Massachusetts

Delinquency proceedings: The public is generally excluded from juvenile delinquency hearings in Massachusetts except in cases where the child is charged with murder in the first or second degree or where the state has proceeded by indictment. Mass. Gen. Laws Ann. ch. 119, § 65 (West 2012). In News Group Bos., Inc. v. Commonwealth, the trial judge, pursuant to the 1990 statutory amendment that provided a right to attend juvenile court sessions involving juveniles charged with murder, allowed public access to delinquency proceedings involving five juveniles charged with murder, aggravated rape and robbery. The Supreme Judicial Court of Massachusetts found it “reasonably clear that the Legislature intended generally that a judge not exclude the public from such a hearing . . . The Legislature could rationally conclude that the public interest in the proper disposition of a murder charge against a juvenile, the most serious of crimes (perhaps barring treason), warrants opening the courtroom to all proceedings.” Although the court did not adopt a standard governing closure, it did hold that “the presumption is . . . that the courtroom will be open.” News Group Bos., Inc. v. Commonwealth, 568 N.E.2d 600, 601, 603, 604 (Mass. 1991). A few years later, the state’s high court also held that a newspaper should have full access to the court cases involving Robert and Andrea Berkowitz, who were charged with 10 counts of serving alcohol to a minor and contributing to the delinquency of a minor after they allegedly served beer and liquor to their son and his friends at their home. The court found that the lower court’s order, which included a prohibition on publishing the name of any child who had engaged in delinquent conduct and photographing the face of any child who testified, was an unlawful prior restraint on publication. The court stated that the lower court failed to provide detailed findings of fact that would clearly show a compelling state interest. George W. Prescott Publ’g Co. v. Stoughton Div. of the Dist. Court, 701 N.E.2d 307, 311 (Mass. 1998).

Delinquency records: Records of a delinquency proceeding conducted by indictment are open to the public in the same manner as adult criminal records. All other delinquency records are withheld from public inspection except with the judge’s consent. Mass. Gen. Laws Ann. ch. 119, § 60A. In fact, the News Group Boston court held that the statutory requirement of opening juvenile courtrooms to the public in cases involving murder does not necessarily extend to the records of those proceedings. News Group Bos., 568 N.E.2d at 604. A juvenile’s probation officer must publicly disclose the name of any juvenile between the ages of 14 and 16 who previously has been adjudicated delinquent at least twice for acts that would be punishable by imprisonment in state prison if the juvenile were an adult and the juvenile is charged with another such offense. Mass. Gen. Laws Ann. ch. 119, § 60A.

Dependency proceedings and records: Juvenile dependency proceedings are closed to the general public in Massachusetts, and publication of the names of people involved in the closed hearings is prohibited. Id. § 38.

Restrictions on coverage: Massachusetts law allows a trial judge to close the courtroom when a victim 17 years old or younger is testifying about a sexual offense. Id. ch. 278, § 16A. Before doing so, however, the judge must determine that closure is necessary to prevent psychological harm or trauma to the minor victim and narrowly tailored to serve that interest. The court also must consider reasonable alternatives to closure. In deciding whether testifying in open court would cause the minor victim to suffer psychological harm or trauma, the court will consider the child’s age, maturity, nature of the alleged crime and desires and interests of the victim and the victim’s parents and relatives. Commonwealth v. Martin, 629 N.E.2d 297, 301—02 (Mass. 1994). Massachusetts law also allows victims and witnesses 14 years old or younger to testify about a sexual offense outside the presence of the defendant via video-recorded testimony or closed-circuit television. The statute appears to allow the media and public to remain in the courtroom when this testimony is broadcast there. Mass. Gen. Laws Ann. ch. 278, § 16D. Court rules governing electronic access to the courts prohibit photographing or recording minors without the judge’s consent. Mass. Sup. J. Ct. R. 1:19.

In March, the Supreme Judicial Court ruled that a judicial order that a news organization — in that case WBUR-FM’s OpenCourt program, which live-streams daily video and audio recordings of proceedings in Quincy District Court and posts the footage online two days later — redact material presented during open court is an unconstitutional prior restraint on publication. One of the issues on appeal was a broadcast from a dangerousness hearing in a criminal case in the Quincy court during which the name of an underage alleged victim of sexual abuse was accidentally blurted. OpenCourt challenged the judge’s order to redact the victim’s name from the footage, and to temporarily put on hold public access to the online archive of its broadcasts. “We . . . agree that on the record of this case, the judge’s order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor’s privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests,” the court said. Commonwealth v. Barnes, 963 N.E.2d 1156, 1161 (Mass. 2012).

The Massachusetts Legislature is currently considering Senate bill 785, which would impose criminal charges against members of the news media and others who, in connection with any criminal proceeding, disclose documents that divulge information about a child involved in the proceeding, regardless of the source of such documents or information. The Reporters Committee for Freedom of the Press and a number of local media organizations and advocacy groups submitted comments opposing the measure, arguing that it goes too far by seemingly prohibiting the publication of all information about child witnesses in all criminal proceedings and amounts to an unconstitutional prior restraint on publication. In early February, the Joint Committee on the Judiciary held a public hearing on the bill, but there has been no action since.