Covering courts: access to evidence

When attorneys show evidence to juries and judges during trial, the photographs and video can also be seen by anyone in the courtroom. Judges’ decisions, which are based on such evidence, are likewise a public record unless the case itself is sealed. But those facts do not guarantee the public access to the physical evidence in a trial. And gaining access to the same material once a trial has ended can be even more complicated, as trial courts often return the evidence to the parties or the rightful owners. As such, taking steps to help coordinate the logistics of getting access to these materials as soon as you know you plan to cover a trial often helps the process go smoother and faster.

As noted in other sections, the public's right of access to judicial records is protected by various legal sources. After-the-fact access to evidence, however, is less certain, although some courts have adopted the view that the public has a right to access such evidence, absent exceptional circumstances.

For example, the U.S. Court of Appeals in New York (2nd Cir.) ruled over thirty years ago that "[o]nce the evidence has become known to the members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction."

More recently, the U.S. Court of Appeals in Richmond, Va. (4th Cir.) reached a similar conclusion in the terrorism trial of Zacarias Moussaoui, ordering the trial court to provide the media with next-day access to all documentary evidence that had been published to the jury. Like the Second Circuit, the Fourth Circuit based its decision on the public's right of access to judicial records.

Other courts, however, have declined to provide public access to copies of evidence used in court. A  federal court in Colorado, for example, denied a request for access to autoposy photographs used in court, citing privacy concerns.