concurring. I concur in the opinion of the majority, which reaffirms principles fundamental to our society and our system of government. We cherish few values so highly as the unfettered public commerce in ideas and information ensured by the freedoms of press and speech. We guard no other right more jealously than that of an accused to a trial by a fair and impartial jury. It hardly needs repetition that “free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them. ’ ’ Bridges v. California (1941), 314 U. S. 252, 260. My agreement with the majority is that I believe these policies may be accommodated, consistent with the orderly administration of justice without the restrictions upon public information imposed herein, and without closing the courthouse doors.
*470The fundamental-.task of any trial judge is, of course, to afford-a fair trial, ¡orderly and free of bias or prejudice; before a jury willing-and able to render a. just verdict based upon evidence produced in- court. The criminal justice system-contains numerous..-mechanisms for assuring that, our trials conform as closely as possible to that ideal. ■
■ In the great majority .of criminal trials, there is only a minimum of public awareness or interest. Certainly public reliance- upon the. established procedures is the norm in trials of even the.most serious offenses, and so too, to an extent, is public indifference. Equally certain is the .fact that exceptional cases do. occur which so arouse public interest and emotion that special, measures must be taken to assure , a fair and orderly trial. Due process applies ,to those exceptional cases, as to others, to require that “the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of pirivate talk or public print.” Patterson v. Colorado (1907), 205 U. S. 454, 462.
. ,In a\sizeable urban community such as Dayton-, the possibility is small that public opinion concerning a case might be so dominated by fixed opinions- of a defendant’s guilt as to .make it improbable that .an impartial jury can be selected. Even,in a publicized ease, many citizens are likely, to have paid scant attention to the case and many will be able to lay aside their preconceived notions and to render a verdict based on the evidence presented in court. . On the other hand, the pervasive and ubiquitous influence of modern forms of-communication pose clear dangers of inflaming or prejudicing public, opinion, or of subverting the rights, of a. defendant by revealing “evidence” which may never be introduced at trial and which may be doubly damaging because it is subject to none, of the judicial tests for reliability. The nature of the pretrial publicity in a case may involve such a probability of prejudice that an inherent lack of. due process must be presumed. Estes v. Texas (1965), 381 U. S. 532; Rideau v. Louisiana (1963), 373 U. S. 723; Irvin v. Dowd (1961), 366 U. S. 717. But the *471judge’s role in preventing such a deprivation of due process is hardly new, for his task remains as it has ever been, to assure the reality of a fair trial. The particular difficulty faced by a trial court in dealing with pretrial publicity is that such publicity occurs outside the judicial system, in those organs of public news and information most necessary to a free society.
The vitality of our democratic institutions depends in the long run upon broad public support and awareness of the purposes and operations of those institutions. The correction of judicial abuses and the approval of judicial wisdom and integrity depend alike upon the accessibility of the courts to public scrutiny. It is true that highly publicized cases are infrequent, and that transcripts can eventually be made available even in those cases. But as a practical matter, a transcript of a proceeding'is a sterile substitute for observing the actual conduct of a hearing, as reviewing courts are well aware. Actual observation of the demeanor, voice, and gestures of the participants in a hearing must be as informative to press and public as those same matters are to juries during trial. Furthermore, as Mr. Justice Black pointed out in discussing contempt proceedings with regard to' out-of-court publications pertaining to a pending case: “It must be recognized that public interest is much more likely tó be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist. Since they punish utterances made during the pendency of a case, the judgments below therefore produce their restrictive results at the precise time when public interest in the matters discussed would naturally be at its height. * * * It is therefore the controversies that command most interest that the decisions below would remove from the arena of public discussion.” Bridges, supra, at pages 268-69. We most strongly doubt the advisability .of any ruling which closes the doors upon those matters in which public interest is highest.
The Common Pleas Court recognized the strong public *472policy favoring open courts and public trials, and permitted the, closing of a hearing upon motions to suppress the evidence only because it found a clear and present danger to the administration of justice. By its terms, this seems a very strict standard. Yet, it is difficult to avoid the conclusion that the actual effect of that standard is that in any publicized case, all hearings upon motions to suppress should be in camera. All such cases will involve the possibility of inadmissible evidence, for admissibility is the issue in every hearing upon a motion to suppress. All such hearings are scheduled shortly before trial. This case differs from other prosecutions only in the extent of the pretrial publicity. The actual effect of the court’s holding thus seems to be that a suppression hearing should be closed in any highly publicized case.
Even if the test set out by the court does mean something other than that all such hearings should be closed, that test nonetheless fails, it seems to me, because it provides little enlightenment as to what course the trial judge should follow in assuring a fair trial of a highly publicized prosecution. It does not inform us of the actual benefits of an exclusion order, nor is it very useful in determining when other, more familiar forms of judicial protective orders should be employed. The court did mention alternatives to exclusion orders, such as voir dire, continuances, sequestration, and change of venue, but its dismissal of each only reinforces- the conclusion that an exclusion order such as the present one, novel though it may be, would, by its test, be imposed as a matter of course before any of those protective orders are made.
This seems to me to give too much, regard to the convenience of the courts, and too little to the public’s right to information..
As the United States Supreme Court stated in Pennekamp v. Florida (1946), 328 U. S. 331, 347:
“* * # Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline in*473stances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice. ’ ’
Our inquiry should be whether the limitations upon freedom of discussion specifically intended by this exclusion order are in fact necessitated by an “essential requirer ment of the fair and orderly administration of justice.” Thus, even if we agree that “a clear and present danger to the administration of justice” exists, we should go on to inquire whether that threat may be dissipated by means which do not interfere with freedom of discussion.
The finding of the trial court that a clear and present danger exists was based upon the extensive press coverage of this dramatic and vicious crime. Certainly the coverage by the media in this ease was so extensive as to suggest the need to guard against public prejudice. Yet it is important to note that this coverage was exclusively factual and objective. There were no editorials demanding vengeance or asserting the defendants’ guilt. The descriptions of the defendants and their backgrounds were equally objective. In fact, some of the publicity took the form of a squabble between a newspaper and’ a TV station as to which media had been more scrupulous in respecting the defendants’ rights.
The news accounts did reveal information which might well be prejudicial, such as the defendants’ past criminal records, various admissions to the police, accounts of defendants’ character and background, and a report that one defendant failed a police lie detector test. All this information concerns matters which might predispose prospective jurors to a fixed opinion of guilt, and most of it would be excluded at trial. But the newspaper reports of that information does not suggest hostility or deep prejudice toward the defendants.
*474The rationale for closing the hearings upon the motion to suppress is that this publicity, which had been intense and at times prejudicial, created a serious and imminent threat to a fair trial. Granting that to be quite possible does not, however, necessarily justify closing the hearing. Whatever actual prejudice has occurred cannot be undone, except possibly by a continuance, nor does closing the hearing in any way restrict the press from repeating that information, from indulging in speculation as to the results of the hearing, or from publicizing whatever information may chance to leak out, however garbled. It is not so clear that the gossip spawned by keeping these matters secret might not be as damaging as more factually based reports.
The real theory underlying the exclusion order is that actual news coverage of the case will be minimized in the period before trial by reducing the amount of information available to the press, and that some material which the press has not uncovered will more likely remain secret. That theory is probably reasonable, but it remains speculative. We cannot be sure how the press will treat these stories. In other states, voluntary standards of reporting have been adopted by members of the print and electronic media. There is no apparent reason why the possibility of voluntary limitations upon reporting the hearing could not have been explored here. In fact, the prosecutor reportedly supported such an agreement. This court has no way of knowing whether the Dayton news media would have agreed to appropriate voluntary standards with regard to prejudicial information; but, if so, such an agreement would have been a less restrictive and more effective alternative to an exclusionary order, and one which could presumably be enforced if necessary by a contempt citation.
Disregarding that possibility, which is not urged by relator, and accepting arguendo that the previous publicity was not itself-sufficient to prevent a fair trial, but that the added publicity of matters presented in the suppression hearing: might very possibly' tip the scales, there are other methods available to the court to reduce the release of prej*475udieial information—methods less restrictive upom free discussion. - • ■
■ - A continuance might he ■ granted, and I believe that a continuance to preserve a -defendant?s 'right 'to an impartial jury, untainted by prejudicial pretrial publicity, would be a- reasonable grounds for extending the time for trial under R. C. 2945.72. ;
A change of venue is another constitutionally acceptable and practical alternative. The contrary view ignores the-fact that in this case a motion- for a change of'venue was pending at the time the motions to suppress were made. In any event,- Section 10 of Article I’of the- Ohio Constitution, which allows'the'accused “* * „f-'a-speedy public-trial by an -impartial jury of the county in which the offense is alleged to have been committed"*: * .*'•” does not create a right "of venue exclusively-for the defendant. A change-of venue may be granted, to secure an' impartial jury, upon motion of the prosecution or upon the court’s own motion. R. -C. 2901.12(1) and Crim. R.-18. If a change of venue must be-made in order to permit-the trial to be “public” and the jury to be “impartial,” then that is plainly sufficient'to move a trial from the county. Of course, changes of venue cause incbnveniencé for-the judiciary and prosecutorial staff as well as defendants.; but the propriety of such a change is "well-established' by statute and rule, and a change of venue is both more effective in preventing prejudice than any exclusion-order and,-in some cases', is constitutionally required. Rideau v. Louisiana, supra (373 U. S. 723). If we recognise, as we must, that modern communication media pose', problems for -fair trials different from those in our country’s early days, we should also recognize that the speed and ease- of modern transportation greatly reduces the burden imposed by moving a trial to another county. Where, as here, the defendant requests a change of venue and the court finds a clear danger of prejudice from pretrial publicity, there appears little reason why the trial court should struggle to keep the trial in the county, when to do so he must refuse a defendant’s *476motion for a change and prevent the residents of the county from actually being informed about one of the crucial stages of the trial process. The public, the press, and the defendant all stand to lose much and gain little from, such a decision.
The concern that such devices as change of venue, voir dire, sequestration, and continuance are imperfect and inconvenient devices to assure fair trials is, of course, valid. To assure the reality of a fair trial requires an impartial jury, and no technical device or test can guarantee that state of mind, i. e., that “mental attitude of appropriate indifference.” (Mr. Chief Justice Hughes in United States v. Wood (1936), 299 U. S. 123, 145.) To a great extent, our legal system relies upon the likelihood that few are so influenced by pretrial information, if indeed they are aware of it, that they cannot render a fair verdict based upon the evidence produced in court. This is perhaps a generous view of human nature, but it is a view which our experience with juries has seemed to confirm, and a view upon which the integrity of our judicial system relies. Experience also has shown us some of the limitations and failings of human nature which must be given their due. We cannot, for example, expect jurors to be impartial who are aware that a defendant has confessed to a crime, even if the confession is excluded and they are instructed to disregard it. Rideau v. Louisiana, supra; Irvin v. Dowd, supra. See Padawer-Singer & Barton, The Impact of Pretrial Publicity on Jurors’ Verdicts, in Simon, The Jury System in America, at pages 125-139.
But those dangers can be dealt with by other means than by closing a crucial stage of judicial proceedings, in those cases in which public interest and concern are greatest. In any highly publicized case, care must be taken by the trial judge to assure a fair trial, and some adjustments of judicial procedures will often bo necessary. No trial judge would now be heard to say as did the judge presiding in the first Sheppard case, “ ‘How would you ever, in any jury, avoid that kind of thing?’ ” Sheppard v. Maxwell (1966), 384 U. S. 333, 349. Our efforts should now be direct*477ed to using those forms of orderly administration which permit the widest scope for freedom of discussion and freedom of information. Closing the courthouse doors and excluding the press and the public, if it is ever to be justified solely to prevent possible publicity, should be a matter of strictest necessity, for free access to the traditionally public proceedings of our courts and tribunals is too fundamental a value to be sacrificed if an alternative exists. There are such alternatives available to this trial court, and for that reason I believe the hearing beloAV need not be closed. Accordingly, I concur.