A. In general
The Supreme Court and Tenth Circuit have consistently recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (“a presumption of openness inheres in the very nature of a criminal trial under our system of justice”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602–03 (1982) (recognizing First Amendment access right and striking down statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial”); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505 (1984) (“Press-Enterprise I”) (constitutional presumption of openness to voir dire proceedings); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986) (“Press-Enterprise II”) (recognizing right of access to preliminary hearings); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (same); Waller v. Georgia, 467 U.S. 39, 47 (1984) (“any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors”); United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998) (recognizing presumptive right).
The Supreme Court and Second Circuit have long recognized a right of access to criminal cases. See, e.g., ("to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected discussion of governmental affairs is an informed one") (internal quotation marks omitted); Press-Enterprise II, 478 U.S. at 13 (recognizing the right of access to preliminary hearings in criminal cases); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 604–05 (1982); Ayala v. Speckard, 89 F.3d 91 (2d Cir.), modified on denial of rehearing, 102 F.3d 649 (2d Cir. 1996) (ruling that a defendant's constitutional right to a public trial was violated where a trial judge closed the courtroom and failed to articulate alternatives to closure that would adequately protect the state interest justifying the closure)).
The First Amendment guarantees the press a right of access to observe criminal trials, just as members of the public have such a right: to attend, listen, and report. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997); United States v. Chagra, 701 F.2d 354, 361 (5th Cir. 1983). But this does not include a right to televise, record, or otherwise broadcast trials. United States v. Edwards, 785 F.2d at 1294.
The Fifth Circuit has declared that there is a presumption of openness that attaches to a criminal trial, but that it can be closed if there is an overriding interest based on court findings that closure is essential to preserve higher values, and so long as the closure order is narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.
There is also a Sixth Amendment right to a public criminal trial, exercisable by a defendant. By subjecting criminal trials to “contemporaneous review in the forum of public opinion,” the Sixth Amendment prevents the abuse of judicial power, discourages perjury, encourages unidentified potential witnesses to come forward and instills in the public the perception that its courts are acting fairly. Rovinsky v. McKaskle, 722 F.2d 197, 198 (5th Cir. 1984). This right attaches only to the defendant in a criminal trial, and thus does not provide the media with any additional rights of access.
“The public and the press have a constitutional right of access to attend criminal trials. . . . While the Constitution nowhere explicitly guarantees the right to attend criminal trials, such a right is implied from the first amendment's ‘core purpose’ of assuring free public discussion.” United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985) (citations omitted). A party seeking to close a hearing in a criminal case “must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” United States v. Blagojevich, 612 F.3d 558, 564 (7th Cir. 2010) (quoting Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210 (1984)). “[B]efore closing any part of the criminal process to the public . . ., a judge not only must make the findings required by Waller but also must consider alternatives to secrecy, whether or not the lawyers propose some.” Id. at 565.
The public generally has a right of access to most criminal proceedings in Alabama, as Rule 9.3(b) of the Alabama Rules of Criminal Procedure provides that “[a]ll proceedings shall be open to the public, unless otherwise provided by law.” Ala. R. Crim. P. 9.3(b) (2019). One major exception, however, is a grand jury proceeding: under Alabama law, grand jury proceedings are always closed. See Ala. Code § 12-16-214 (2019) (“it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate”); see also Ala. R. Crim. P. 9.3 cmt. (“All criminal proceedings after arrest, other than grand jury proceedings, should be public.” (citing Jackson v. Mobley, 47 So. 590 (Ala. 1908))). Additionally, juvenile proceedings are closed by statute. See Ala. Code § 12-15-129.
There is a general right to access criminal trials in Arizona. See Ariz. R. Crim. P. 9.3(b)(1) (“All proceedings must be open to the public, including news media representatives, unless the court finds, on motion or on its own, that an open proceeding presents a clear and present danger to the defendant’s right to a fair trial by an impartial jury.”).
Though there is a presumption of openness in Arkansas, some proceedings can be closed. Arkansas Rule of Civil Procedure 77(b) requires that all trials and hearing be public except as otherwise provided by law.
Arkansas Code Annotated § 16-10-105, states that “The sittings of every court shall be public, and every person may freely attend the sittings of every court.” Courts applied the statute during voir dire examination in Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984), and during a suppression of evidence hearing in Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979). Another Arkansas statute, however, requires the closure of proceedings in juvenile criminal cases. Ark. Code Ann. § 9-27-325(i).
Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial. The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979). In Star Journal, the court held that a “judge may close a pretrial hearing only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.” Id.; see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Whitman, 205 P.3d 371, 379 (Colo. App. 2007) (“It has long been recognized that the public and the press have a qualified First Amendment right to attend a criminal trial.”); Stapleton v. Dist. Court, 499 P.2d 310, 311 (Colo. 1972) (declining to require the trial court to hold a pretrial suppression hearing closed to the public and news media); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).
In dicta, the Colorado Supreme Court recently reiterated that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of “unfettered” access to criminal court records. People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018).
“Georgia law . . . regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law” because the Georgia Constitution “point blankly states that criminal trials shall be public.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982) (emphasis in original). In addition, “[a] Georgia trial court judge must approach these issues possessed of less discretion than [his] federal counterpart because our constitution commands that open hearings are the nearly absolute rule and closed hearings are the very rarest of exceptions.” Id.
A party seeking to close any aspect of a criminal proceeding in Georgia must: “demonstrate on the record by ‘clear and convincing proof’ that closing the hearing to the press and public is the only means by which a ‘clear and present danger’ to his right to a fair trial or other asserted right can be avoided.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 579 (1982); see also Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 580–81 (1996) (“A review of the records and the superior court’s order establishes uncontrovertibly that there was no evidence adduced in this case to support the superior court’s finding that there is a ‘clear and present danger’ that [defendant] will not receive a fair trial before jurors from the changed venue county.”). Georgia law requires that a trial court actually “use,” not just “consider,” alternative means to exclude prejudicial matters, such as jury sequestration, change of venue, postponement of the trial, searching voir dire, and clear and emphatic instructions to the jury, as alternatives to closure of the proceeding. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 579–80 (1982). Moreover, the court must consider reasonable alternatives sua sponte if none are raised or offered. Presley v. Georgia, 558 U.S. 209 (2010).
A closure order must fully articulate the alternatives to closure and the reasons why the alternatives would not protect the movant’s rights. In Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 580 (1996), the Supreme Court of Georgia made clear that the right of access to court proceedings cannot be abrogated based on a speculative showing: “assumptions and speculation can never justify the infringement on First Amendment rights, which the closure of criminal proceedings creates.” The court expressly acknowledged that “‘pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial.’” Id. at 581 (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976)); see also Florida Publ’g Co. v. Morgan, 253 Ga. 467, 471 (1984) (“[A]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.” (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980))).
Kansas trial judges who consider whether to close a criminal proceeding generally are guided by Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981). In Fossey, the Kansas Supreme Court ruled essentially that criminal proceedings shall not be closed except to prevent a clear and present danger to fairness and a prejudicial effect that cannot otherwise be avoided. Fossey, 630 P.2d at 1182 (citing The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).
The Mississippi Supreme Court has held that the “criminal process should be open to public scrutiny. Exceptions can be made, but only for good cause,” Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163, 1165 (Miss. 1987). For instance, the court has stated that the public may be excluded “to the extent necessary to avoid embarrassment or emotional disturbance to a witness which might result from that witness giving testimony in a particular case.” Lee v. State, 529 So. 2d 181 (Miss. 1988). Also, when a trial court determines that there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity, and where there is no less restrictive alternative to closure, “[p]ress access to the trial and pretrial processess may be qualified.” Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 942 (Miss. 1990).
The Mississippi Supreme Court established the requirements for closing a court file or proceeding in Gannett River States Pub. Co. v. Hand, 571 So.2d. 941, 943 (Miss. 1990). The court established that notice must be given to the media and the public at least 24 hours before a hearing on the closure. To provide adequate notice, a motion for closure must be docketed in the court clerk’s office. Id. at 945. At the hearing, the party seeking closure must: “advance an overriding interest that is likely to be prejudiced; the closure order must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure.” Id. The press also must be allowed to present its argument, if any, against closure. Id. A court that grants closure must explain the alternatives it considered and why they were rejected. Id.
A transcript of the closure hearing should be made public. Id. If a petition for extraordinary relief is filed, the petition should be accompanied by the transcript, the court's findings of fact and conclusions of law, and the evidence adduced at the closure hearing. Id.
“Although the United States Constitution does not explicitly state that the press or the public have a right to access criminal trials, the presumption of an open court is firmly rooted in American jurisprudence.” Stephens Media, LLC v. Eighth Judicial Dist. Court, 125 Nev. 849, 859, 221 P.3d 1240, 1247 (2009) (holding that the “public and the press have the right to seek limited intervention in a criminal case to advance or argue constitutional claims concerning access to court proceedings”).
Consistent with federal and State constitutional rights, U.S. Const. amend. VI; N.M. Const. art. II, § 14, New Mexico statutes require all courtroom proceedings to be open to the public unless otherwise provided by law. NMSA 1978, § 34-1-1 (1851) (“Except as provided in the Children's Code [NMSA 1978, § 32A-1-1] and in other laws making specific provisions for exclusion of the public, all courts of this state shall be held openly and publicly, and all persons whatsoever shall be freely admitted to the courts and permitted to remain so long as they shall observe good order and decorum.”).
The Committee Commentary for Rule 5-124 NMRA addresses its procedures:
“The prerequisites to a courtroom closure order . . . are taken from State v. Turrietta, 2013-NMSC-036, ¶¶ 17, 19, 308 P.3d 964, which provides that the court cannot order a full or partial closure of the courtroom unless the closure is warranted under the four-factor “overriding interest” standard set forth in Waller v. Georgia, 467 U.S. 39 (1984). Under Waller,
(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the district court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure.”
As in civil proceedings, the courts must consider reasonable alternatives to closure. Id. (“For example, if the alleged overriding interest is the potential for witness intimidation, reasonable alternatives to closure might include ‘screening observers, admonishing spectators of possible criminal sanctions, the wait-and-see method, or increased security in the courtroom.’”).
Oklahoma courts recognize and apply the precepts of Richmond Newspapers and the Press–Enterprise cases in criminal proceedings. See, e.g., Nichols v. Jackson, 2002 OK CR 65, 55 P.3d 1044 (citing Press Enterprise II for presumption of openness of criminal proceedings); Nichols v. Jackson, 2001 OK CR 35, 38 P.3d 228 (citing Press–Enterprise II for presumption of openness of criminal proceedings, and holding that closure of any aspect of the proceedings must be based on clearly articulated and specific findings that balance the rights of the accused and the public); Reeves v. State, 1991 OK CR 101, 818 P.2d 495 (citing Richmond Newspapers and Press–Enterprise I for importance of public trials, but holding exclusion of public during testimony of minor victim of molestation did not abridge defendant’s rights); Shipman v. State, 1982 OK CR 3, 639 P.2d 1248 (relying on Richmond Newspapers to hold that criminal defendant could not exclude public from trial to prevent alleged harassment of witnesses).
The public’s right of access to criminal proceedings is embodied in both the United States Constitution and the Pennsylvania Constitution. SeeU.S. Const. amend. I; Pa. Const. art. I., §11 (“All courts shall be open.”); Commonwealth v. Upshur, 924 A.2d 642, 647 n.5 (Pa. 2007) (“[T]his Court has recognized a presumption of openness stemming from Article I, Sections 9 and 11 of our State Constitution, which provide that an accused has the right to a ‘speedy, public trial’ and that ‘all courts shall be open.’”); Commonwealth v. Curley, --- A.3d ----, 2018 Pa. Super. LEXIS 599, at *8-9 (June 4, 2018) (“‘It is well settled that the First Amendment to the United States Constitution, and Article I, Sections 7 and 11 of the Pennsylvania Constitution secure a general right of public access to criminal proceedings, as well as to judicial records’” (quoting Commonwealth v. Selenski, 996 A.2d 494, 496-97 (Pa. Super. 2010)).
Unlike access to court records, there is no comprehensive rule or statute governing public access to court proceedings in Vermont. However, the Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.” State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception). The Vermont Supreme Court has recognized that criminal trials historically have been open to the public in their entirety, “resulting in a strong presumption in favor of openness.” State v. Favreau, 173 Vt. 636, 638, 800 A.2d 472, 474 (Vt. 2002); see also State v. Nutbrown-Covey, 2017 VT 26, ¶ 20, n.3, 204 Vt. 363, 373 (Vt. 2017) (“the public and the press have a protected First Amendment right of access to most stages of a criminal trial”). The Vermont Supreme Court has applied the two-part test developed by the United States Supreme Court for determining whether the First Amendment right of accessto criminal proceedings attaches to a particular proceeding. State v. LaBounty, 167 Vt. 25, 29, 702 A.2d 82, 85 (Vt. 1997) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)). Under this test, the qualified right attaches if, first, “the place and process have historically been open to the press and general public,” and second, “public access plays a significant positive role in the functioning of the particular process in question.” LaBounty, 167 Vt. at 29, 702 A.2d at 85.
See Wis. Stat. § 757.14:
The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.
See Wis. Const. art. I, § 7:
In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.