F. Pretrial motions and records


The Supreme Court has not ruled on the issue, but the Ninth Circuit has ruled that in determining “the first amendment right of access,” there “is no reason to distinguish between pretrial proceedings and the documents filed in regard to them.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

Thus, federal circuit courts have recognized a right of access to a variety of pretrial documents. See, e.g., U.S. v. Smith, 776 F.2d 1104, 1111 (3rd Cir. 1985) (“the First Amendment right of access recognized in Richmond Newspapers and the common law right of access … extend to bills of particulars because we think them more properly regarded as supplements to the indictment than as the equivalent of civil discovery”);U.S. v. Anderson, 799 F.2d 1438, 1442 (11th Cir. 1986) (agreeing that indictments are public documents, but “declin[ing] to apply a mechanical rule whereby a bill of particulars is automatically accorded the status of a supplement to an indictment”); Seattle Times Co. v. U.S. Dist Ct., 845 F.2d 1513, 1517 (9th Cir. 1988) (“the press and public have a right of access to pretrial release proceedings and documents filed therein”); U.S. v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) (the First Amendment provides a “right of access to suppression hearings and accompanying motions,” but this right “does not extend to the evidence actually ruled inadmissible in such a hearing”); Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991) (“In accord with the rulings of our sister Second, Fourth, and Ninth Circuits, we now find that plea agreements have traditionally been open to the public, and public access to them ‘enhances both the basic fairness of the criminal [proceeding] and the appearance of fairness so essential to public confidence in the system.’ Therefore, there is a first amendment right of access to them.”) (citations omitted).

6th Cir.

The Sixth Circuit recognizes a qualified right of access to documents and records pertaining to pretrial conflicts of interest and judge recusal proceedings. See United States v. Presser, 828 F.2d 340 (6th Cir. 1987); United States v. Presser, 828 F.2d 330 (6th Cir. 1987) (“Presser II”).