A. In general
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).
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.