Rape trial: Already, there is a loser in the Kobe Bryant case

Whoever wins that infamous rape case in Colorado — basketball star Kobe Bryant or the woman who has accused him — there already is one big loser: the Bill of Rights.

The Colorado Supreme Court has ordered the news media not to reproduce data from the transcript of a hearing in the case, even though the transcript is an accurate, word-for-word record of the hearing.

The order cancels, to a large degree, the defendant’s right to an open trial. Accounts of every part of the proceedings should be open. Otherwise the prosecution is not carried out in the full view of the public.

The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...”

The press has a right, or rather, a duty, to report the proceedings in a trial. The fervent activity of a free press is the main guarantee that the workings of government are open, and openness is especially important in courts. The First Amendment says the press is not to be restrained.

The hearing in the Kobe Bryant case involved the issue of his accuser’s sexual history. A court clerk sent the transcript of the hearing by e-mail to some reporters.

In most states, an accuser’s sexual background cannot be admitted as evidence in a rape trial unless it is shown to be relevant. This prevents defendants from delving into an accuser’s sexual history just to discourage prosecution. The hearing was held to determine relevancy.

In many cases, the sexual behavior of a prosecuting witness is germaine.

No finding about that has been made in the Bryant case, but there have been indications that the accuser had engaged in copulation with two other men — presumably, voluntarily — around the time that she made the accusation against Bryant, who says his encounter with her was consensual.

Under those circumstances, the facts about her history could be extremely important to the administration of justice. And the more important a matter in a trial, the more important it is that it be public.

Published in Editorials on August 4, 2004 12:22 PM