Nine of 10 indictments never go to normal trial. One way or another, settlements are reached. Consequently, how officials behave in pretrial proceedings can be crucially important.
Do they follow constitutional standards in installing wiretaps? In using informers? In issuing search warrants? In making arrests? In getting confessions? In plea-bargaining?
And what about the performance of judges, who are absolutely immune from lawsuits for judicial acts, including erroneous and malicious ones, and who in 15 states are elected on a partisan basis?
But there's a more fundamental issue - what the lawyers call a threshold question: how do you find out if you can't get into the courtroom or into the records to see what they're doing?
That question has now reached the Supreme Court, brought there by a New York state case that's set for oral argument Nov. 7 and decision by early next summer. In addition, the court is considering whether to review a related Pennsylvania case.
In the New York case, the highest state court upheld a judge who closed a pretrial hearing with neither notice nor a showing of a clear danger to the defendant's rights.
In the Pennsylvania case, the issue is state Supreme Court rules - which have the force of law - that require judges to close pretrial proceedings on the mere motion of a defendant.
The Sixth Amendment contains a guarantee of a "public trial." In essence, the position of the New York and Pennsylvania courts is that the guarantee doesn't apply to pretrial proceedings.
But new research into the history of the Sixth Amendment shows that the framers of the Constitution - and the courts long after the Bill of Rights was ratified in 1791 - believed that the public's right to attend all pretrial hearings was absolute.
The research was done by the Reporters Committee for Freedom of the Press, a nonprofit group financed by press donations and relying on volunteer help. It was disclosed by the committee and the National Association of Broadcasters in a joint friend-of-the-court brief submitted in the New York case (Gannett Co., Inc. vs. De Pasquale).
The brief focuses on the roots of the amendment in the colonies, on the absence of a single closed pretrial proceeding in a 70-year period in the 18th and 19th centuries in Massachusetts, and on the unrelenting application of the "public trial" guarantee to pretrial phases of the Aaron Burr treason trial - the most sensational criminal case in the early years of the Republic.
The brief draws on the history of several colonies to show wide acceptance of the need for a guaranteed public right to attend all judicial proceedings. A case in point is a provision in the "Concessions and Agreements of West New Jersey" of 1677 that, scholars say, was an evolutionary step toward the Bill of Rights.
The provision guarantees "any person" the right to attend any civil or criminal trial so "that justice may not be done in a corner or in any covert manner . . ."
"Moreover," says the Reporters Committee, "none of the charters of the original states mentioned the exclusion of the public from any stage of any judicial proceeding . . . There is no evidence to suggest that the drafters of the Sixth Amendment intended to secure for the people any less extensive a right than that conceived by the drafters of the state charters . . ."
The absence of even one closed pretrial proceeding in Massachusetts is certified by Yale law professor William E. Nelson, author of "The Americanization of the Common Law." In an affidavit last July, he said:
"During the course of my research on that book, I read every case that exists on record, as far as I know, in the Commonwealth of Massachusetts between the years of 1750 and 1830, with the exception of cases dealing with probate, divorce, and matters before the legislature.
"In examining those records, I found no indication that the public had ever been excluded from any stage of any proceeding including post-indictment proceedings . . ."
Burr faced trial in Richmond in 1807. Chief Justice John Marshall presided. Public hostility toward Burr was such that he easily could be exposed to publicity that might deprive him of his right to trial by an impartial jury.
Yet Marshall, aware of all of this, kept the proceedings open to press and public at every stage - even the stage before a grand jury indicted Burr for treason.
Opposing lawyers battled for a verdict, to be sure. But they also battled for public opinion. Accounts of the proceedings say that they spoke to the crowd of spectators in the courtroom far more than they did to the bench.
And the spectators then repeated the lawyers' words to the "thousands who could not get into the hall [to hear] what had been said by the advocates," Albert J. Beveridge said in "The Life of John Marshall." He wrote:
"So vocal and belligerent was the patriotic majority of people who were convinced of Burr's guilt that men who at first held opinion contrary to the prevailing sentiment, or who entertained serious doubt of Burr's guilt, kept discreetly silent.
"So aggressively hostile was public feeling that, weeks later, when the hearing and manners of Burr, and the devotion, skill, and boldness of his counsel had soften popular asperity, Marshall declared that, even then, 'it would be difficult or dangerous for a jury to venture to acquit Burr, however innocent they might think him.'"
In a pretrial tactic intended to prejudice the public against Burr, the prosecutor made a motion for him to be held in custody while the trial was under way. He expected Marshall to deny the motion, thus encouraging an important element of the partisan press to renew its attack on Marshall's alleged "leniency" to "traitors."
Marshall didn't play the game. Instead, he allowed the prosecutor to present evidence on the motion - at a public pretrial hearing - while sharply criticizing him for trying to exploit the openness of the proceedings. Marshall said: