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).


Florida law is clear that the presumption of access attaches to criminal court records at any stage of a judicial proceeding. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). The Florida Supreme Court held, in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1983), that to justify closure of a criminal court record, including pretrial motions, the proponent of closure must overcome the presumption of openness and show that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. 426 So. 2d at 6.

Pretrial motions to make court records confidential often arise in the suppression context where the defense claims disclosure would prejudice the defendant’s Sixth Amendment rights. Typically, such motions involve sealing confessions. According to Florida statute, any information revealing the “substance of a confession” of a person arrested is exempt from disclosure until such time as the criminal case is finally determined by adjudication, dismissal or other final disposition. Fla. Stat. § 119.071(2)(e). In Times Pub. Co. v. State, 827 So.2d 1040, 1042 (Fla. Dist. Ct. App. 2002), the Second District Court of Appeal held that the lower court’s decision to seal an entire interview transcript and tape – when a substantial portion was unrelated to the defendant’s confession - constituted a departure from the essential requirements of law, and only that portion that could be characterized as the substance of the defendant’s confession could be sealed.