concurring and dissenting.
As the majority opinion admits, the right to copy court exhibits is not of constitutional derivation but springs from a common law tradition. The right is not unlimited, but as the parties concede, is a matter of trial court discretion. Thus, the broad statement in Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947), that “[w]hat transpires in a courtroom is public property” does not apply to the right to copy exhibits. Rather, as the Court said in Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978):
“It is uncontested ... that the right to inspect and copy judicial records is not. absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.”
The extended discussion of Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), in the majority opinion, albeit accompanied by disclaimers, has an unfortunate tendency to conjure up constitutional confusion about the right of access at issue here. Richmond Newspapers focused on a constitutional right to attend a criminal trial. The distinction between attendance at a trial and access to court records was addressed by the Supreme Court in Nixon v. Warner Communications. The Court made clear the difference between the right to obtain information placed in the public domain through disclosure at an open trial and the right to gather the same information by copying court records themselves. The issue was not whether the press must be “permitted access to public information to which the public generally is guaranteed access, but whether these copies of the White House tapes — to which the public has never had physical access — must be made available for copying.” 435 U.S. at 609, 98 S.Ct. at 1318. Nor does Richmond Newspapers controvert the Court’s statement in the Nixon case that “the requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and report what they have observed.” 435 U.S. at 610, 98 S.Ct. at 1318. That holding was referred to in Chandler v. Florida,-U.S. -,-, 101 S.Ct. 802, 807, 66 L.Ed. 740 (1981), with no indication that it was affected in any way by Richmond Newspapers. Clarity therefore requires that the underlying premise in this case be stated once again. Access to court records is not a matter of constitutional right.
In determining whether records should be available for copying, the courts must weigh “the interests advanced by the parties in the light of the public interest and the duty of the courts.” Nixon v. Warner Communications, 435 U.S. at 602, 98 S.Ct. at 1314. Factors such as an incremental gain in public understanding of an event and the presumption in favor of public access to court files weigh in favor of allowing copying. Counseling against access would be such matters as improper use, including publication of scandalous, libelous, pornographic, or trade secret material; infringement of fair trial rights of the defendants or third persons; and residual privacy rights.
The majority characterizes the presumption favoring access as “strong.” I assume that the proof required to rebut a “strong presumption” is not as demanding as the showing necessary to come within the Second Circuit’s exemption — “only the most extraordinary circumstances should prevent contemporaneous public access,” In re Application of National Broadcasting Company (Myers), 635 F.2d 945, 952 (2d Cir. 1980). Neither is the majority’s test as stringent as the District of Columbia Circuit’s — access should be denied only when “ ‘justice so requires,’ ” United States v. Mitchell, 551 F.2d 1252, 1260 (D.C.Cir. 1976).
*831To the extent that its opinion specifically rejected the extreme tests articulated by the Second Circuit and the D.C. Circuit, I agree with the district court. In reversing the Mitchell case, the Supreme Court pointedly declined to accept the D.C. Circuit’s standard when it assumed the applicability of a “presumption — however gauged — in favor of public access to judicial records.” 435 U.S. at 602, 98 S.Ct. at 1314. In any event, this court would be on much more solid footing if it declined to classify the presumption in terms of its strength, and simply left its existence as one factor to be considered.
The unique feature of this case is the district court’s conclusion that the very great differences between videotapes and other forms of evidence pose different considerations. As the court phrased it,
“Eyewitness testimony is often dramatic and convincing, but its effectiveness and convincing power are almost negligible in comparison with a film or videotape of actual events. When the videotape shows a crime actually being committed, it simply leaves nothing more to be said. This is all to the good, when the videotape is presented in evidence in the course of a trial. The jury is plainly entitled to the best and most reliable evidence available in its quest for truth.”
The court expressed concern, however, that such powerful evidence can cause serious and irreparable harm to the judicial process and to persons who are entitled to protection.
It is true that a videotape of an event is far more accurate as to the events portrayed than the subsequent testimony of the most meticulous human witness, just as a videotape deposition is much more informative as evidence than the conventional stenographically recorded transcript. Nevertheless, courts and lawyers have traditionally placed heavy emphasis upon the written word and have been reluctant to change. The legal profession has been slow to accept modern and more accurate forms of communication, although it recognizes that the words used by a speaker are only part of the message. Lost in the written word are gestures, expressions, intensity of delivery, and other “body language” which convey more than the printed page can hold. Videotape depositions are slowly becoming common, but videotapes of trials made under court supervision have been utilized in only a few scattered instances. This reluctance lingers despite the great potential for furnishing a far more exact and enlightening record than the traditional transcript.
The fact that videotape evidence of an event is more reliable and convincing than a human being’s imperfect description may indeed be a factor in a court’s decision whether to release the evidence to the public. The videotape does not employ euphemisms but produces the truth in stark reality, sometimes so brutally as to be unsuitable for general audiences. As an example, a press representative in reporting a trial may adequately inform the general public about a challenged motion picture film by describing it as pornographic. It is not necessary that the film or excerpts be released for use in the evening TV news. Indeed, to permit such a showing under the guise of news would only thwart the laws prohibiting exhibition.
That trial court discretion is necessary to prevent excesses is demonstrated by In re Application of KSTP Television, 504 F.Supp. 360 (D.Minn.1980), where a commercial TV station sought release of videotapes showing conduct preliminary to, and in anticipation of, rape. The district court, in protecting the privacy rights of the victim, refused to release the tapes, despite the fact that they had been shown at trial and transcripts had been furnished to the media. The court rejected the contention that the television station had a right to copy and publicize the tapes, stating, “There must then come some point where the public’s right to information must bow to the dignity of the individual person.” 504 F.Supp. at 362.
The fact that a television station would seek to broadcast material of this nature is powerful justification for the principle that access to court records must be limited by judicial discretion. The KSTP incident may *832also explain why states experimenting with the televising of trials leave to the trial judge’s discretion the decision to exclude coverage of certain witnesses or portions of a trial. See Chandler v. Florida,-U.S. at-,-, 101 S.Ct. at 805, 812. This discretion is compatible with that applicable when more traditional court exhibits are sought to be publicized. For example, gruesome or revolting photographs need not be released, and in most instances, dissemination of medical records would be an unwarranted affront to personal privacy.
In the case at hand, however, the unrelenting depiction in the evidence does not justify total denial of access to the videotapes. The negotiations for and bribery of governmental officials is a proper subject of public concern and reporting by the media. In this instance, the nature of the evidence is not such that vividity of the videotape in comparison to a witness’s description of the occurrence is a reason for denial of access. Indeed, the inherent accuracy of the tapes may argue for their broadcast rather than less precise and comprehensive news reports.
A separate consideration present in this case is that there is irrelevant matter injurious to third parties on the tapes that merits consideration. The district court was concerned that copying would result in widespread dissemination of scurrilous and libelous statements about persons who were not parties and said, “I simply do not believe that a court should condone, much less affirmatively aid the large scale republication of such material.” In this case, I would accept the trial judge’s characterization of these statements without more and affirm his exercise of discretion in denying a copy of this objectionable matter.
That, however, does not mean that access to all of the material on the tapes should be barred. The privacy and reputation interests to which the trial court referred are legitimate ones, and there has been no showing by the petitioners of any overriding interest in televising those particular segments of the tapes. Technologically it is feasible for the trial court to redact copies of the tapes to remove objectionable comments without an undue expenditure of time or effort. The offensive remarks themselves unfortunately are already matters of public record, but there is no need for emphasis by leaving them in the tapes that will be shown to the television audience. Nor indeed have the TV stations shown any interest in broadcasting that material.
The trial court was also troubled by the possibility that, should a retrial become necessary, Schwartz and Jannotti could be prejudiced if the TV stations replayed the tapes. He commented that “the broadcasters can undoubtedly be relied upon to replay the tapes as part of their advance coverage of such trials.” In this instance I agree with the majority that the likelihood that Schwartz and Jannotti would not have a fair trial is too speculative to rebut the presumption in favor of access.
As a practical matter, it must be recognized that if on appeal a new trial is ordered, considerable time will have elapsed before the case is again presented to a jury. The possibility of extensive television coverage of a retrial or of sustained public interest over that period of time is doubtful at best. So often newsworthy events greeted with excitement today only evoke ennui tomorrow.
I do not agree, then, with the trial judge’s fear that the tapes will be replayed. Moreover, if they are broadcast, and the tapes themselves are again admitted, it would be difficult to establish that a prospective juror has been influenced simply because he has seen some part of the evidence in advance of trial. Stroble v. California, 343 U.S. 181, 191-95, 72 S.Ct. 599, 604-06, 96 L.Ed. 872 (1952); see Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Even if the video tapes are found to be inadmissible on retrial, it would not follow necessarily that testimony about the events shown on the tapes would also be excluded. If such evidence is introduced, the tapes might be found to be merely cumulative and, therefore, dismissal of a viewing juror might not be required.
In any event, the presumption in favor of public access to exhibits may be overcome on a showing that publication would deny a *833fair trial to a defendant. That factor must be carefully weighed, and it must be recognized that not all publicity about a trial is prejudicial. It is worthy of note that in Chandler the Supreme Court said, “An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter.” Chandler v. Florida, - U.S. at -, 101 S.Ct. at 810. Although both constitutional and supervisory concerns are implicated in the circumstances here, I agree that the possibility of injury to Schwartz and Jannotti is too remote to prevail against the presumption of access.
I do not reach the same conclusion, however, in the Criden situation. The district court believed that admission of certain portions of the tape would be “devastatingly prejudicial” to Criden and therefore concluded that premature publication might interfere with his right to a fair trial.
There is a significant difference between the Schwartz-Jannotti and Criden situations. There has been a considered trial ruling by the district judge in SchwartzJannotti that the evidence was admissible. With respect to Criden, by contrast, there is the probability that some portions of the tapes will be excluded if the case is tried. The broadcast of inadmissible evidence immediately prior to trial and at a time when public interest is at its peak may deprive the defendant of a fair trial. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).
In the Criden situation, the respective interests may be weighed and a solution achieved by deleting those portions of the tapes that the trial judge is convinced would be inadmissible and pose a substantial threat to the right of a fair trial. As the majority opinion states, developments in Criden’s case since the district court decided this matter may have eliminated the problem. Rather than ruling on the basis of incomplete information, however, I would remand to the district court for reconsideration in light of the changed circumstances and the possibility of redacting the tapes rather than prohibiting their use in toto.
Prejudicial pretrial publicity that jeopardizes a defendant’s constitutional right to a fair and impartial jury is a continuing problem for the nation’s trial courts. It is obvious that the courts cannot block publication of material that the press has obtained. This is so even though the frequent invocation of customary “remedies” for prejudicial publicity neglects to recognize that their use may deprive the defendant of valued constitutional rights, such as a speedy trial, a jury of the vicinage, or a jury representing a fair cross section of the population. The inability to limit prejudicial pretrial publicity, however, does not mean that the courts are bound to contribute to it.
In summary, I agree with the result reached by the majority, although I do not subscribe to all of the language used in the opinion. A proper purpose for access has been shown with the exceptions I have discussed, and therefore, the order should be vacated and the case remanded.