C. Trials

Overview

The Supreme Court has not directly addressed this, though a plurality found that “historically both civil and criminal trials have been presumptively open.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (plurality opinion). Lower courts have extended the presumption of access to civil trials, with the California Supreme Court noting that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). Likewise, the District of Columbia high court noted that “[n]o court has expressly concluded that the first amendment does not guarantee some right of access to civil trials.” Mokhiber v. Davis, 537 A.2d 1100, 1107 n.4 (D.C. 1988).

Court rules also mandate openness. For example, Fed. R. Civ. Proc. 77(b) provides that “[e]very trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom,” and Fed. R. Civ. Proc. 43(a) provides that “the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise.” Many states have similar rules codifying the presumption of access to civil trials.

6th Cir.