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 the Eleventh 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"); see also 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"); see also Simmons v. Conger, 86 F.3d 1080, 1086 (11th Cir. 1996); see also United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028 (11th Cir. 2005); see also Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1166-1167 (11th Cir. 2019).
When determining whether the public has a First Amendment right of access to a particular governmental proceeding, reviewing courts must inquire into two "complementary considerations": (1) "whether the place and process have historically been open to the press and general public" and (2) "whether public access plays a significant positive role in the functioning of the particular process in question." Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266 (11th Cir. 2014) (citing Press-Enterprise II, 478 U.S. at 8–9).
With few exceptions, criminal proceedings brought against adults are open to the public.
The Supreme Court consistently has 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 (Press-Enterprise I), 464 U.S. 501, 505 (1984) (constitutional presumption of openness to voir dire proceedings); Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986) (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) (“[A]ny closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.”).
Likewise, the First Circuit has held that under the First and Fourteenth Amendments, “the public and the press enjoy a constitutional right of access” to criminal proceedings, “most pretrial proceedings[,]” and “to documents and kindred materials submitted in connection with the prosecution and defense of criminal proceedings.” In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002).
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.
“Courts should operate in the open, except where closed hearings are essential to guarantee a fair trial or to protect the integrity of the judicial process.” Application of Storer Commc’ns, Inc., 828 F.2d 330, 333 (6th Cir. 1987). “Under the First Amendment, the public and the press enjoy a right of access to criminal trials.” Indianapolis Star v. United States, 692 F.3d 424,429 (6th Cir. 2012) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). This right of access “is grounded generally in a ‘purpose of assuring freedom of communication on matters relating to the functioning of government.’” Id. (citations omitted). “This right is not limited to the trial itself but can apply to other criminal proceedings and records.” Id. (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)). This right of access includes preliminary proceedings like “voir dire examinations of potential jurors.” In re Petitions of Memphis Publ’g Co., 887 F.2d 646, 648 (6th Cir. 1989).
“Motions for closure of criminal proceedings, both before and during the trial, must be posted promptly on the docket sheet, thus giving notice to the public. When such motions are posted, media organizations may move to intervene for the purpose of contesting closure of hearings and the sealing of documents.” Application of Storer Commc’ns, Inc., 828 F.2d at 333 (citing United States v. Criden, 675 F.2d 550, 555, 559 (3d Cir. 1982)). “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Application of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)).
In an unpublished opinion, the Sixth Circuit has upheld, as part of a civil right suit against the local sheriff, the removal of a spectator from the courtroom during a criminal trial for “disruptive” behavior. Leisure v. Karnes, 25 F.App’x 285, 286–87 (6th Cir. 2001) (unpublished). The Court explained that the right of access to criminal trials “is not without exception, as a judge has the overriding authority to maintain dignity in the courtroom and may order such persons removed who disrupt the proceedings.” Id. at 287 (citations omitted). The individual was escorted from the courtroom after the judge “informed [her] that she was welcome to stay in the courtroom if she would stop her distracting gestures and behavior, but [the individual] became argumentative, refused to listen to [the judge], and denied that she had done anything wrong.” Id.
“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.
Eighth Circuit case law regarding access to criminal proceedings is relatively scarce, but the Circuit has acknowledged “the [F]irst [A]mendment rights of the press and public to attend and observe” criminal trials. United States v. Thunder, 438 F.3d 866, 867 (8th Cir. 2006). Supreme Court cases have established that the press and general public have a “constitutional right of access to criminal trials,” even if such right is not specifically mentioned in the First Amendment. Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 603 (1982). The Eighth Circuit has also “noted that the public enjoys a qualified right of access to certain criminal proceedings,” including preliminary hearings, criminal trials, and voir dire. Flynt v. Lombardi, 885 F.3d 508, 513 (8th Cir. 2018) (citing Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015)).
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.
Access to criminal proceedings is primarily governed by United States Supreme Court rulings recognizing a First Amendment-based right of press and public access to judicial proceedings. See, e.g., Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”),
464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. The Alaska Court of Appeals discussed the constitutional right of access in Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991). Citing Press-Enterprise I, the court in Renkel held that an Alaska statute mandating closure of courtrooms to the public in sexual assault cases involving minor victims was unconstitutional, and that, absent particularized findings supporting closure, closure of a court to the general public during testimony of minor victims is reversible error. Id. at 1089, 1092. See alsoBright v. State, 875 P.2d 100, 105–110 (Alaska Ct. App 2004), discussed in detail the introductory section I.A above. The Supreme Court has underscored the need to create a reviewable record by strongly disapproving a trial court's going “off the record;” if an appellate court does not have a complete record of what took place in the trial court it makes it difficult, and sometimes impossible, for the appellate court to exercise to the fullest extent its power and duty to review the actions of the trial court. In re P.N., 533 P.2d 13, at 19, n. 13. (Alaska 1975); Smith v. State, Board of Dental Examiners, 1984 WL 908389 *3 (Alaska May 2, 1984).
Because the press and public generally have a constitutional right to attend court proceedings, including criminal cases, we don’t need to ask permission to do that. However, neither the federal nor state constitutions have thus far been construed to cover use of video or still cameras or audio recording devices, so these activities are governed by court rules. In Alaska, camera and audio coverage of court proceedings, as well as use of sketch artists, is covered by Alaska Administrative Rule 50. Rule 50 is addressed in more detail in section XI.B of this Open Courts Compendium. The federal local rule generally prohibiting use of cameras and recording devices in Alaska’s federal court facilities, D. Alaska Local R. 83.3, is set out in section XI.B, below.
Federal Local Criminal Rule 56.1, applicable to the U.S. District Court for Alaska provides, “Unless otherwise provided by law, all criminal proceedings, including related documents and exhibits, and any record made thereof, not otherwise required to remain confidential, are accessible to the public.”
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).
The standard for closure announced in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), applies in criminal proceedings. See People v. Lucas, 60 Cal. 4th 153, 261, 333 P.3d 587, 177 Cal. Rptr. 3d 378 (2014) (citing NBC Subsidiary standard in a criminal case); People v. Martinez, 226 Cal. App. 4th 759, 766, 172 Cal. Rptr. 3d 320 (2014) (noting that NBC Subsidiary analyzed “both civil and criminal” access cases). Thus, to support closure or sealing in a criminal case, a trial court must find “(i) that there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” NBC Subsidiary, 20 Cal. 4th at 1218; see also id. at 1181. This standard applies to all “substantive” proceedings, regardless whether they are held in court or in chambers. Id. at 1215-1216.
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).
The Colorado Supreme Court recently noted “the public’s and the press’s qualified First Amendment rights to attend a criminal trial.” People v. Jones, 2020 CO 45, ¶ 18 (in the course of conducting a Sixth Amendment closure analysis, observing that “while the total exclusion of the press and the public generally amounts to a closure, such closures may be permissible under certain circumstances,” through “these circumstances ‘will be rare’ and ‘the balance of interests must be struck with special care.’”).
In dicta, the Colorado Supreme Court has 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).
State criminal proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure. Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.
In federal criminal proceedings, the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.” D. Conn. Local Crim. R. 57(b)(1)(A).
The D.C. Circuit has followed Richmond Newspapers, granting access to criminal proceedings under the First Amendment where applicable, before considering common law access rights. In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n.3 (D.D.C. 2008) (applying First Amendment right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001). "The First Amendment guarantees the press and the public a general right of access to court proceedings and court documents unless there are compelling reasons demonstrating why it cannot be observed.” Wash. Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991). The presumption of access to criminal judicial proceedings can be overridden only if “(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Wash. Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991).
In criminal cases in the Superior Court, Criminal Rule 56(b) states that “[a]ll pleas, hearings, trials and sentences shall be conducted in open court and so far as convenient in a regular courtroom unless otherwise provided by statute or these rules.” Similarly, in the Family Court, Criminal Rule 62(c) states that “[u]nless otherwise required by statute or rule, all records of proceedings before the Court shall be public. If sufficient reasons exist, the Court in its discretion may close records of proceedings.”
District of Columbia
D.C. courts recognize a presumptive right to access criminal proceedings. The D.C. Court of Appeals has held that “the general nature of our form of government requires the highest degree of public exposure to trial court proceedings.” United States v. Burka, 289 A.2d 376 (D.C. 1972); see also D.C. L. Cr. R. 17.2(a) (“Unless otherwise provided by law or by this Rule, all criminal proceedings . . . shall be held in open court and shall be available for attendance and observation by the public.”).
“[T]he public and press have a fundamental right of access to all judicial proceedings.” State ex rel. Miami Herald Publ’g v. McIntosh, 340 So. 2d 904, 908 (Fla. 1976). However, according to the Florida courts, this is not necessarily a First Amendment right of access, but instead a common law right. Compare Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988) (recognizing a common law right of access in both criminal and civil proceedings) with Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983) (explaining that there is no First Amendment right to attend pretrial suppression hearings or other pretrial hearings).
Where a criminal defendant seeks to close records or proceedings in his or her case, the defendant must overcome the presumption of openness and satisfy the Lewis test by showing: (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.
Florida Rule of Judicial Administration 2.450 governs courtroom use of electronic devices by the news media such as television and photographic cameras. Rule 2.450 makes Florida state courts presumptively open to electronic media. See also In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979). However, courts have the authority to prohibit filming or photographing of particular trial participants, such as witnesses or jurors, upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from traditional media coverage. In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979); State v. Green, 395 So. 2d 532 (Fla. 1981). But cf. Sunbeam Television Corp. v. State, 723 So. 2d 275 (Fla. Dist Ct. App. 1998) (finding on rehearing en banc that an interest in insulating jurors from undue influence in a high-profile case in which juror names and addresses were sealed could support a prohibition against videotaping jurors’ faces). See also Morris Publ’g Co., LLC v. State, No. 1D10-226, 2010 WL 363318 (Fla. 1st DCA Jan. 20, 2010) (noting that while Rule 2.450 does not apply to the regulation of laptop computers in the courtroom, trial judge has inherent authority to prohibit any device causing a distraction, and further remanding to permit such use of a laptop by news media unless trial judge finds factual basis that such use would cause disruption).
With respect to electronic coverage, courts also retain the authority to “(i) control the conduct of proceedings before the court; (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause.” Fla. R. Jud. Admin. 2.450(a).
“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))).
The Hawaii Supreme Court “has recognized a tradition of public access, declaring it ‘firmly embedded in [its] system of jurisprudence’ as a ‘general policy of open trials.’” Oahu Publ’ns, Inc. v. Ahn, 133 Hawai’i 482, 494, 331 P.3d 460, 474 (2014) (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978). According to the Hawaii Supreme Court, open courts are a fundamental component of the Hawai’i system of law: “Courts are established for the judicial administration of justice. They are open to the public . . . . The fact that they are open serves as a safeguard of the integrity of our courts.” Oahu Publ’ns Inc. v. Ahn, 133 Haw. 482, 495, 331 P.3d 460, 473 (2014), as corrected (Aug. 5, 2014) (citing State v. Hashimoto, 47 Haw. 185, 200, 389 P.2d 146, 155 (1963) (alterations in original)). Furthermore, “[t]he corrective influence of public attendance at trials for crime [i]s ... important to the liberty of the people.” Oahu Publ’ns Inc. v. Ahn, 133 Haw. 482, 495, 331 P.3d 460, 473 (2014), as corrected (Aug. 5, 2014) (citing Territory v. Scharsch, 25 Haw. 429, 436 (1920)); see also id. (“The words ‘public trial’ are self-explanatory . . . a public trial is a trial at which the public is free to attend.”).
The public’s qualified right of access to particular criminal proceedings is based upon the “two complementary considerations” of “logic and experience.” Oahu Publ’ns Inc. v. Ahn, 133 Haw. 482, 494, 331 P.3d 460, 472 (2014), as corrected (Aug. 5, 2014) (citing Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty., 478 U.S. 1, 8 (1986)) (some citations omitted). “Under the ‘experience’ consideration, a right of the public to attend trials relies on ‘whether the place and process have historically been open to the press and general public’ because a ‘tradition of accessibility implies the favorable judgment of experience . . . .’” Id. (citing Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty., 478 U.S. 1, 8 (1986)) (some citations omitted). “Under the ‘logic’ consideration, the right of the public to attend a criminal proceeding relies on whether ‘public access plays a significant positive role in the functioning of the particular process in question.’” Id. (citing Press–Enter. Co. v. Superior Court of Cal. for Riverside Cty., 478 U.S. 1, 8 (1986)). If a criminal proceeding fulfills the logic and experience considerations, a qualified First Amendment right of access attaches to that proceeding. Id.
“Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.” Idaho Const. art. I, § 18. “The public has a right to examine and copy the judicial department’s declarations of law and public policy and to examine and copy the records of all proceedings open to the public.” I.C.A.R. 32(a).
Illinois courts also have recognized the constitutional presumptive right of access in criminal cases: “Judicial proceedings in the United States are open to the public – in criminal cases by constitutional command.” A.P. v. M.E.E., 354 Ill. App. 3d 989, 993, 821 N.E.2d 1238, 1245, 290 Ill. Dec. 664, 671 (Ill. App. Ct. 1st Dist. 2004). Unless a judge makes specific findings to the contrary, neither the press nor the public may be excluded from any part of a criminal proceeding. See also People v. March, 95 Ill. App. 3d 46, 419 N.E.2d 1212, 50 Ill. Dec. 763 (Ill. App. Ct. 4th Dist. 1981) (new trial was ordered for murder defendant whose trial was closed in part, over his objections, to the press but not to the public), abandoned on unrelated grounds in People v. Bolden, 132 Ill.App.3d 1047, 1058 (Ill. 4th Dist. 1985), overruled on other grounds by People v. Taylor, 181 Ill. 3d 538, 536 N.E.2d 1312 (1989). In March, one of the concurring justices went further: “Although this court has failed to reach a consensus on this concurring judges wrote, “I would hold under the authority of the Richmond Newspapers case that absent an overriding interest articulated in express findings, the trial of a criminal case must be open to the public. This trial was not open and no overriding interest is suggested nor articulated, thus the case must be retried.” Id. at 51, 419 N.E.2d at 1216, 50 Ill. Dec. at 767 (Craven, J., concurring specially); but see People v. Kelly, 397 Ill. App. 3d 232, 243, 921 N.E.2d 333, 345, 336 Ill. Dec. 719, 731 (Ill. App. Ct. 1st Dist. 2009)(affirming closure of limited pretrial matters).
“There is venerable tradition and practice in Indiana courts engaged in the administration of the criminal law which requires proceedings to be open to attendance by the general public, the press and other news media, and friends of the accused. Open judicial proceedings are the norm and are favored.” State ex rel. Post-Tribune Pub. Co. v. Porter Superior Ct., 412 N.E.2d 748, 750 (Ind. 1980). The Indiana Constitution protects the right of the accused to a public trial, Art. 1, § 3, and Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.”
However, the right to access criminal proceedings is not unlimited. The First Amendment allows “[c]omplete or partial exclusion of the public may be justified if a court finds ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997) (citing Waller v. Georgia, 467 U.S. 39, 45 (1984)). Additionally, Indiana courts have statutory authority to exclude the public from access to criminal proceedings if “it first affords the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” Ind. Code § 5-14-2-3.
For a thorough discussion of the constitutional right to a public criminal trial and Indiana statutes regarding open criminal proceedings, see Williams v. State, 690 N.E.2d 162, 167–68 (Ind. 1997) (citations and footnote omitted):
“In addition to the Sixth Amendment, Section 13 of the Indiana Constitution provides that ‘In all prosecutions, the accused shall have the right to a public trial....’ IND. CONST. art. I, § 13.
. . .
The right to a public trial has long been recognized as a fundamental right of the accused. It helps ensure a fair trial because “the presence of interested spectators may keep [the accused’s] triers keenly alive to a sense of their responsibility and to the importance of their functions....” Waller, 467 U.S. at 46, 104 S.Ct. at 2215 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2906, 61 L.Ed.2d 608 (1979) (in turn quoting Oliver, 333 U.S. at 270 n. 25, 68 S.Ct. at 506 n. 25)). It protects the accused by allowing the public to assess the fairness of the proceedings. In addition, it encourages witnesses to come forward, and discourages perjury. In addition to the rights of the defendant, the public trial implicates the First Amendment right of the press and public to attend a criminal trial, Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), or other proceeding. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (extending First Amendment right of access to voir dire). However, neither right is absolute. Complete or partial exclusion of the public may be justified if a court finds “that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Waller, 467 U.S. at 45, 104 S.Ct. at 2215 (quoting Press-Enterprise, 464 U.S. at 510, 104 S.Ct. at 824). See also Hackett, 266 Ind. at 110, 360 N.E.2d at 1004 (exclusions may be justified by a legitimate purpose that furthers the integrity of the judicial process, so long as there is a sufficient record supporting the court’s exercise of discretion). Examples of valid exclusions include forbidding the televising of a public trial, Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) and protecting a witness fearful of retaliation by those attending the trial, Hackett, 266 Ind. at 110, 360 N.E.2d at 1004; Kendrick, 661 N.E.2d at 1242.
In addition to his constitutional right, Williams relies on Indiana’s statutory protection of public access to criminal proceedings. The Indiana Code provides that ‘Criminal proceedings are presumptively open to attendance by the general public.’ IND.CODE § 5-14-2-2 (1993), and defines “open to attendance” as meaning ‘that individuals have the right freely to attend and observe criminal proceedings.’ Id. at § 5-14-2-1. The general public may be excluded from a criminal proceeding, however, if the court “first affords the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” Id. at § 5-14-2-3. In addition, as Williams notes, the Code further provides:
This chapter does not affect the inherent power of a court to make limited exclusions of witnesses, to relieve overcrowding, to protect the order and decorum of the courtroom, or to exclude those individuals whose presence constitutes a direct threat to the safety of the spectators, parties, or witnesses.
Id. at § 5-14-2-7.”
Iowa has acknowledged a First Amendment qualified right of access of the press and the general public to criminal trials. See, e.g., State v. Knox, 464 N.W.2d 445, 447 (Iowa 1990) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (plurality opinion); Press-Enter. Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 14 (1986)). The qualified right of access extends to pretrial proceedings and may extend to post-trial proceedings as well. See Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142, 147 (Iowa 1988) (pretrial proceedings); see also Knox, 464 N.W.2d at 447 (the “experience and logic” test will be applied to determine whether certain post-trial proceedings are subject to the right of access). However, the right of access in Iowa is a qualified right, and ‘“[i]t has generally been viewed as a right subject to the inherent power of the court to limit attendance as the conditions and circumstances reasonably require for the preservation of . . . order and decorum in the courtroom, and to reasonably protect the rights of parties and witnesses.”’ Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 924 (Iowa 1980) (quoting State v. Lawrence, 167 N.W.2d 912, 914 (Iowa 1969)).
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)).
There is a presumption that both criminal and civil court proceedings and records are open and accessible to the public and press, and this presumption generally applies to “everything filed with the courts” in civil or criminal cases. Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).
The Louisiana Constitution also provides a right of access to judicial proceedings in criminal cases. Article 1, § 22 states: “All courts shall be open.” See Huval v. State through Dep’t of Pub. Safety & Corr., 222 So.3d 665, 671 (La. 2017). Article 1, § 16 states: “Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial.” (Emphasis added.) The Louisiana Supreme Court has commented on the “strong societal interest in public trials.” State v. Birdsong, 422 So.2d 1135 (La. 1982).
The Maine Supreme Court has recognized that under the First Amendment “the public, sometimes represented by the media, has its own right to observe criminal trials.” State v. Frisbee, 2016 ME 83, ¶ 16, 140 A.3d 1230.
The primary reasons for the right of the public and the press to observe criminal trials are twofold: first, the watchful eye of the public is understood to ensure a fair trial for the defendant; and second, the public’s right to observe criminal trials is expected to enhance public confidence in the courts and criminal justice system.
Id. ¶ 17.
“The rights of the public and the defendant to an open trial are not absolute, however, and they may be overridden by other rights or interests.” Id. ¶ 21.
[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.
Id. (quoting Waller v. Georgia, 467 U.S. 39, 45 (1984)).
“Because of the presumption that criminal proceedings are to be open to the public, the decision to fully close a courtroom during criminal proceedings must involve an ‘overriding interest,’ and the court must narrowly tailor the closure, both temporally and specifically.” State v. Frisbee, 2016 ME 83, ¶ 22 (emphasis added). “Thus, before a trial court may fully close a courtroom during a criminal proceeding,” id., the court must assure the following:
(1) the party seeking to close the hearing has advanced an overriding interest that is likely to be prejudiced,
(2) the closure is no broader than necessary to protect that interest,
(3) reasonable alternatives to closing the proceeding have been considered, and
(4) adequate findings have been made to support the closure.
Id.; see also Roberts v. State, 2014 ME 125, ¶ 24, 103 A. 3d 1031 (abrogated on other grounds).
“When a party is seeking a partial closure of the courtroom only, or when the trial court determines that a limited restriction is necessary, we will apply a less stringent standard ‘provided the essential purposes of the ‘public trial’ guarantee are served and the constitutional rights of defendants are adequately protected.’” Id. ¶ 23 (emphasis added).
The Maryland courts have recognized that under the First Amendment and its state constitutional analogue, Article 40 of the Maryland Declaration of Rights, the public has a right of access to criminal pretrial and trial proceedings. Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 430–31 (Md. 1983); see Patuxent Publ’g Corp. v. State, 429 A.2d 554, 556 (Md. Ct. Spec. App. 1981) (First Amendment right applied in the context of pretrial gag order hearing); Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (First Amendment right of access applies to redacted presentence report entered into evidence in criminal trial; but First Amendment right might be overcome by compelling state interest in confidentiality of such reports).
Massachusetts, following Supreme Court precedent, recognizes a general right of public access to criminal trials. See, e.g., Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 603 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)).
When considering whether a constitutional presumption of access applies to particular criminal proceedings, Massachusetts courts apply the Supreme Court’s “logic and experience test” described above.
The Minnesota Supreme Court has recognized a First Amendment right of press and public access to criminal court proceedings. Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 554–55 (Minn. 1983) (acknowledging that based on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the press and the public have access to criminal trials); see also Austin Daily Herald v. Mork, 507 N.W.2d 854, 856 (Minn. Ct. App. 1993) (“There is a constitutional presumption of access to criminal trials.”). This First Amendment right of access also extends to criminal pretrial proceedings. Kammeyer, 341 N.W.2d at 556. In addition, Minnesota Rules of Criminal Procedure 25.01 and 26.03 state a general right of public access to pretrial and trial proceedings and provide specific procedures for limiting that access.
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.
Implicit in the right-to-know provision of the Montana Constitution is the citizens’ right to receive information about criminal proceedings. This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to an impartial jury. State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).
“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.’”).
The right of the public to access criminal proceedings is “implicit in the guarantees of the First Amendment.” Richmond Newspapers v. Virginia, 448 U.S. 555, 580 (1980).The presumed “public character of trial at which guilt or innocence was decided” dates back to English common-law traditions, People v. Colon, 71 N.Y.2d 410, 521 N.E.2d 1075 (1988), and has since been enshrined not only in the U.S. Constitution’s First Amendment but also explicitly in the Sixth Amendment. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”) (emphasis added); Waller v. Georgia, 467 U.S. 39, 47 (1984).
In New York, the defendant’s right to a public trial is also protected by statute. N.Y. Civ. Rights Law § 12 (“In all criminal prosecutions, the accused has a right to a speedy and public trial . . . .”). New York courts have understood the right of access to extend beyond “the criminal trial itself . . . to other phases of a criminal action.” Associated Press v. Bell, 70 N.Y.2d 32, 510 N.E.2d 313, 316 (1987) (granting press access to suppression hearings); see also People v. Burton, 189 A.D.2d 532, 535 (3d Dep’t 1993) (granting press access to motion papers).
The right is qualified, however. When a defendant feels that his or her “right to a fair trial is threatened, the trial court must determine whether the situation . . . override[s] the qualified First Amendment right of access.” Bell, 70 N.Y.2d at 38–39 (internal quotation marks omitted). Restrictions must be narrowly tailored, and the test is whether “(1) there is a substantial probability that defendant’s right to a fair trial will be prejudiced by publicity that sealing would prevent, and (2) reasonable less restrictive alternatives to sealing cannot adequately protect defendant's fair trial rights.” Burton, 189 A.D.2d at 535. Bare conclusory assertions are insufficient to close the proceedings. See, e.g., People v. Arthur, 178 Misc. 2d 419, 422, 682 N.Y.S.2d 811 (Sup. Ct. N.Y. Cty. 1998); People v. DeBeer, 3 Misc. 3d 515, 517, 774 N.Y.S.2d 314 (Ontario Cty. Ct. 2004).
North Carolina courts appear to follow U.S. Supreme Court precedent on the public's right of access to judicial proceedings in criminal cases. See, e.g., DTH Publ'g Corp. v. University of North Carolina at Chapel Hill, 496 S.E.2d 8, 16 (1998) (invoking the "tests of experience and logic" applied by the U.S. Supreme Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-13 (1986) (Press-Enterprise II)); see also In re Nowell, 293 N.C. 235, 250 (1077) (noting “the basic principle that the disposition of any criminal case should be made in open court . . . The gravamen of this matter is that the State was not allowed its day in court and that the public was excluded. . . . [T]he district attorney was entitled to be heard and the public was entitled to hear the judgment rendered."); In re Edens, 290 N.C. 299, 306 (1976) (“The trial and disposition of criminal cases is the public's business and ought to be conducted in public in open court.”).
While the state recognizes a presumptive right of access, the right is not absolute. See State v. Lemons, 348 N.C. 335, 349-50 (1998), vac'd on other grounds by Lemons v. North Carolina, 527 U.S. 1018 (1999). Instead, it "is subject to reasonable limitations [by the trial court] imposed in the interest of the fair administration of justice or for other compelling public purposes." Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476 (1999). Under the North Carolina Criminal Procedure Act, for example, "[t]he presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present." N.C.G.S. 15A-1034(a). See also State v. Burney, 502 N.C. 529, 533-38 (1981) (trial court did not err when it restricted courtroom access to members of certain identifiable groups, for only a short portion of the overall proceeding, during the testimony of a seven-year-old rape victim).
The North Dakota Supreme Court has consistently expressed a policy of openness in all judicial proceedings. Crucially, the right to a public trial is for the benefit of the defendant, not the public. Quoting the United States Supreme Court, in Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D. 1983), the North Dakota Supreme Court noted, “The press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Additionally, in State v. Rueb, 249 N.W.2d 506 (N.D. 1976), the court noted, “Our Constitution provides for public trials and the public’s right to know has become engrafted on our system of government by appropriate laws.”
This policy of openness is subject to the provisions of N.D.C.C. § 29-07-14, through which a defendant may request that a magistrate holding a preliminary hearing exclude every person except the magistrate’s clerk, the prosecutor, the prosecutor’s counsel, the attorney general of the state, the state’s attorney of the county, the defendant, the defendant’s counsel, such other person as the defendant may designate, and the officer having the defendant in custody. Such closure will only be justified if the magistrate determines that evidence inadmissible at the trial on the issue of guilt or innocence will be admissible at the preliminary examination, which is designed to determine only probable cause and, as a result, there is a substantial likelihood that such evidence will interfere with the defendant's right to a fair trial and impartial jury. As the North Dakota Supreme Court has stated, “We cannot ignore the fact that pretrial publicity of inadmissible evidence can defeat the defendant’s constitutional right to a fair and public trial.”
The Ohio Supreme Court generally recognizes a First Amendment right for the press and public to attend court proceedings. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986). “Freedom of the press includes the right to ‘gather, write and publish the news’ including events occurring in open court.” Id. (quoting State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127, 134 (Ohio 1976)). The Ohio Supreme Court has adopted the Press-Enterprise II “experience and logic” test, which “accurately defines the limits of constitutionally protected access to all court proceedings.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). In applying Press-Enterprise II, the Ohio Supreme Court held that “the public’s qualified right of access attaches to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” Id.
In the context of criminal trials, the accused’s constitutional right to a public trial also supports the right of public access to the trial, including pretrial proceedings. See In re T.R., 556 N.E.2d at 446; Unger, 504 N.E.2d at 40. “The underlying premise of a public trial is that the public is a party to all criminal proceedings. Criminal cases are prosecuted in the name of the people because crimes are public wrongs affecting all members of society.” Unger, 504 N.E.2d at 39.
The Ohio Supreme Court has consistently held that the media and public have a qualified right of access to criminal proceedings. See, e.g., State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127 (Ohio 1976) (pretrial proceedings in kidnapping, extortion and murder case); State ex rel. Beacon Journal Publ’g Co. v. Kainrad, 348 N.E.2d 695 (Ohio 1976) (trial testimony); Unger, 504 N.E.2d 37 (pretrial proceedings); see also State ex rel. Cincinnati Enquirer v. Bronson, 975 N.E.2d 551 (Ohio Ct. App. 2010) (jury view of crime scene). However, a trial judge can restrict ingress and egress to “minimize distractions during jury instructions, closing arguments, and witness testimony.” State ex rel. Livingston v. Bates, 111 N.E.3d 1287, 1293 (Ohio Ct. App. 2018).
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).
In Oregon, access rights are guaranteed by Article I, section 10 of the Oregon Constitution, which provides that “[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay . . . .” This provision has been interpreted not to provide an individual, waivable right, but instead to prescribe the functions of government. See Oregonian Publ’g v. O’Leary, 303 Or. 297, 301-02, 736 P.2d 173 (1987). The protections of Article I, section 10 are absolute. State v. Jackson, 178 Or. App. 233, 236-37, 36 P.3d 500 (2001).
Article I, section 11 of the Oregon Constitution provides the accused a right to a public trial. This right can be overcome by a showing of substantial need presented by the state, and this right may also be waived by the accused. See generally State v. Jackson, 178 Or. App. 233, 236-37, 36 P.3d 500 (2001). However, the intersections of the absolute protections provided by Article I, section 10, and the protections that may be overcome or waived, provided by section 11, are not precisely delineated. Id. at 237. (“There exists some question as to whether the protections of these two provisions are coextensive in criminal proceedings. Also, case law does not make it entirely clear whether the ‘absolute’ nature of the Article I, section 10, public right can, in fact, mandate that a criminal proceeding be open to the public in circumstances where an individual defendant's Article I, section 11 right might otherwise be circumscribed after a showing of substantial need by the state.”).
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)).
“That the press and the public have a First Amendment right of access to criminal trials is beyond dispute.” Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1135 (R.I. 1998) (citing Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 580 (1980)). “This right is implied in the First Amendment’s ‘core purpose’ of assuring free and open public discussion[.]” Providence Journal Co. v. Superior Court, 593 A.2d 446, 448 (R.I. 1991) (citing United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985)). In addition, there is “a general right to inspect and copy public records and documents, including judicial records and documents” based on the common law. Rodgers, 711 A.2d at 1135 (citing Nixon v. Warner Communications Inc., 435 U.S. 589, 597 (1978)).
The constitutional right for the press and public to attend a criminal trial, when read in light of South Carolina’s open courts provision, provides a clear basis for finding an independent right of the public and press to attend criminal proceedings. However there can be limits on access when balanced against a defendant’s right to a fair trial. Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86 (S.C. 2006).
Although this rule applies to electronic and photographic coverage, some judges apply it to print journalists as well.
“Justification for closing a criminal trial must be ‘weighty,’ supported by a compelling interest, and ‘narrowly tailored.’” Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 11, 804 N.W.2d 388, 392 (quoting Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982)).
Note that the South Dakota Constitution, art. VI, § 7, preserves a defendant’s right to a “public” trial.
The Court of Criminal Appeals has recognized that the public and media have a right to attend criminal court proceedings under the Texas Constitution and Texas law. See Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933–34 (Tex. Crim. App. 1982) (en banc) (finding that courts are “not authorized effectively to close out the public and media from the proceeding[s] that our State law commands shall be open”). The Texas Constitution provides that “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.” Tex. Const. art. I, § 8. Further, the Texas Constitution, similar to the federal Constitution, protects a defendant’s right to a “speedy public trial.” Id. art. I, § 10 (emphasis added). Accordingly, Article 1.24 of the Texas Code of Criminal Procedure, which requires proceedings and trials in all courts to be public, manifests “a lasting expression of the legislative will . . . that a right of access to ‘proceedings and trials in all courts’ in the public in general and the press in particular prevails.” Shaver, 630 S.W.2d at 932; see also Tex. Code Crim. Proc. Ann. art. 1.24 (“The proceedings and trials in all courts shall be public”).
There are some limitations on the public’s right of access to criminal proceedings. First, public access is generally not permitted in proceedings where access would not be appropriate, such as jury deliberations, grand jury proceedings, and in camera reviews. See Roman, 861 S.W.2d at 267 n.1. Second, the right of access is circumscribed by the media’s responsibility for any “abuse of the privilege.” See Shaver, 630 S.W.2d at 933; Tex. Const. art. I, § 8.
The Utah Supreme Court has held that the public and press have a right of access to criminal proceedings under the First Amendment, the Utah Constitution, and common law. See State v. Archuleta, 857 P.2d 234 (Utah 1993); Kearns-Tribune Corp. v. Lewis,685 P.2d 515, 521 (Utah 1984); Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987); see also Soc’y of Prof’l Journalists v. Briggs, 675 F. Supp. 1308, 1310 (D. Utah 1987) (holding “there is a constitutional right of access to public documents.”).
The Utah Supreme Court has held that the rationale for public access to criminal proceedings includes “promot[ing] an informed discussion of government affairs, including those conducted in the courts,” and “ensur[ing] the fairness of the criminal trial.” Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 518 (Utah 1984).
To close any criminal proceeding, five steps are required:
(i) a closure hearing must be held, and that hearing must be open to the greatest extent possible; (ii) if allegedly prejudicial information must be disclosed during the hearing on the merits, the court may close that hearing only after first attempting unsuccessfully to procure a voluntary nondisclosure agreement among the parties; (iii) the court may close only that portion of the hearing on the merits as is necessary to protect any countervailing interests, such as the accused’s fair trial right; (iv) if closure is deemed necessary, the transcript of any closed proceeding should be released as soon as it is possible to do so without prejudice to the interests that justified closure; (v) the order of closure resulting from the closure hearing must be supported by written findings and conclusions.
Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987).
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.
The public’s qualified right of access to criminal proceedings should not be confused with acriminal defendant’s right to a public trial under the Sixth Amendment and under Article I, Section 8 of the Virginia Constitution. The right to a public trial is personal to the criminal defendant and cannot be enforced by the public. The public’s qualified right of access arises from interests separate and above that of a criminal defendant, and is independent of the defendant’s right to a public trial. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 584–85, 281 S.E.2d 915, 920 (1981).
The constitutional right for the press and public to attend a criminal trial, when read in light of West Virginia’s open courts provision, provides a clear basis for finding an independent right of the public and press to attend criminal proceedings. However, there can be limits on access when balanced against a defendant’s right to a fair trial. State v. Bowling, 753 S.E.2d 27, 232 W.Va. 529 (2013), cert. denied, 572 U.S. 1039.
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.