Secret Justice: A continuing series

The American judicial system has, historically, been open to the public, and the U.S.

Supreme Court has continually affirmed the presumption of openness. However, as technology

expands and as the perceived threat of violence grows, individual courts attempt to keep

control over proceedings by limiting the flow of information. Courts are reluctant

to allow media access to certain cases or to certain proceedings, like jury selection. Courts

routinely impose gag orders to limit public discussion about pending cases, presuming that there

is no better way to ensure a fair trial. Many judges fear that having cameras in courtrooms will

somehow interfere with the decorum and solemnity of judicial proceedings. Such steps,

purportedly taken to ensure fairness, may actually harm the integrity of a trial because court

secrecy and limits on information are contrary to the fundamental constitutional guarantee of a

public trial.

The public should be the beneficiary of the judicial system. Criminal proceedings are instituted in

the name of "the people" for the benefit of the public. Civil proceedings are available for

members of the public to obtain justice, either individually or on behalf of a "class" of persons

similarly situated. The public, therefore, should be informed -- well informed -- about trials of

public interest. The media, as the public's representative, needs to be aware of threats to

openness in court proceedings, and must be prepared to fight to insure continued access to trials.

In this series, the Reporters Committee takes a look at key aspects of court secrecy and how they

affect the newsgathering process. We will examine trends toward court secrecy, and what can be

done to challenge it.

The first article in this "Secret Justice" series, published in Fall 2000, concerned the growing

trend of anonymous juries. The second installment, published in Spring 2001, covered gag orders

on participants in trials. The third installment, published in Fall 2001, covered access to

alternative dispute resolution procedures.

This report was researched and written by Ashley Gauthier, who is the 2001-2002

McCormick-Tribune Legal Fellow at the Reporters Committee.