cast some doubt about the constitutionality of in camera proceedings, which it suggests should be used with caution. In my opinion certain aspects of a trial, such as admissibility of a confession, may be held in camera and such hearings are not violative of the First Amendment. The trial judge should in the exercise of his discretion be permitted to utilize the in camera procedure when the defendant so desires and the subject-matter, if ruled inadmissible, may adversely affect the jury's impartiality.

It is important to recognize the nature of the scope and impact of the federal constitutional guarantee of freedom of the press. The First Amendment states that Congress shall make no law "abridging the freedom of speech, or of the press." On the face of it, therefore, it appears that the framers of the Amendment, unless we ascribe to them an intent simply to be redundant, considered freedom of the press to have certain characteristics distinguishable from the general category of freedom of speech. The language employed has significance. Note that freedom of the press is addressed to an institution, unlike the right to free speech which pertains to the individual. No one would contend that freedom of the press is the equivalent of freedom of speech. Further, the press is cognizant of the difference for it has vigorously argued that its members may not be judicially compelled to divulge sources of information because of the constitutional shelter of the freedom of the press, a shelter not available to the citizenry. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

Blackstone had stated approximately 25 years before the First Amendment was drafted that freedom of the press meant freedom from censorship before publication. He wrote: "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published." 4 W. Blackstone, Commentaries 151-152 (4th Cooley ed. J. Andrews 1899). This concept concerned the right to publish information known by the editor without having to receive prior approval from the government licensor. As Blackstone wrote:

Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press. . . . To subject the press to the restrictive power of a licenser, as was formerly done . . . is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. [ Id.]

Freedom from prior restraint in publishing never involved a right to gather news from confidential government activities.

Most of the state constitutions which had been drawn prior to the drafting of the Federal Constitution contained clauses protecting the freedom of the press, but they did not refer to freedom of speech. See, e.g., Part I, Art. XVI of the Massachusetts Constitution of 1780.

Professor Leonard W. Levy, author of Legacy of Suppression: Freedom of Speech and Press in Early American History (1964), which contains the most comprehensive survey of the source materials available on the framers' intent and interpretation of the phrase, points out that "freedom of the press" used in the state constitutions was meant to convey the Blackstonian definition. Id. at 185.

Only three members of the Constitutional Convention attempted to define the parameters of freedom of the press. James Wilson of Pennsylvania at the Pennsylvania Ratifying Convention of 1787 argued that the federal government had not been granted the power to destroy the freedom of the press. He restated the Blackstonian definition that "what is meant by the liberty of the press is that there should be no antecedent restraint upon it." Pennsylvania and the Federal Constitution 1787-1788, at 308-309 (J. McMaster F. Stone eds. 1888). Hugh Williamson, a Constitutional Convention delegate from North Carolina, was of the same view. Williamson, "Remarks on the New Plan of Government," in Essays on the Constitution of the United States, 394, 398 (P. Ford ed. 1892). The third was George Nicholas of Virgina, who also accepted Blackstone's definition. L. Levy, supra at 217. The debates in the First Congress which framed the First Amendment do not suggest any different interpretation. 1 Annals of Congress (1789).

In view of the historical background in which the freedom of the press concept was nurtured, it is not surprising that Mr. Justice Stewart has concluded that the primary purpose of the constitutional guarantee of a free press was "to create a fourth institution outside the Government as an additional check on the" executive, legislative and judicial branches. "Or of the Press," Address of Mr. Justice Stewart, Yale Law School Sesquicentennial Convocation (November 2, 1974).

This salutary purpose is based on the right to criticize. It is not predicated on a right to know. The Constitution is not a Sunshine Law and the United States Supreme Court has made it clear that there is no constitutional guarantee that the press has any greater right to obtain information than the public.

In Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626, 641 (1972), Mr. Justice White commented:

It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.

In Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495, 508-509 (1974), Mr. Justice Stewart writing for the majority held:

The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally. It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources . . . and that government cannot restrain the publication of news emanating from such sources. . . . It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision of this Court. [footnote omitted]

To the same effect see Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Note, The Rights of the Public and the Press To Gather Information, 87 Harv. L. Rev. 1505, 1521 (1974) (press has no inherent right to special access to information). See also Estes v. Texas, 381 U.S. 532, 539, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543, 548, reh. denied, 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118 (1965), which subordinated the right of the press "to the maintenance of absolute fairness in the judicial process."

We turn then to the question of whether the public has a right to be present during that part of courtroom proceedings which the defendant, in order to safeguard his Sixth Amendment right to trial by an impartial jury, seeks to have held in camera. It is well settled that there is no constitutional right to be present during all activities of the executive, legislative and judicial branches of government. In Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179, 190, reh. denied, 382 U.S. 873, 86 S.Ct. 17, 15 L.Ed.2d 114 (1965), the Court noted:

[T]he prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right.

So, too, the Supreme Court in Branzburg v. Hayes commented:

Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathered in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded, and they may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal. [ 408 U.S. at 684-685, 92 S.Ct. at 2658, 33 L.Ed.2d at 641]

The use of in camera hearings is well established as an integral part of judicial proceedings. We have recognized its proper use when exercised by the trial judge in his sound discretion. In re National Broadcasting Company, 64 N.J. 476 , 479 (1974). In In re Presentment of Essex County Grand Jury, 46 N.J. 467, 474 (1966), this Court approved the use of an in camera hearing to allow a public official to introduce evidence to dissipate the factual basis for a grand jury censure. R. 3:6-9(c). So, too, where a witness refuses to answer questions before a grand jury which he believes self-incriminating, the hearing before the Court is held in camera to protect the secrecy of the grand jury proceedings. See R. 3:6-6(a) which enumerates those persons who may be present while the grand jury is in session.

It has been common practice, as the majority notes, to conduct sidebar conferences during trials among counsel and the court so that the jury may not hear arguments, including offers of proof, in order to preserve the jury's impartiality. The public is not privy to these conferences, which in effect are in camera. Entire proceedings in the Juvenile and Domestic Relations Court are held in camera. R. 5:9-1(a) requires that in the best interest of the juvenile, every hearing shall be conducted in private. R. 5:5-1(b) provides that hearings and trials may, in that court's discretion, be conducted in private in any matrimonial matter and in any matter affecting children. In custody determinations the testimony of a child may be taken privately in chambers. Moreover, the United States Supreme Court has approved in camera hearings "to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice." United States v. Nixon, 418 U.S. 683, 715, 94 S.Ct. 3090, 3111, 41 L.Ed.2d 1039, 1068 (1974). The Court also commented:

It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. [ 418 U.S. at 714, 94 S.Ct. at 3110, 41 L.Ed.2d at 1067]

The State Trial Judge's Book (2d ed. 1969), published under the sponsorship of the National Conference of State Trial Judges, recommends that criminal pretrial hearings may properly be closed where the defendant has so moved or consented to the court's or prosecution's suggestion that this is necessary to protect the defendant's Sixth Amendment rights. Id. at 265. The authors have written:

When, after consideration, it is concluded that a pretrial hearing is to be held, exclusion of media representatives as well as the general public is essential because, notwithstanding the power and duty of the trial judge to warn concerning the impropriety of publishing evidence presented at such a hearing, and notwithstanding the willingness of some reporters to withhold prejudicial information disclosed until the completion of the trial, not all reporters are willing to do so, and there is serious doubt whether a reporter's violation of an agreement to delay publication constitutes contempt. [ Id., footnote omitted]

The American Bar Association Project on Standards For Criminal Justice in its Fair Trial and Free Press (Approved Draft 1968), has adopted criteria which provide for in camera proceedings in criminal cases. Two pertinent standards are 3.1 and 3.5(d). Standard 3.1 states:

Motion to exclude public from all or part of pretrial hearing.

In any preliminary hearing, bail hearing, or other pretrial hearing in a criminal case, including a motion to suppress evidence, the defendant may move that all or part of the hearing be held in chambers or otherwise closed to the public on the ground that dissemination of evidence or argument adduced at the hearing may disclose matters that will be inadmissible in evidence at the trial and is therefore likely to interfere with his right to a fair trial by an impartial jury. The motion shall be granted unless the presiding officer determines that there is no substantial likelihood of such interference. With the consent of the defendant, the presiding officer may take such action on his own motion or at the suggestion of the prosecution. Whenever under this rule all or part of any pretrial hearing is held in chambers or otherwise closed to the public, a complete record of the proceedings shall be kept and shall be made available to the public following the completion of trial or disposition of the case without trial. Nothing in this rule is intended to interfere with the power of the presiding officer in any pretrial hearing to caution those present that dissemination of certain information by any means of public communication may jeopardize the right to a fair trial by an impartial jury.

Standard 3.5(d) reads as follows:

Exclusion of the public from hearings or arguments outside the presence of the jury.

If the jury is not sequestered, the defendant shall be permitted to move that the public be excluded from any portion of the trial that takes place outside the presence of the jury on the ground that dissemination of evidence or argument adduced at the hearing is likely to interfere with the defendant's right to a fair trial by an impartial jury. The motion shall be granted unless it is determined that there is no substantial likelihood of such interference. With the consent of the defendant, the court may take such action on its own motion or at the suggestion of the prosecution. Whenever such action is taken, a complete record of the proceedings from which the public has been excluded shall be kept and shall be made available to the public following the completion of the trial. Nothing in this recommendation is intended to interfere with the power of the court, in connection with any hearing held outside the presence of the jury, to caution those present that dissemination of specified information by any means of public communication, prior to the rendering of the verdict, may jeopardize the right to a fair trial by an impartial jury.

The in camera device is available and should be utilized with the defendant's consent, or at his request, to protect his Sixth Amendment rights during pretrial and trial proceedings with respect to those matters which the jurors or prospective jurors should not hear and which may reasonably be deemed to affect their impartiality. All such data, of course, will be made public either during or at the conclusion of the trial. The press will therefore be able to fully serve the public with its critique of the record when it is disclosed.

Other than as supplemented and modified by what has been stated herein, I concur in the majority opinion and join in its judgment.

Justice MOUNTAIN joins in this opinion.

MOUNTAIN, PASHMAN and SCHREIBER, J.J., concurring in the result.

For reversal — Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and SCHREIBER and Judge CONFORD — 7.

For affirmance — None