04F

F. Pretrial motions and records

F. Pretrial motions and records

Overview

Pennsylvania

The Pennsylvania Supreme Court has recognized a public right of access to pretrial proceedings under both the First Amendment, see Berrigan, 501 A.2d at 232, and the Pennsylvania Constitution, see Hayes, 414 A.2d at 322.

F. Pretrial motions and records

Overview

11th Cir.

The Eleventh Circuit recognizes a qualified First Amendment right to attend criminal trials, including most pretrial motions. See U. S. v. Ellis, 90 F.3d 447 (11th Cir. 1996). 

F. Pretrial motions and records

Overview

2nd Cir.

The Second Circuit has permitted limited redaction and sealing of documents related to motion hearings as the documents involved compelling interests in privacy, law enforcement, and government investigation. See Palmer v. John Doe, 2014 WL 2521315 (2d Cir. 2014).

F. Pretrial motions and records

Overview

Texas

Though the First Amendment right of access extends to preliminary motions, it must be balanced against the state’s interest in continuing investigation and ensuring witness cooperation. See United States v. Brown, 447 F. Supp. 2d 666 (W.D. Tex. 2006).

F. Pretrial motions and records

Overview

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”).

F. Pretrial motions and records

Overview

California

California recognizes a First Amendment right of access to pleadings, though this right is not absolute. See Copley Press, Inc. v. Superior Court of San Diego County, 2002 WL661559 (Cal. Ct. App. 2002). 

F. Pretrial motions and records

Overview

Maryland

In Baltimore Sun Co. v. Colbert, 323 Md. 290, 593 A.2d 224 (1991), the Court of Appeals considered the public right of access to a pretrial hearing in a death penalty case in which the defendant sought to enforce the terms of a plea agreement. The Court of Appeals found that the public had a qualified right of access to both the hearing on the motion and to the underlying pleadings, and remanded the case for a determination of whether the presumption of access had been overcome and, if so, to ensure that any sealing order was as narrow as possible.

F. Pretrial motions and records

Overview

Kansas

As noted in I. Introduction: Access rights in the jurisdiction/E. Procedural prerequisites to closure, supra, the Kansas Supreme Court has adopted a presumption of openness that applies to pretrial matters.  The state supreme court’s position is that:

“Before pretrial proceedings can be closed or any record sealed, the…moving party must establish that: (1) a clear and present danger to the fairness of the trial would exist if the information were publicly disclosed, and (2) the prejudicial effect of such information on the fairness of the trial cannot be avoided by reasonable alternative means….”

Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1183 (Kan. 1981), quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association's Standing Committee on Association Standards for Criminal Justice (August, 1978).