WALSH, Justice, dissenting, with whom CHRISTIE, Chief Justice joins:

The majority today holds that a court may deny the public and the press access to the names of jurors impanelled in a criminal trial, as a matter of discretion, without balancing the public's right of access against the threat to a defendant's Sixth Amendment right to a fair trial. The United States Supreme Court has recognized that the public's right of access to judicial proceedings is protected by the First Amendment to the United States Constitution. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (" Press-Enterprise I"); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (" Press-Enterprise II"). I believe that these precedents compel us to conclude that the public has a qualified First Amendment right to know the identity of those who determine the guilt and innocence of criminal defendants. In my view, the reasons cited by the trial judge for restricting that right in this case are insufficient to overcome this presumption of openness. Moreover, as the majority acknowledges, the trial court entered its order denying access without conducting an evidentiary hearing and without applying the substantial probability test mandated by Press-Enterprise II. Accordingly, I dissent.

I

The majority has recounted the history of this case in the Superior Court, but certain aspects of the proceedings bear particular emphasis in examining the First Amendment question. First, although I do not fault the trial judge's concern over the extreme publicity that this case received at the pretrial stage, it must be noted that the initial closure order was entered sua sponte and without prior notice to the State or the defendant. The public in general as well as the press did not become aware of the closure order until two months later. Second, the trial judge based his denial of access ruling on two considerations: juror taint through publicity, with its consequent effect on the defendant's right to a fair trial, and juror privacy. The majority, however, has chosen not to rely on the juror privacy rationale, upholding denial of access on the sole ground that "intense media coverage" would affect the jury's deliberations. Nevertheless, in focusing on the Lynch trial as a justification for closure, both the trial judge and the majority have, in effect, provided a juror privacy rationale as the basis for protecting Pennell's Sixth Amendment rights. It is important at the outset therefore to address the significance of Gannett's conduct during the Lynch trial.

During the murder trial of Joyce Lynch in mid-1989, Gannett published an article that included the names and physical descriptions of the impanelled jurors. The 12 Who Will Deliver Lynch Verdict, The News Journal, June 3, 1989, at A9, col. 1. I have no quarrel with the majority's view that Gannett's profile of the Lynch jurors constitutes journalism of questionable quality. The article tends to trivialize jury service, focusing primarily on the age, physical characteristics, and family size of the jurors. I also harbor no illusions about the motives of the communication media in reporting events in the criminal trial process. The media are engaged in a competitive commercial enterprise where success is measured in terms of circulation and ratings. But judges are not journalism critics entitled to bring to the constitutional debate over freedom of the press our distaste, whether justified or not, for certain journalistic practices. One could well imagine a juror profile article that sought to remind the public of the importance of jury service or helped the public to understand the trial strategies that led to the acceptance or rejection of certain jurors. On a more controversial level, one could even imagine an article that questioned whether a given jury was truly representative or that challenged the qualifications of certain jurors, thereby invoking public debate on the system of jury selection. Had Gannett published any of these articles, I doubt that the trial judge would have taken it upon himself to limit public access to the Pennell trial. Unfortunately, because Gannett printed a distasteful article offensive to individual jurors in a prior case, our courts have approved a method to prevent Gannett or anyone else from printing any article on the subject of personalized juror selection in the Pennell case. Thus, I fear that the majority's substantial reliance on the Lynch article constitutes a subtle yet troubling intrusion into the editorial policies of the press.

Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), upon which the majority also relies, suggests that even where the press has reported upon a trial in a highly irresponsible manner, the courts should act to limit the effects of publicity on the trial rather than limiting the press' access or attempting to influence the content of what is published. Under the majority's view, however, a court may examine the editorial policies of a newspaper to determine if they pose a threat to fair trials. If the court believes that a prior article posed such a threat, it may then limit the press' access to the information that allowed the newspaper to write that article, although there is no evidence to suggest that any actual harm stemmed from its publication. It may thereby prevent any newspaper from printing any article using the forbidden information, regardless of the quality or beneficial effects of articles that might be written. I cannot sanction this form of judicial scrutiny. "'Regardless of how beneficent-sounding the purposes of controlling the press might be, we . . . remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation's press.'" Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 560-61, 96 S.Ct. 2791, 2803-04, 49 L.Ed.2d 683 (1976) (quoting Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 259, 94 S.Ct. 2831, 2840, 41 L.Ed.2d 730 (1974) (White, J., concurring)).

II

As the majority notes, the Supreme Court of the United States has recognized an implicit First Amendment right of access to the judicial process. While the right is a qualified one, the Supreme Court has been particularly solicitous to protect the public's right of access to criminal trials. In Richmond Newspapers, a majority of the Court found that the First Amendment demands that criminal trials be open, although no one opinion received a majority of the Court's votes. In Globe Newspaper, however, the Court overturned a state statute that allowed a trial judge to close a trial involving allegations of a sexual assault upon a minor. The Court reaffirmed its decision in Richmond Newspapers and held that a trial could be closed only if such a measure was necessitated by a compelling governmental interest. In Press-Enterprise I, the Court extended this rule to the selection of jurors, and in Press-Enterprise II, to pretrial hearings in criminal cases. More recently, several federal courts have determined that the First Amendment's protections extend to judicial records. See, e.g., In re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, 8th Cir., 855 F.2d 569 (1988) (documents filed in support of search warrant); United States v. Smith, 3d Cir., 776 F.2d 1104 (1985) (bill of particulars); Associated Press v. United States District Court, 9th Cir., 705 F.2d 1143 (1983) (general constitutional right of access to judicial records); United States v. Dorfman, 7th Cir., 690 F.2d 1230 (1982) (same). But see Baltimore Sun Co. v. Goetz, 4th Cir., 886 F.2d 60 (1989) (no right of access to affidavit in support of search warrant); In re Reporters Comm. for Freedom of the Press, D.C. Cir., 773 F.2d 1325 (1985) (no right of access to discovery documents in civil trial prior to entry of judgment).

The majority frames the issue in this case quite narrowly. The majority first attempts to classify access to jurors' names as access to either judicial records or judicial proceedings but ultimately declines to label the access that Gannett seeks. Thus, the majority analyzes the announcement of jurors' names as if the announcement, by itself, were a specific judicial proceeding from which the public was excluded. To determine whether this "proceeding" is presumptively open under the First Amendment, the majority applies the two-part test announced in Press-Enterprise II: (1) has "the place and process . . . historically been open" and (2) does "public access play a significant positive role in the functioning of the particular process in question." Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740. By eschewing the "records" classification, the majority can avoid confronting the growing body of federal jurisprudence that protects access to judicial records in criminal cases. More important, by analyzing the announcement of names as if it were a distinct proceeding, the majority can separate the identity of the jurors from the jury selection process, ignoring the fact that eliciting and announcing the names of jurors is and always has been a part of voir dire in Delaware, throughout the nation, and since the birth of the jury system in England. In Press-Enterprise I, the Supreme Court held that the jury selection process is presumptively open to public scrutiny. I find no basis for distinguishing juror identity from other aspects of juror selection. Accordingly, I believe that the Superior Court's order constituted a partial closure of voir dire, directly prohibited by Press-Enterprise I. Moreover, even if announcement is analyzed as if it were completely separate from jury selection, I believe that the twin considerations of "experience and logic" drawn from Press-Enterprise II require that the public be given access to jurors' names.

A.

In Press-Enterprise I, the Supreme Court examined the constitutionality of an order that had excluded the public from all but three days of a six-week voir dire. The subsequent trial involved charges of rape and murder, and the trial judge justified his action on the ground that sensitive, personal information would be solicited from jurors during voir dire. He hoped to protect the privacy of jurors and to promote candor in an effort to protect the defendant's fair trial rights. However, the Supreme Court found that juror selection is presumptively an open process and that access is protected by the First Amendment. "[P]ublic proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected." Press-Enterprise I, 464 U.S. at 509, 104 S.Ct. at 823 (emphasis added).

The majority contends that jurors were openly selected because "[t]he judicial proceedings, including voir dire, were never closed to the public." Ante, at 741. It is true that the public was never excluded from the courtroom. But the issue does not turn on logistics. The primary concern of Press-Enterprise I and related cases is minimizing secrecy in criminal proceedings. Anonymity is the very essence of secrecy. Thus, while there is a difference in degree between a court order that keeps jurors anonymous and an order that closes voir dire altogether, both orders prevent the public from receiving information that they otherwise would have received. Both alter the normal course of events in a way that restricts public access to the jury selection process.

The majority also notes that no provision of law dictates what information must be announced at trial or in the jury selection process; therefore, "[w]hen authorized by statute, or in order to protect a defendant's right to a fair trial, courts may withhold disclosure of certain information without depriving the public of its right to open courts." Ante, at 740. When carried to its logical extreme, this statement eviscerates the holding of Press-Enterprise I. It is true that potential jurors need not discuss every possible detail of their lives during voir dire; for example, the public has no possible interest in knowing whether jurors sitting in a personal injury case support the death penalty. The public does have a right to know information about jurors that is generated in the normal course of jury selection unless a restriction is necessary to preserve a compelling interest. That is the holding of Press-Enterprise I. Thus, for example, the public does have a right to know the jurors' views on the death penalty in a capital murder case.

The identity of each juror is the first piece of information generated in the selection process. In the usual course of events, each juror will answer to his name as his examination begins and the names of impanelled jurors will be announced as they are sworn. In the Pennell trial, however, this information was generated in secret and provided only to counsel. Apparently, the majority believes that the simple expedient of eliciting information about jurors in secret divorces it from the voir dire and allows it to be withheld from the public. Under this reasoning, a state might pass a statute providing that jurors' views on the death penalty could be kept confidential "in the interest of justice." The trial judge could question the jurors on their views and provide this information to counsel. He could then assert that voir dire was open because all other information was elicited in public; however, the statute gave him discretion to "withhold disclosure of certain information."

Nothing in the majority's opinion would prevent the public or press from suing to gain access to the restricted information, but under the majority's reasoning it would be futile to allege simply that voir dire had been partially closed. Rather, the party seeking access would have to invoke Press-Enterprise II. He would have to prove that jurors' views on the death penalty had traditionally been public and that publicizing their views was beneficial to the trial process; in short, he would be asked to show that access was supported by "experience and logic." He might well be successful in proving this, but he should not be put to the task. Press-Enterprise I held that the jury selection process is presumptively open. I see no grounds for determining that only certain aspects of that process must be open, while others may be closed at the whim of the trial judge. The majority's reasoning turns Press-Enterprise I on its head: rather than forcing the court to show that a given restriction on access to voir dire is necessary, the majority would force the party seeking access to prove that access is necessary.

It is true that limiting the public's access to jurors' names is less restrictive than a complete closure of voir dire. Nevertheless, the Court in Press-Enterprise I strongly suggested that no limits should be imposed unless necessitated by compelling circumstances. In short, even if protecting juror anonymity is only the first step toward complete closure, it is a significant step nevertheless. The Court held that an individual juror might assert a privacy interest that would allow restrictions upon public access to sensitive areas of questioning. The trial court could then hold the voir dire of that juror in camera, but the transcript of the questioning would be made available at a later date. However, under some circumstances, "a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of the juror withheld, to protect the person from embarrassment." Press-Enterprise I, 464 U.S. at 512, 104 S.Ct. at 825. In his concurrence, Justice Marshall elaborated: "[T]he constitutionally preferable method for reconciling the First Amendment interests of the public and the press with the legitimate privacy interests of jurors and the interests of defendants in fair trials is to redact transcripts in such a way as to preserve the anonymity of jurors while disclosing the substance of their responses." Id. at 520, 104 S.Ct. at 829 (Marshall, J., concurring in the judgment). In other words, if a constitutionally compelling issue of privacy or fairness is present, a juror's name may be kept confidential. Otherwise, the voir dire should be free of restrictions upon public access.

B.

Even if one follows the majority's lead and separates the identity of jurors from voir dire, I believe that the twin considerations of "experience and logic" set forth in Press-Enterprise II support a right of public access. The reasons for looking to historical practice are twofold. First, a tradition of openness at English common law provides evidence of the practices in use at the time that the First Amendment was adopted. Richmond Newspapers, 448 U.S. at 589, 100 S.Ct. at 2834 (Brennan, J., concurring in the judgment) ("[T]he Constitution carries the gloss of history."). Second, "a tradition of accessibility implies the favorable judgment of experience." Id.

The early jury of feudal society was, of course, a very different institution from the modern jury. Jurors were selected not because they were ignorant of the facts in dispute but because they were familiar with them. 1 W. Holdsworth, A History of English Law 332-33 (2d ed. 1922). The jurors were to serve as witnesses, as judges of the credibility of their acquaintances, and as final arbiters of the dispute. Since they were drawn from the landowners living " de vicineto" or in the immediate vicinity, their identity was certain to be known to those attending the trial. See Pope, The Jury, 39 Texas L.Rev. 426, 437 (1961). See also In re Baltimore Sun Co., 4th Cir., 841 F.2d 74, 75 (1988). As the role of the jurors changed from witnesses of fact to judges of fact, prospective jurors could be challenged for personal knowledge of the matter to be tried. Nevertheless, the jurors were drawn " de corpore comitatus" — from the county in which the dispute arose. 3 W. Blackstone, Commentaries on the Laws of England 359-60 (Sharswood ed. 1882) (1769). This practice continues in present-day America, although population growth and a vast expansion of the pool of eligible jurors make it unlikely that the identity of modern jurors will be apparent to the public unless their names are revealed.

In the sixteenth century, at a time when many of the concepts that underlie the modern jury had been crystalized, see Pope, supra, at 434-44, the names of jurors were announced in the selection process. Sir Thomas Smith, writing in 1565, describes the selection of jurors in vivid detail. "The clarke . . . nameth all these that be on the quest [the jury]. The crier at everie name cryeth aloude . . . and then saith good men and true. . . ." T. Smith, De Republica Anglorum 99 (L. Alston ed. 1906 photo. reprint 1979) (1585). See also M. Hale, The History of the Common Law of England 162 (C. Gray ed. 1971) (1713) ("When the Jurors appear, and are called, each Party has Liberty to take his Challenge. . . .") The announcement of the names is connected not only to voir dire, but also to the oaths that the jurors take; thus, it played a role in fixing a sense of responsibility to the crown and the accused upon the jurors.

The early English practice was still in use on the eve of the American Revolution, as demonstrated by a passage from Blackstone's Commentaries:

A common jury is one returned by the sheriff according to the direction of the statute 3 Geo. II. c. 25 . . . and when each cause is called, twelve of the persons, whose names shall first be drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused. . . .

As the jurors appear, when called, they shall be sworn, unless challenged by either party. 3 W. Blackstone, supra, at 358 (emphasis in original).

Blackstone also describes how, if a sufficient number of satisfactory jurors could not be drawn from those summoned, the judge could order that the balance be filled from a so-called tales de circumstantibus, drawn from spectators present in the court. 3 W. Blackstone, supra, at 364-65. It seems unlikely that the identity of these jurors could be kept secret from the remaining spectators, even if the court had wished to impanel an anonymous jury.

The practice of publicly naming jurors continued in the American colonies and in the new American nation. At the highly publicized treason trial of Aaron Burr, the names of jurors were public, notwithstanding the defense's argument that unfavorable publicity had colored popular opinion against Burr to such an extent that an unbiased panel could not be selected. United States v. Burr, C.C.D.Va., 25 F.Cas. 55 (No. 14,693) (1807). The reported case provides a detailed description of the voir dire, which was presided over by Chief Justice Marshall and conducted before "[a]n immense concourse of citizens." Id. at 74. "At the instance of Mr. Hay [the prosecuting attorney] the names of the jurors were called, when forty-six answered to their names, two only being absent." Id. The prospective jurors were then called one by one and questioned extensively on their opinions and the role that the newspapers had played in shaping them. When only four satisfactory jurors could be drawn from the first venire, a second group of potential jurors was summoned and "called, and all except seven answered to their names." Id. at 85. Finally, after a voir dire lasting several days, twelve satisfactory jurors were chosen and sworn.

The names of the selected jurors and of the venire were then called over. After which, John M. Sheppard, and Richard Curd were selected to complete the panel, and sworn. The following is, therefore, a complete list of the petit jury: [twelve names]. Id. at 87.

In sum, there is a considerable body of historical evidence to suggest that jurors' names were presumptively public both under English law and in the early days of the American nation. Indeed, neither the majority nor the State cites a single example of a case tried before the 1970s in which an anonymous jury was impanelled. Most of the recent cases involve trials of organized crime figures in which a concern for the safety of jurors was present. See, e.g., United States v. Tutino, 2d Cir., 883 F.2d 1125 (1989); United States v. Scarfo, 3d Cir., 850 F.2d 1015 (1988), cert. denied, ___ U.S. ___, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988); United States v. Barnes, 2d Cir., 604 F.2d 121 (1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). Others involved a defendant's demands for a closed voir dire and did not address the First Amendment, United States v. Layton, N.D.Cal., 519 F.Supp. 959 (1981), or denied access on mootness grounds. Hearst Corp. v. Maryland, 60 Md. App. 651, 484 A.2d 292 (1984). Others involved situations in which names had been called in open court but access to files was denied. Newsday, Inc. v. Sise, 17 N.Y.2d 146, 524 N.Y.S.2d 35, 518 N.E.2d 930 (1987), cert. denied, 486 U.S. 1056, 108 S.Ct. 2823, 100 L.Ed.2d 924 (1988); United States v. Gurney, 5th Cir., 558 F.2d 1202 (1977). Thus, the only precedential basis for the majority's ruling that I am able to discern is United States v. Edwards, 5th Cir., 823 F.2d 111 (1987), cert. denied sub nom. Times Picayune Publishing Corp. v. Edwards, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988) and United States v. Doherty, D.Mass., 675 F.Supp. 719 (1987). Even these cases recognized that the First Amendment has some bearing on access to jurors' names but held that certain limits were acceptable under the circumstances.

One cannot conclude with certainty that in the entire history of Anglo-American jurisprudence an anonymous jury was never impanelled prior to the 1970s. Yet the majority appears to demand that degree of certainty before it would be willing to recognize a tradition of openness. Rather than requiring Gannett to show that a strong presumption of openness exists, the majority would ask it to prove that restrictions have never and could never have been imposed. By contrast, the United States Supreme Court has never required such an impossible standard of proof. In Press-Enterprise II, the Court recognized that a number of state statutes enacted in the 19th century had allowed preliminary hearings to be closed to the public. However, it found that these statutes fit within the broad tradition of openness because hearings could be "closed only for cause shown." Press-Enterprise II, 478 U.S. at 11, 106 S.Ct. at 2742.

Contrary to the majority's claims, a tradition of openness is reflected in currently enacted statutes. In fourteen states, statutes give the public access to master jury lists. In eighteen states, statutes serve to create a presumption of public access to the names of qualified jurors or the jurors to be called for a venire. Moreover, these statutes address only the procedures for revealing juror lists prior to impanelling. Research reveals no statute that alters the common law practice of naming jurors in open court during voir dire, and ten states have codified this practice.

Nevertheless, the majority relies upon one federal and eleven state statutes to demonstrate that trial judges enjoy discretion to deny access to jurors' names. First, it should be pointed out that a statute enacted against a common law tradition of openness does not necessarily abolish that tradition. In Richmond Newspapers, Globe Newspaper, and Press-Enterprise II, the Supreme Court found a constitutional right of access notwithstanding the existence of statutes that purported to allow closure. Thus, if jurors' names have almost always been public and if the right of access plays a role in the judicial system, the right of access could not be altered by statute.

Moreover, I believe that the statutes cited by the majority fit within a tradition of openness. The statutes suggest that jurors' names should be public in the vast majority of cases; they create a presumption of openness. However, the trial judge may keep information about jurors confidential or limit its use "in the interest of justice." Uniform Jury Selection and Service Act, 13 U.L.A. 437, 454-55 (West 1986). In short, the statutes give the trial judge a measure of discretion. However, the term "discretion," standing alone, is meaningless. Courts must often draw upon sources other than a bare statute to determine the scope of discretion and the standards under which it is exercised. See United States v. Criden, 3d Cir., 648 F.2d 814, 817-19 (1981); Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L.Rev. 635, 636-43 (1971). Thus, constitutional principles may shape and channel the exercise of discretion. The statutes upon which the majority relies purport to allow the use of information about jurors to be "limited in whole or in part." Yet the majority must concede that a court could not give full effect to this language without running afoul of the constitution. If a judge released jurors' names but issued an order barring their publication, he would be "limit[ing]" the "use" of the information. However, his order would also constitute a prior restraint, in direct contravention of the First Amendment. Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 103 S.Ct. 3524, 77 L.Ed.2d 1284 (Brennan, Circuit Justice 1983). Thus, the statutes cannot be viewed in isolation from the First Amendment.

There are, of course, numerous instances in which "the interests of justice" might demand that public access be limited. Jurors' names could be withheld to protect jurors from the discussion of highly sensitive personal information. See Press-Enterprise I, 464 U.S. at 511-13, 104 S.Ct. at 824-26. They could be withheld where there was evidence that jurors might be injured, threatened, or bribed. Thus, there is some scope for the discretion that the majority relies upon. However, in light of the strong tradition of openness that may be drawn from the historical record, and in light of the inherent value of openness that the Supreme Court has recognized, I believe that this discretion cannot be exercised in isolation from constitutional principles.

C.

In determining whether the public enjoys a right of access to a particular judicial proceeding, the Supreme Court has looked not only to history, but also to the structural role that access plays in the process being considered. The issue is "whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740. While this "logic" consideration is a distinct prong of the test announced in Press-Enterprise II and applied by the majority in this case, the Supreme Court has noted that "experience and logic" are complementary considerations, "for history and experience shape the functioning of governmental processes." Id. at 9, 106 S.Ct. at 2740. See also Richmond Newspapers, 448 U.S. at 589, 100 S.Ct. at 2834 ("[A] tradition of accessibility implies the favorable judgment of experience.") (Brennan, J., concurring in the judgment). Thus, in many instances a process that historically has been open has been open for good reason. In citing "a classic example" of a proceeding that fails the "logic" test, the Supreme Court has pointed to the grand jury system. Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740. Not coincidentally, the grand jury system has never been open to the public.

This is not to suggest that a given proceeding could not fail one of the tests in Press-Enterprise II but pass the other. For example, many aspects of a civil trial are often held in public, but since the concerns of the general public are implicated less directly there than in a criminal proceeding, the logic test might not support a right of access. See generally In re Reporters Comm. for Freedom of the Press, D.C. Cir., 773 F.2d 1325, 1336 (1985) (right of access to civil discovery document supported by neither experience nor logic). By contrast, it could be argued that if access would play a significant positive role, it should be allowed regardless of tradition. See In re Reporters Comm., 773 F.2d at 1347 (Wright, J., concurring in part and dissenting in part). Nevertheless, I believe that the core concern of the logic test is to insure that the press cannot force access to those "kinds of government operations that would be totally frustrated if conducted openly." Press-Enterprise II, 478 U.S. at 9, 106 S.Ct. at 2740. By contrast, the majority treats the logic test as the means to prevent "'trivial and unimportant historical practices'" from becoming "'chiselled in constitutional stone.'" Ante, at 749 (quoting In re Reporters Comm., 773 F.2d at 1332). As examples of such trivial practices, the majority points to the reading of judgments aloud in open court and the tradition of impanelling a twelve-person jury. Such practices, while perhaps mere historical accidents, do not implicate the First Amendment; they present "no question of a truncated flow of information to the public." Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1318, 55 L.Ed.2d 570 (1978). Thus, they provide no help in determining the conditions under which access "plays a significant positive role." In situations in which the "flow of information" is involved, however, the critical inquiry is whether the judicial system functions better if that information is released or is kept secret.

The Supreme Court has stressed repeatedly that openness in the criminal justice system has a special value. Openness, and the publicity it invites, serves at least two distinct functions; it "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823. First, openness promotes fairness by providing a check on the arbitrary exercise of power. "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." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 587, 96 S.Ct. 2791, 2816, 49 L.Ed.2d 683 (1976) (Brennan, J., concurring in the judgment). Thus, openness "gives assurance that established procedures are being followed and that deviations will become known." Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823. Openness also promotes fairness by encouraging accurate testimony. Richmond Newspapers, 448 U.S. at 596-97, 100 S.Ct. at 2838-39 (Brennan, J., concurring in the judgment). Second, openness enhances the appearance of fairness by involving the public in the judicial process, providing certainty that justice is being done. As Chief Justice Burger explained:

[O]penness has what is sometimes described as a "community therapeutic value." Criminal acts, especially violent crimes, often provoke public concern, even outrage and hostility; this in turn generates a community urge to retaliate and desire to have justice done. . . . When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest; by contrast, public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected. Press-Enterprise I, 464 U.S. at 508-09, 104 S.Ct. at 823 (citations omitted).

I believe that both of these goals — promoting fairness and the appearance of fairness — are impaired when jurors are cloaked by a veil of anonymity. To understand the value of openness in this context, it is important to analyze the role of the jury within our judicial and political system. By examining the nature of the jury as an institution, one comes to understand that it is fundamentally a public institution, and that anonymity serves to impair both the jury's sense of responsibility to the public and the public's faith in the jury.

Although its roots stretch back to the Middle Ages, the American jury is profoundly democratic. See Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946). See also 1 A. de Tocqueville, Democracy in America 285-91 (H. Reeve tr. 1900) (1st Am. ed. 1840). Jury service is the primary means by which the people participate in the judicial branch of government. The jury serves as the representative of the people, to insure that justice conforms to the sensibilities of the community and "to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975). Too often, however, jury service is seen as an arduous duty rather than a precious right.

Our courts have gone to great pains to insure that juries are drawn from a representative cross section of the community. See, e.g., Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). The importance of insuring that juries are drawn from a representative pool is twofold. First, the democratic nature of the jury protects the defendant. "The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." Strauder v. West Virginia, 100 U.S. at 308. The representative character of the jury insures that the defendant will be judged by the standards of society rather than the biases of distinct groups. Taylor v. Louisiana, 419 U.S. at 530, 95 S.Ct. at 697. Second, drawing jurors from the broad spectrum of society protects the interest of each citizen in participating in government. Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); O'Hair v. White, 5th Cir., 675 F.2d 680 (1982). If groups such as women or racial minorities are excluded from service, "'[s]uch action is operative to destroy the basic democracy and classlessness of jury personnel.'" Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946) (quoting United States v. Roemig, N.D. Iowa, 52 F.Supp. 857, 862 (1943)). "The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of the courts." Id.

In Democracy in America, Alexis de Tocqueville discussed the value of the American jury as a political institution; his observations have lost none of their cogency in a century and a half. He argued that the people's participation in the judicial system strengthens their ability to participate in all forms of government, schooling them in the value of law and reminding them of their rights and responsibilities within society.

The jury . . . serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged, and with the notion of right. . . . The jury teaches every man not to recoil before the responsibility of his own actions, and impresses him with that manly confidence without which political virtue cannot exist. It invests each citizen with a kind of magistracy, it makes them all feel the duties which they are bound to discharge towards society, and the part which they take in the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society. . . .

Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well. 1 A. de Tocqueville, supra, at 289, 291.

The jury represents the public, bringing the public's values and common sense to bear upon the problems of justice. In turn, the institution of the jury educates the public and heightens the civic awareness of each citizen.

If jurors are cloaked in anonymity, the bond between the jury and the public is weakened. While the juror cannot (and should not) be held responsible for his actions in the same way as a prosecutor or other elected official, it is equally important that he experience a keen sense of responsibility to the public whom he serves. Unless each juror knows that his identity is public knowledge, he may never properly appreciate the significance of the power that society has entrusted to him. An anonymous juror may feel that he has been called upon to serve as a fungible cog in the judicial apparatus, to render a verdict that draws meaning only from its enforcement by the state. By contrast, the juror whose identity is public knows that the verdict that he and his fellows render is a piece of handiwork to which their names are attached. This knowledge can only heighten the juror's inner sense of duty, teaching him "not to recoil before the responsibility of his own actions." 1 A. de Tocqueville, supra, at 289. While the announcement of jurors' names does not hold jurors up to the "public scrutiny and criticism" to which publicity subjects "the police, prosecutors, and judicial processes," it nevertheless "guards against the miscarriage of justice" by instilling the sense of personal responsibility that is so vital to the integrity of the jury system. Cf. Nebraska Press Ass'n, 427 U.S. at 587, 96 S.Ct. at 2816 (Brennan, J., concurring in the judgment).

Announcing jurors' names also plays a role in encouraging truthful voir dire testimony and uncovering juror bias. Justice Brennan has suggested that if trials are closed, witnesses may be tempted to lie, secure in the knowledge that their testimony will never leave the courtroom. Richmond Newspapers, 448 U.S. at 596-97, 100 S.Ct. at 2838 (Brennan, J., concurring in the judgment). The interest of the courts in encouraging truthful voir dire testimony of jurors is just as strong as their interest in promoting accurate testimony by witnesses. In this regard, anonymity poses the same danger as complete closure because the anonymous witness or juror knows that his name cannot be attached to his testimony. In a similar vein, if a juror does lie or fail to disclose relevant information during voir dire, the truth may be discovered only if a member of the public comes forward to challenge the fitness of the juror. The majority rejects these arguments out of hand, asserting that they are "based on the presumption that jurors will not respond truthfully." Ante, at 750. The majority argues that voir dire questioning is wholly adequate to uncover bias, and that to suggest otherwise is "to adopt . . . a cynical view of the criminal justice system." Id. I do not wish to overestimate the empirical significance of the public's role in uncovering juror bias. Examples of the public coming forward to question juror qualifications are rare, but do exist. See, e.g., MacKenzie, Study Raises Questions About Mitchell-Stans Juror, Wash. Post, Feb. 5, 1976, at A-2, col. 1 (assistant U.S. attorney challenged impartiality of juror after reading his name in the newspaper). Nevertheless, I am troubled by the majority's insistence that the public should rely upon the courts and counsel to insure that the process is working properly. The majority cannot believe that jurors never lie about their qualifications or that voir dire will always uncover partiality. Yet they are willing to deny the public any role in providing a check on bias. The public can, of course, learn that Pennell Juror No. 103 made certain statements, but no one can evaluate the veracity of these statements without knowing who made them. If the public must rely upon the courts and counsel to insure that jurors are unbiased, I see no reason why it should not also be forced to rely upon the courts and counsel to safeguard all aspects of a fair trial. Yet the Supreme Court has made it clear that the public has a right to oversee the criminal process, to help insure that it is functioning properly. I see no basis for diluting that right in the area of juror selection.

Because anonymity threatens the jury's sense of duty, it must also undermine the public's faith in the jury. Quite apart from the fact that anonymous juries weaken the public's ability to monitor jury selection, there is something inherently suspect about power that is held in anonymous hands. In contrast, announcing the jurors' names reminds members of the public that the jurors are truly the representatives of the community — their "neighbors, fellows, [and] associates." Strauder v. West Virginia, 100 U.S. at 308. It demonstrates, as no other measure can, that the jurors are ordinary citizens — not lawyers, not unelected officeholders, and not nameless faces. When the public observes an anonymous jury, it may be tempted to believe that the administration of justice is someone else's concern or that it is entrusted into the hands of judges and lawyers alone.

The majority condemns Gannett's arguments in favor of the value of openness as "pietistic." Ante, at 751. Perhaps they are. However, I cannot fault a vigorous effort to insure that the processes of the courts are fully open to the observation of the people and that the vital bond between the public and the jury is not weakened.

III

Having established that Gannett enjoys a qualified First Amendment right of access to jurors' names, it remains to complete the final step of the analysis under Press-Enterprise II — the balancing of that right against the perceived threat to Pennell's Sixth Amendment right to a fair trial. The majority declined to enter that realm because it believed Gannett to have failed the threshold test. But because the trial judge completed the circle it is of more than academic interest that the test be fully applied.

When First Amendment rights, qualified or not, are at stake, our standard of review must be quite searching. "Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling government interest, and is narrowly tailored to serve that interest." Globe Newspaper, 457 U.S. at 606-07, 102 S.Ct. at 2619-20. Before entering a restrictive order, the trial court must conduct a hearing on the issue and articulate specific findings to support the order. Press-Enterprise II, 478 U.S. at 13-14, 106 S.Ct. at 2742-43. "If the interest asserted is the right of the accused to a fair trial," the court must find "that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." Id. at 14, 106 S.Ct. at 2743.

All would acknowledge that the fair trial rights of a defendant in a criminal case constitute a compelling interest that might justify limitations on First Amendment rights under certain circumstances. Id. But cf. Nebraska Press Ass'n, 427 U.S. at 611-12, 96 S.Ct. at 2828 (Brennan, J., concurring in the judgment) (no inherent conflict between First and Sixth Amendments). Under limited circumstances, the right of jurors to privacy might also justify limits on public access. Press-Enterprise I, 464 U.S. at 511-13, 104 S.Ct. at 824-26. However, the record is devoid of evidence that would suggest a substantial probability of a threat to either of these interests.

In Press-Enterprise I, the Court shed light on the conditions under which concerns of juror privacy might justify restrictions on access to voir dire. The Court stressed that the right of privacy belongs to the juror and must be asserted by him if it is to be recognized. Moreover, it is implicated only when the questions asked at voir dire probe into sensitive details of a juror's life. Therefore, the Court suggested that the trial judge advise jurors if sensitive questions are likely to be asked and give them the option of requesting that measures be taken to eliminate any possible embarrassment. In his concurrence, Justice Blackmun stressed that the Court did not, and had never, found that jurors have a broad privacy right in their role as jurors. "Despite the fact that a juror does not put himself voluntarily into the public eye, a trial is a public event." Press-Enterprise I, 464 U.S. at 514 n. 1, 104 S.Ct. at 826 n. 1 (Blackmun, J., concurring). Thus, while a prospective juror has an interest in sheltering embarrassing personal information from public knowledge, he has no interest in preventing the public from knowing that he has been called to perform his civic duty by serving on a jury, however lurid the details of the trial that he will observe. A fortiori, a trial judge acting on his own initiative has no interest in keeping this information from the public.

As previously noted, Gannett's conduct in the Lynch trial is central to the trial judge's finding of need for closure, as well as the majority's upholding of that result on different grounds. The majority seems to conclude that Gannett would have published a similar article about the Pennell jurors and that members of the community would then attempt to influence the jury. This conclusion requires a tremendous jump of logic. Although it is safe to assume that Gannett wished to publish the names of the Pennell jurors, there is no evidence on the record that suggests a substantial probability that jurors would be subjected to outside influences. After Gannett published the names of the Lynch jurors, no one attempted to contact the jurors and the trial concluded without any untoward incidents. Moreover, although the Lynch trial may have been the first Delaware trial in which a newspaper published jurors' names, the press in other states have often published the names of jurors in celebrated cases. Neither the State nor the majority has cited any case in which a mistrial was declared or a conviction overturned because members of the general public attempted to influence jurors.

In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the local press went to great lengths to convince the public that a defendant charged with murder was guilty. A flood of extremely prejudicial and sensationalistic publicity preceded and continued throughout the defendant's trial. As a result, jurors were "exposed . . . to expressions of opinion from both cranks and friends." Id. at 353, 86 S.Ct. at 1517. Finding that the defendant had not received a fair trial in "[t]he carnival atmosphere" that prevailed, id. at 358, 86 S.Ct. at 1520, the Supreme Court overturned his conviction. The Court suggested that the trial judge should have taken various steps to limit prejudice. Significantly, none of the suggested measures limited the public's right of access to the trial process; in particular, juror anonymity was never considered by the Court as a means of promoting a fair trial. Moreover, although the Pennell trial was attended by considerable publicity, there is no evidence, and it has not been suggested, that the press has engaged in the egregious attempt to prejudice public opinion that was present in Sheppard. Accordingly, I find no basis for concluding that Pennell's Sixth Amendment rights would have been jeopardized by the release of jurors' names.

IV

The denial of access order issued by the trial judge was prompted by an understandable concern that the publicity attendant upon the Pennell trial, perhaps unprecedented in the history of this State, posed a threat to the court's ability to assure the defendant a fair trial. The use of an anonymous jury to accomplish that result, however, implicates the public's and the press' fundamental right of access to the trial process, which is assured by the First Amendment. Because the decision to impanel an anonymous jury was made contrary to precedential standards and without a balancing of competing constitutional rights, I consider it erroneous as a matter of law. Since the majority validates that result by its ruling, I must respectfully dissent.