Access to courts

Are you being kept out of a judicial proceeding, or denied access to court documents? Do you need to contest a sealing order that has placed newsworthy information off-limits?

Courtrooms traditionally have been open to the public, but judges often close proceedings or seal documents when they feel secrecy is justified. Criminal and civil courts and documents are both usually presumptively open, depending on state laws, and most states allow some level of camera coverage of trials. You have the right to fight for openness in courts, and oppose gag orders on parties.

Common questions

Rules on the use of electronic media in courtrooms vary by jurisdiction. Many federal, as well as state, courts have traditionally been opposed to the use of cell phones, laptops and other technology in court.

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Parties in litigation generally participate in a pre-trial "discovery" process, during which they exchange documents and other information about the case. Public access to these records can be quite limited, on the theory that the presumptive right of public access that accompanies other court documents does not apply to documents that are not filed with the court.

The U.S. Supreme Court recognized in its 1978 landmark case Nixon v. Warner Communications, Inc. a common-law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon involved more than 20 hours of tape-recorded conversations held in former President Richard Nixon’s White House and Executive Office Building offices.

Until fairly recently, anonymous juries (where information about jurors’ names, addresses, ages or professions is sealed) were rarely used and limited primarily to cases where a credible threat to the safety or well-being of jurors existed. For example, courts approved the use of anonymous juries in organized crime trials, where a serious risk to jurors is posed by people seeking to influence them or to retaliate after a verdict.

The U.S. Supreme Court held in 1981 that states may adopt rules permitting cameras and recording equipment in their courts. Since then, all 50 states have done so, but the rules vary widely. In some states visual and audio coverage is permitted in all types of court proceedings that are public, and in others such coverage is permitted only in appellate courts.

Trial courts sometimes attempt to limit access and reporting on pretrial court matters out of a concern that the pretrial publicity will affect the defendants' right to a fair trial.  These court-ordered restrictions can range from outright bans on media reporting to gag orders on the trial participants to the closing of courtroom proceedings and records. 

The Supreme Court has recognized that the public has a qualified  right to attend and monitor the jury selection process (also known as "voir dire"), at least in criminal trials. Lower court decisions that recognize a presumptive First Amendment right of access to pretrial civil proceedings support public access to civil jury selection as well. 

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.

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. 

With the federal government's use of military courts to try more terrorism suspects in recent years, the issue of public access to the military justice system remains a key issue. Enforcing the public's right to monitor and report on the proceedings can be a challenge in practice.

Access to juvenile delinquency proceedings varies by jurisdiction.  But as a general matter, the public typically has less access to juvenile court proceedings than to other court cases, particularly criminal proceedings.

Reporters covering court cases are often stymied by the fact that some cases are conducted entirely in secret, never appearing on a public docket.