Introduction -- Criminal proceedings

Courtrooms traditionally have been open to the public, and anyone who wanted to watch a trial could, as long as there was a seat available.

However, when courts recognize reporters’ rights to attend proceedings or review court documents, the rights are rarely absolute. Instead, the courts usually apply a balancing test to determine whether the interest in disclosure outweighs any asserted counterbalancing interest in confidentiality. The standard the courts use in striking that balance depends on the source of the right. Courts have found that the media have a right of access to judicial records and proceedings under common law, the First Amendment and state or federal statutes. These methods of access are not exclusive; courts may find a right of access under both the common law and the First Amendment.

Under common law — the traditional court-made law that U.S. courts adopted long ago from English standards — courts have recognized a presumed right of access to criminal and civil court records.1 However, this common-law right of access is not absolute.2 The presumption of open access to judicial records may be rebutted by countervailing interests that weigh against disclosure.3 The U.S. Supreme Court has said that the decision whether to grant access under the common-law right “is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”4

Because courts engage in a simple balancing test, gaining access under the common-law right is more difficult than under the First Amendment, where closure must pass a higher level of scrutiny.

In Richmond Newspapers, Inc. v. Virginia and other cases that followed, the U.S. Supreme Court established a two-part test to determine whether the press and public have a First Amendment right of access to criminal proceedings.5 First, the Court must consider “whether the place and process have been historically open to the press and general public.”6 Second, the Court must consider “whether public access plays a significant positive role in the functioning of the particular process in question.”7 Since Richmond Newspapers, courts have extended this “history and logic” test to establish a constitutional right of access to criminal and civil court proceedings and records.8

When the First Amendment right of access applies, the Supreme Court has held that a presumption of disclosure requires courts to grant access unless specific, on-the-record findings demonstrate that closure is “necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.”9

 

Criminal proceedings

In criminal cases, courts issuing closure orders most often point to the defendant’s right to a fair trial by an impartial jury. However, general fear that publicity will jeopardize a defendant’s right to a fair trial is usually insufficient to close a criminal proceeding.12  In addition, sometimes judges consider closing proceedings in light of privacy interests of witnesses or jurors, or the emotional trauma of testifying in public, particularly in sexual assault cases.13

Trial secrecy has been increasing in recent years, prompted by controversial, high-profile trials like those of O.J. Simpson, Theodore Kaczynski, Timothy McVeigh, and, more recently, individuals accused of supporting terrorism.

Until fairly recently, anonymous juries (where information about jurors’ names, addresses, ages or professions is sealed) were rarely used and limited primarily to cases where a credible threat to the safety or well-being of jurors existed. For example, courts have approved the use of anonymous juries in organized crime trials, where a serious risk to jurors is posed by people seeking to influence them or to retaliate after a verdict. Anonymous juries also were used in the trials of Branch Davidian survivors in Waco, Texas, Oliver North, Kaczynski, and the 1993 World Trade Center bombers.15

But judges are increasingly limiting access to juror information in a wider array of cases, citing privacy concerns. Juror identities were kept secret in criminal cases against Martha Stewart and investment banker Frank Quattrone, but both orders were overturned by the U.S. Court of Appeals in New York City (2d Cir.)16

Federal courts now often refuse to disclose any information on jurors after a 2001 policy change by the federal courts’ governing body that “documents containing identifying information about jurors or potential jurors” should no longer be available at the court house or online.17

However, some appeals courts have ruled that the First Amendment gives the public a general right of access to names and addresses of jurors.18

In January 2010, the U.S. Supreme Court ruled that a Georgia judge could not exclude the public from jury selection because a criminal defendant’s right to a public trial includes the juror screening process known as voir dire.19 The Court found that this principle was so well established, particularly through the public’s First Amendment right of court access, that it did not need to hear arguments in the case, instead vacating and remanding the Georgia Supreme Court’s decision.

In July 2010, the U.S. Court of Appeals in Chicago (7th Cir.) ordered the judge presiding over the corruption trial of former Illinois Gov. Rod Blagojevich to hold a hearing to determine whether juror names should be released before the end of the trial. The appeals court held that U.S. District Judge James Zagel “acted without evidence” when he originally ruled that the jurors in the high-profile trial should remain anonymous until after the trial was completed. However, a verdict was reached before the court reconsidered its order, and the jurors’ names were soon released.

Unlike criminal courtroom proceedings, grand jury proceedings have historically been conducted in secret. In May 1998, for example, a federal appeals court in Washington, D.C., affirmed a district court decision denying the media access to court proceedings and documents related to President Bill Clinton’s claim of executive privilege regarding the grand jury’s investigation of the Monica Lewinsky matter. The court held that the news media do not have a First Amendment right to cover grand jury proceedings, which traditionally operate in secrecy. According to the Court, recognizing a First Amendment right to attend “ancillary” proceedings would “create enormous practical problems in judicial administration.”20

The U.S. Supreme Court has never decided whether the public has a constitutional right of access to juvenile court proceedings.21 Although juvenile courts were created in the late 19th century as a reform movement that encouraged public openness, juvenile courts were closed to the public for much of the 20th century. As a policy matter, it was believed that youthful offenders should not be stigmatized forever because of one mistake. But high-profile crimes involving minors, such as the March 1998 school shooting in Jonesboro, Ark., have contributed to a reversion in public attitudes about the openness of the juvenile justice system and a youthful offender’s right to privacy.22 The rules under which access is allowed vary by jurisdiction, and usually can be found in state statutes governing juveniles or family courts.23


Notes:

1. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (recognizing a common law right of access to judicial records and documents); United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) (recognizing common-law right of access to documents filed with court that relate to performance of judicial function and aid judicial process); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 662 (3d Cir. 1991) (finding a common law right of access to documents submitted with summary judgment motion); Rushford v. New Yorker Magazine, 846 F.2d 249, 253 (1988) (same); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066-67(1984) (finding a common law right of access extends to civil court records); Brown & Williamson Tobacco Corp. v. Federal Trade Comm’n, 710 F.2d 1165, 1179 (1983) (recognizing “strong common law presumption in favor of public access to court proceedings and records”).

2. Nixon, 435 U.S. at 598.

3. Republic of Philippines, 949 F.2d at 662.

4. Nixon, 435 U.S. at 599.

5. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).

6. Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”), 478 U.S. 1, 8 (1986).

7. Id.

8. See, e.g., Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) (criminal trials); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (criminal trials); Press Enterprise v. Superior Court (“Press Enterprise I”), 464 U.S. 501 (1984) (criminal jury selection); Press Enterprise II, 478 U.S. 1 (1986) (criminal preliminary hearing); In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) (sentencing hearings); see infra fn. 22.

9. Press-Enterprise I, 464 U.S. 501 (1984) (holding that order sealing transcript of voir dire - the questioning of potential jurors - in trial involving rape and murder of teenage girl violated First Amendment) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)).

12. See, e.g., Ex parte Consolidated Publishing Co., 601 So.2d 423 (Ala. 1992).

13. See Reid v. Superior Court, 64 Cal. Rptr. 2d 714 (1997) (holding that a trial judge cannot prohibit contact between a defendant’s lawyers and investigators and the prosecution’s witnesses solely to protect their privacy, rejecting the trial court judge’s conclusion that “embarrassment” to witnesses justified denying the defense access to them).

15. The trend toward anonymous juries shows no sign of abating. In December 1996, the Los Angeles Superior Court adopted a policy of juror anonymity in all criminal trials, relying on a state civil procedure rule that requires the names of jurors to be sealed following the verdict in a criminal trial. Memorandum on Juror Confidentiality (L.A. County Super. Ct. Dec. 3, 1996).

16. ABC v. Stewart, 360 F.3d 90 (2d Cir. 2004); U.S. v. Quattrone, 402 F.3d 304 (2d Cir. 2005).

17. “Guidance for Implementation of the Judicial Conference Policy on Privacy and Public Access to Electronic Criminal Case Files, ” available at http://www.privacy.uscourts.gov/crimimpl.htm (undated).

18. See, e.g., In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990); In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982).

19. Presley v. Georgia, 130 S.Ct. 721, 78 USLW 4051, 38 Media L. Rep. 1161 (U.S., Jan. 19, 2010).

20. In re Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998).

21. See, e.g., United States v. A.D., 28 F.3d 1353 (3d Cir. 1994) (holding that federal courts may grant access to juvenile proceedings and records on case-by-case basis, under Juvenile Delinquency Act, 18 U.S.C. §§ 5031-42); United States v. Three Juveniles, Globe Newspaper Co., 862 F. Supp. 651 (D. Mass. 1994), aff’d 61 F.3d 86 (1st Cir. 1995) (holding that the Federal Juvenile Delinquency Act creates a presumption that juvenile court proceedings and records will be closed to the public).

22. See Providence Journal v. Rodgers, 711 A.2d 1131 (R.I. 1998) (the Rhode Island Supreme Court finds that court policy sealing all documents in child molestation cases is too broad). See also New York Uniform Rules of Family Court § 205.4 (1997) (statute which presumptively opens juvenile courts to the public); Md. R. Civ. P. 11-104(f), 11-121(a) (1998) (court rules in Maryland which guarantee that information about juvenile proceedings will be made available to the public before they take place).

23. The Reporters Committee publishes “Access to Juvenile Courts, ” a guide to state laws regarding juvenile courts.