Closing the courtroom

The First Amendment to the U.S. Constitution guarantees that American criminal court proceedings are presumptively open to the public.  As the U.S. Supreme Court has explained, the public's presumptive right of access to criminal proceedings is rooted in both logic and history. 

Under a closed system, the Court said, the public is denied the cathartic experience of knowing how a case has been resolved, and hampered in its ability to discuss government affairs. Under an open system, the public places a check on corruption in the judicial system, and all players — lawyers, witnesses and judges — are more likely to play their roles dutifully.  In the Court's words, "a presumption of openness inheres in the very nature of a criminal trial under our system of justice," and "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."

The Supreme Court has determined that a wide spectrum of criminal proceedings are presumptively open, starting with jury selection and preliminary hearings. In fact, the Court has determined that any aspect of criminal proceedings would be presumptively open if the “experience and logic” of access supported openness.  Under this analysis, courts are to look at the history of public access to the particular type  of proceeding to determine if there was “experience” with openness, and would examine the risks and benefits of access to decide the “logic” of allowing that openness.

Many lower courts have extended the same First Amendment standards to civil cases. 

The presumption of public access is not absolute, however. In some cases, courts identify particular information that must be kept from public view. The question then becomes how much secrecy is really necessary to protect the information at issue.  

The Supreme Court has ruled that even where there is a truly compelling need to keep particular information secret, the First Amendment requires that the closure be no broader than necessary to protect it.  In addition, a court considering secrecy must consider alternatives to closing the proceedings, and must make findings on the record that are adequate to support the closure. 

In addition to the public's constitutional right of access, many courts recognize that the common law provides an independent basis for accessing some courtroom records and proceedings. The presumption of openness afforded by the common law, however, is generally considered to be easier to overcome than that of the constitutional right.