concurring.
I join the opinion of the Court, but I write separately to emphasize my view of the nature of the proceeding involved in today’s decision. By definition, a hearing on a motion before trial to suppress evidence is not a trial; it is a pretrial hearing.
The Sixth Amendment tells us that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . public trial.” (Emphasis supplied.) It is the practice in Western societies, and has been part of the common-law tradition for centuries, that trials generally be public. This is an important prophylaxis of the system of justice that constitutes the adhesive element of our society. The public has an interest in observing the performance not only of the litigants and the witnesses, but also of the advocates and the presiding judge. Similarly, if the accused testifies, there is a proper public interest in that testimony. But interest alone does not create a constitutional right.
At common law there was a very different presumption for proceedings which preceded the trial. There was awareness of the untoward effects that could result from the publication *395of information before an indictment was returned or before a person was bound over for trial. For an example we need only consider the case of Daubney v. Cooper, 5 M. & R. 314 (K. B. 1829), which involved a suit for trespass against a judge for forcing a person out of a courtroom. The argument concentrated on whether a defendant was entitled to be represented by counsel. But the following exchange on appeal illustrates the distinction drawn between trials and pretrial proceedings:
(Counsel) “. . . The decision in Cox v. Coleridge proceeded on the ground that what had taken place before the magistrates, was merely a preliminary inquiry. The decision proceeded entirely upon that ground. The Court pointed out the inconvenience which would result from giving publicity to such previous inquiry.”
Bayley, J. (interrupting) “. . . I believe that in that case a distinction was taken between a preliminary inquiry and an inquiry upon which there may be a conviction.”
(Counsel continued) . . Lord Tenterden there says, ‘This being only a preliminary inquiry and not a trial, makes, in my mind, all the difference”* (Emphasis in original.)
Parke, J. (interrupting) . . The decision in Cox v. Coleridge turned upon its being a case of preliminary inquiry.” Id., at 316, 318.
In sum, at common law, the courts recognized that the timing of a proceeding was likely to be critical.
When the Sixth Amendment was written, and for more than *396a century after that, no one could have conceived that the exclusionary rule and pretrial motions to suppress evidence would be part of our criminal jurisprudence. The authors of the Constitution, imaginative, farsighted, and perceptive as they were, could not conceivably have anticipated the paradox inherent in a judge-made rule of evidence that excludes undoubted truth from the truthfinding processes of the adversary system. Nevertheless, as of now, we are confronted not with a legal theory but with the reality of the unique strictures of the exclusionary rule, and they must be taken into account in this setting. To make public the evidence developed in a motion to suppress evidence, cf. Brewer v. Williams, 430 U. S. 387 (1977), would, so long as the exclusionary rule is not modified, introduce a new dimension to the problem of conducting fair trials.
Even though the draftsmen of the Constitution could not anticipate the 20th-century pretrial proceedings to suppress evidence, pretrial proceedings were not wholly unknown in that day. Written interrogatories were used pretrial in 18th-century litigation, especially in admiralty cases. Thus, it is safe to assume that those lawyers who drafted the Sixth Amendment were not unaware that some testimony was likely to be recorded before trials took place. Yet, no one ever suggested that there was any “right” of the public to be present at such pretrial proceedings as were available in that time; until the trial it could not be known whether and to what extent the pretrial evidence would be offered or received.
Similarly, during the last 40 years in which the pretrial processes have been enormously expanded, it has never occurred to anyone, so far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants. A pretrial deposition does not become part of a “trial” until and unless the contents of the deposition are offered in evidence. Pretrial depositions are not uncommon to take the testimony of a witness, either for the defense or *397for the prosecution. In the entire pretrial period, there is no certainty that a trial will take place. Something in the neighborhood of 85 percent of all criminal charges are resolved by guilty pleas, frequently after pretrial depositions have been taken or motions to suppress evidence have been ruled upon.
For me, the essence of all of this is that by definition “pretrial proceedings” are exactly that.
The full quotation was: “It [the proceeding] is only a preliminary inquiry, whether there be sufficient ground to commit the prisoner for trial. The proceeding before the grand jury is precisely of the same nature, and it would be difficult, if the right exists in the present case, to deny it in that. This being only a preliminary inquiry, and not a trial, makes, in my mind, all the difference.” Cox v. Coleridge, 1 B. & C. 37, 49-50, 107 Eng. Rep. 15,19-20 (1822).