In a case dealing with access to tapes admitted into evidence during a criminal trial, the Supreme Court recognized a common-law right “to inspect and copy public records and documents, including judicial records and documents.”Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). Circuit courts differ on how they interpret the common-law presumption of access to trial records. The Ninth Circuit noted that “[t]wo circuits have adopted tests that contain built-in biases for or against disclosure. The middle-ground stance … requires that the trial court start with ‘a strong presumption’ in favor of access, to be overcome only ‘on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.’” Valley Broadcasting v. U.S. Dist. Court, 798 F.2d 1289, 1293 (9th Cir. 1986) (citations omitted).
Some lower courts also have recognized a First Amendment presumption of access to documents admitted into evidence and other trial records, with the Fourth Circuit noting that “[i]t is undisputed that there is a right of access to judicial records filed in connection with criminal proceedings. Although the Supreme Court has stated no more than that this right is grounded in the common law, the Fourth Circuit has explicitly identified the right as arising from the First Amendment. In re Associated Press, 172 Fed. Appx. 1, 3 (4th Cir. 2006) (citations omitted); but see In re Providence Journal Co., Inc., 293 F.3d 1, 16 (1st Cir. 2002) (Nixon “did not confer the right to replicate evidentiary materials in the custody of the court …. By affording interested members of the media ample opportunity to see and hear the tapes as they are played for the jury, the court has fulfilled its pertinent First Amendment obligations.”).