B. Pretrial proceedings
The First Amendment guarantees the right of the press and the public to attend “certain preliminary proceedings in criminal cases.” United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998). The right extends to those “pre-trial proceedings in criminal cases which historically have been, and logically should be, open to the public.” United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“McVeigh II”).
In McVeigh II, the Tenth Circuit acknowledged without deciding that the constitutional right of access likely extends to suppression hearings and accompanying motions under the Supreme Court’s Press-Enterprise II analysis. Id. at 813.
The Eleventh Circuit has recognized that some pretrial proceedings enjoy First Amendment protection. United States v. Ochoa-Vasquez, 428 F.3d 1015, (11th Cir. 2005) (citing Press-Enterprise I, 464 U.S. at 501 (stating that the right extends, not only to the criminal trial itself, but also to other integral parts of the trial process such as voir dire proceedings and preliminary hearings.).
The Supreme Court recognized the right of access to preliminary hearings in criminal cases in Press-Enterprise II). 478 U.S. at 13 (holding the right of public access attaches to preliminary hearings based on these considerations); see also El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (rule requiring probable cause hearings to be closed is irreconcilable with Press-Enterprise II); Waller v. Georgia, 467 U.S. 39, 47 (1984) ("[U]nder the Sixth Amendment, any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.").
A more definitive rule was issued by the Supreme Court in Press-Enterprise II, which concerned a motion by members of news media to gain access to transcripts of preliminary hearing in criminal prosecution. 478 U.S. at 13. The Court reviewed a determination of the Supreme Court of California that had determined that the right of access to criminal proceedings that was recognized in Press-Enterprise I extended only to criminal trials and therefore that there was no general right of access to preliminary hearings. Id. The U.S. Supreme Court reversed, saying, the qualified First Amendment right of access attached to preliminary hearings and that “proceedings cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. at 13-14.
More recently in Fugua v. Pridgen, the United States District Court of Georgia, Middle District recognized that the First Amendment right of access also attaches "to various pre-trial proceedings, including preliminary hearings, guilty plea hearings, motions to suppress and voir dire." No.: 1:12-CV-93(WLS), 2013 WL 12212365, *8 (M.D. Ga 2013).
The First Amendment right of access to criminal trials encompasses “most pretrial proceedings.” In re Providence Journal Co., Inc., 293 F.3d 1, 10 (1st Cir. 2002). “The courts of appeals have recognized a right of access to various pre-trial proceedings and the documents filed in regard to them, including, for example, suppression, due process, entrapment, and plea hearings.” United States v. Kravetz, 706 F.3d 47, 55, n.6 (1st Cir. 2013).
The First Circuit applied Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986) to hold unconstitutional a Puerto Rico rule closing preliminary hearings in criminal cases. Rivera Puig v. Garcia Rosario, 785 F. Supp. 278, 324–25 (1st Cir. 1992). Likewise, the First Amendment protects the public’s right to attend bail hearings because “the bail decision is one of major importance to the administration of justice, and openness will help to assure the public that the decision is properly reached.” In re Globe Newspaper, 729 F.2d at 52 (finding, however, that the accused’s right to a fair trial and privacy outweighed the public’s right of access).
When a court “considers whether to close a pretrial proceeding that would ordinarily be open to the public, it must meet three procedural requirements”: (1) allow members of the press and the public present at the time the closure motion is made the opportunity to be heard; (2) weigh the competing interests involved and consider reasonable alternatives to closure, stating on the record its reasons for rejecting these alternatives; (3) if it determines closure is necessary, it must draw the closure order as narrowly as possible in order to minimize the intrusion on the public’s First Amendment right to access. In re Globe Newspaper Co., 729 F.2d 47, 56 (1st Cir. 1984).
As to pre-trial proceedings, the Second Circuit has held that they merit a degree of First Amendment protection. See United States v. Klepfer, 734 F.2d 93 (2d Cir. 1984). In Klepfer, the court reviewed an order closing a courtroom during a pretrial hearing on a motion to suppress and ruled that the lower court had not sufficiently articulated a basis for its serious concern over public dissemination risks and for its preference for closure over alternative remedies. See also Application of Herald Co., 734 F.2d 93, 99 (2d Cir. 1984) ("We therefore agree with the Third and Ninth Circuits that the First Amendment extends some degree of public access to a pretrial suppression hearing.").
A more definitive rule was issued by the Supreme Court in Press-Enterprise II, 478 U.S. at 1, which concerned a motion by members of news media to gain access to transcripts of preliminary hearing in criminal prosecution. The court reviewed a determination of the Supreme Court of California that had determined that the right of access to criminal proceedings recognized in Press–Enterprise I extended only to criminal trials and therefore that there was no general right of access to preliminary hearings. The U.S. Supreme Court reversed, stating, " “the qualified First Amendment right of access to criminal proceedings applies to preliminary proceedings as they are conducted in California ...the proceedings cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 13-14.
The public’s First Amendment right of access to criminal proceedings extends to preliminary hearings held to determine whether there is probable cause to go to trial, plea hearings, sentencing hearings, suppression hearings and bail hearings. See In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986) (citations omitted).
The public’s First Amendment right of access to criminal proceedings extends to motions to transfer venue. See In re Charlotte Observer, 882 F.2d. 850 (4th Cir. 1989).
The public has no right of access to proceedings and records relating to the issuance of a search warrant before the warrant is executed, including an order sealing such proceedings and records. After execution, the public has a common law, but not a First Amendment, right of access to affidavits in support of search warrants, which right may be overcome by law enforcement’s interest in protecting ongoing investigations. See Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989); Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424 (4th Cir. 2005); Washington Post v. Hughes, 923 F2d 324 (4th Cir. 1991).
The Fifth Circuit has noted that the presumption of openness and the right to a public trial are not limited to issues that arise after a jury is sworn or to times when the jury is present. Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir. 1984). The presumption applies at least to those pretrial hearings and other proceedings that are an integral part of the trial, such as jury selection and motions to suppress evidence. Id. Openness is vital to the criminal justice system because it encourages witnesses to come forward, discourages perjury, insures that the judge and prosecutor act responsibly, and lends credibility by allowing the public to see that an accused is dealt with fairly. These objectives are frustrated if pre-trial hearings are closed. United States v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986). A pre-trial hearing can thus generally be closed to the public only if it satisfies the First Amendment tests set out in Press-Enterprise: i.e., that there is an overriding interest that is likely to be prejudiced if the proceeding is not closed and that the closure is no broader than necessary to protect the interest, and that reasonable alternatives to closure have been considered and found wanting. United States v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987).
Limitations on public attendance may be imposed so long as they are no more exclusive than necessary to protect a state interest that outweighs the defendant’s interest in public scrutiny of the proceedings. Rovinsky, 722 F.2d at 200. The right to a public trial does not turn on whether a hearing is examining an issue that is factual or doctrinal, substantive or procedural, but rather on the relationship of the issue to the merits of the underlying charge, the outcome of the prosecution, and the integrity of the administration of justice. Id. at 201. But no government interest can sustain the exclusion of the press and public from a trial or pre-trial proceeding absent findings of necessity articulated on the record. Id.
In order to achieve total closure, (1) a party 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 trial court must consider reasonable alternatives to closure; and (4) the court must make findings adequate to support closure. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995).
Partial closure (allowing some spectators in the courtroom) does not raise the same concerns that total closure raises since at least some audience remains to observe the fairness of the proceedings. Therefore, for partial closure (evicting some members of the audience, for example) a court must only find a “substantial reason” for the closure. Id.
However, the right of access to some pre-trial hearings, such as a bail hearing, is not as strong as the right of access to the trial itself. United States v. Chagra, 701 F.2d 354, 364 (5th Cir. 1983). Closure of a pre-trial bail hearing is thus permissible if the defendant shows that (1) his right to a fair trial will likely be prejudiced by conducting the hearing in public; (2) alternatives to closure cannot adequately protect his fair trial right; and (3) closure will probably be effective in protecting against the perceived danger. Id.
Meanwhile, not all aspects of trials or pre-trial hearings are considered public property. Private “sidebar” conferences about technical legal matters, whether pre-trial or during trial, do not violate the right to a public trial, nor do they violate the press and public’s right to observe and attend a trial. Rovinsky, 722 F.2d at 200.
“The Supreme Court has recognized that the importance of some pretrial proceedings dictates that the rule of openness not be confined to the actual trial.” Indianapolis Star v. United States, 828 F.2d 340, 347 (6th Cir. 1987). The First Amendment right of access includes, among other things, “the proceedings for the voir dire examinations of potential jurors.” In re Petitions of Memphis Publ’g Co., 887 F.2d 646, 648 (6th Cir. 1989).
In In re Petitions of Memphis Publishing Co., the court addressed whether the use of a sound machine to shield voir dire from the public, including the press, in a case with “mammoth pretrial publicity,” was proper. The media intervened to challenge the use and to open the voir dire process. Id. at 647. The district court held that the constitutional right of the defendant to a fair trial justified closing voir dire, but did state that a transcript of voir dire would be available after jury selection was completed. Id. at 647–48. Relying upon Press-Enterprise I and II, the circuit court reversed, holding “that the naked assertion by the district court in this case that defendant’s Sixth Amendment right to a fair trial ‘might well be undermined’ without any specific finding of fact to support that conclusion, was insufficient to justify closure…” Id. at 648.
Judicial recusal proceedings and records have also been found to be historically open, and public access to such proceedings have been found to “play ‘a significant positive role’ in such proceedings.” Application of Nat’l Broad. Co., 828 F.2d 340, 344-45 (6th Cir. 1987) (citing U.S. v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983)).
If materials are sought to be examined in camera, such as the practice of submitting Brady or Giglio materials to a judge for a determination of whether they must be furnished to the defense, the proper means for doing so is not an ex parte hearing, but instead to give notice to defense counsel and the public of the in camera proceedings so that there is an opportunity to argue for an open hearing. Application of Storer Commc’ns, Inc., 828 F.2d 330, 335 (6th Cir. 1987). “[W]hen a prosecutor presents material to the courts for a Brady determination, the court has an obligation to examine the material in camera and determine whether disclosure to the defense is required.” Id. (citing U.S. v. Dupuy, 760 F.2d 1492, 1504 (9th Cir. 1985) (Ferguson, J., concurring)). “Ex parte proceedings, particularly in criminal cases, are contrary to the most basic concepts of American justice and should not be permitted except possibly in most extraordinary cases involving national security.” Id.
In a habeas proceeding challenging the refusal of the court to close a state court pretrial suppression hearing, the Sixth Circuit found no constitutional violations where “extensive pretrial publicity already existed” because the criminal defendant did not show that an open courtroom would “threaten ‘higher values.’” Jackson v. Turner, 1998 U.S. App. LEXIS 27653, at *13–15 (6th Cir. 1998). “Petitioner cannot merely assert prejudice; he must prove it.” Id. at *15 (citations omitted). “The district court correctly found that any potential prejudice was ameliorated by the change of venue and by vigilance at voir dire.” Id. at *17 (citation omitted).
The Sixth Circuit has also favorably cited to application of the Richmond Newspapers “experience and logic” test for “pretrial suppression, due process and entrapment hearings” by the Third Circuit in a criminal case. Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th Cir. 2002) (citing United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982)); see also Indianapolis Star v. United States, 692 F.3d 424, 429 (6th Cir. 2012) (discussing application of the “experience and logic” test to “preliminary hearings, voir dire examinations of prospective jurors, plea hearings, suppressions hearings, and sentencing proceedings”) (citations omitted).
“The right of access to criminal trials includes a right of access to the voir dire examination of potential jurors in a criminal trial. . . . Press-Enterprise declared that ‘closed proceedings . . . must be rare.’” United States v. Peters, 754 F.2d 753, 759 (7th Cir. 1985) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819 (1984)); United States v. Danovaro, 877 F.2d 583, 589 (7th Cir. 1989) (“[t]rials and pre-trial hearings are open to the public under the First Amendment, unless some extraordinary circumstance requires their closure”); United States v. Blagojevich, 662 F. Supp. 2d 998, 1003 (N.D. Ill. 2009) (First Amendment right of access includes voir dire “and trial-like preliminary hearings in criminal cases”); Fort Wayne Journal-Gazette v. Baker, 788 F. Supp. 379, 385 (N.D. Ind. 1992) (“The public and press have a ‘presumption of access’ to both criminal and civil court proceedings”; newspaper reporter had right to be present at state court guardianship hearing).
A pretrial hearing cannot be closed “just as a matter of discretion”; “the party seeking to close the hearing 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)).
See also N.D. Ind. Local Crim. R. 53-1(b) (“Ordinarily, preliminary proceedings (including preliminary examinations and hearings on pretrial motions) must be held in open court, with the public permitted to attend and observe. But the court may close preliminary proceedings if: (1) the law allows it; and (2) the court cites for the record the specific findings that make doing so necessary”).
The Supreme Court has clarified that the right of access to criminal proceedings can include a right to access preliminary proceedings as well. Press-Enterprise II, 478 U.S. at 2.
The Eighth Circuit has recognized a First Amendment right of access to contempt proceedings, “a hybrid containing both civil and criminal characteristics.” In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983).
The Supreme Court of Alabama has held that “the qualified First Amendment right of access to criminal proceedings described in Press-Enterprise II applies to pretrial hearings.” Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433 (Ala. 1992) (citing Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1 (1986)); see also Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. Crim. App. 1993) (discussing application of the public’s right of access to pretrial proceedings generally, as recognized in Ex parte Consolidated Publishing Co.). Therefore, all pretrial proceedings in Alabama courts are presumptively open to the public, subject to the qualifications set forth in Press-Enterprise II and its progeny.
The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including 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); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has generally been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. That constitutional law is, of course, binding upon state courts under the Supremacy Clause. The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less. Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access but would only be enforceable to the extent that they are not unconstitutional.
In pretrial proceedings in a criminal case, the trial court rejected attempts by the defense counsel in a murder case to obtain ex parte the production of allegedly relevant medical records on the grounds that the request itself would be incriminatory and prejudicial. In a memorandum decision (which does not have precedential value), the Alaska Court of Appeals ruled that any objection to the trial court’s ruling that the defense was not entitled to litigate this issue in secret had not been preserved for appeal. Marquez v. State, 2019 WL 211490, at *2–4 (Alaska Ct. App., Jan. 16, 2019) This is anecdotal, and even had the appeals court weighed in on the issue, it would have been nonbinding, but the facts underscore the clear presumption against allowing litigation of issue out of the public eye.
The Supreme Court of Arkansas ruled in Arkansas Television Co. v. Tedder, 281 Ark. 152, 157,662 S.W.2d 174, 175 (1983), that the presumption of openness also applies to pre-trial proceedings. For example, the court found that there was a presumption of public access during a suppression of evidence hearing. Shiras v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979).
Pretrial proceedings are presumed open, as the “right of access applies to preliminary hearings as conducted in California.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10, 104 S. Ct. 2735 (1986). In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999), the California Supreme Court held that California Code of Civil Procedure § 124 establishes a presumption of access to court proceedings. Its analysis was driven largely by U.S. Supreme Court cases finding a First Amendment right of access to criminal proceedings. Thus, its analysis applies to criminal proceedings.
Courts generally may close proceedings or seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 40 Cal. Rptr. 2d 299 (1995) (sealing personal information, driving records and criminal history where dissemination would harm children); Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-1070, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).
California courts have declined to recognize any constitutional or common law right of access to grand jury proceedings or materials, which generally are kept confidential. See Daily Journal Corp. v. Superior Court, 20 Cal. 4th 1117, 1128-1129, 979 P.2d 982, 86 Cal. Rptr. 2d 623 (1999) (trial court had no authority to release grand jury materials except as provided by statute). However, a statute creates a right of access to some grand jury materials following an indictment. See Cal. Penal Code § 938.1(b).
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.
In In re P.R. v. Dist. Court, 637 P.2d 346 (Colo. 1981), the Colorado Supreme Court held that the evidentiary phase of a contempt hearing, stemming from a witness’s refusal to answer questions before a grand jury, “may be closed only upon express findings by the respondent court that: (1) a public hearing would create a clear and present danger to the investigation of matters presently pending before the statutory grand jury; and (2) the prejudicial effect of such information on presently pending grand jury matters cannot be avoided by any reasonable alternative less drastic than closure.” Id. at 353. The court clarified that a “finding of clear and present danger, by itself, does not constitute a warrant for an order of closure. Such a finding merely triggers the next level of inquiry—that is, whether reasonable and less drastic alternatives are available to the order of closure.” Id. at 354. The court held that the trial court’s “total closure of the evidentiary phase of the contempt hearing, without a finding of compelling necessity” violated the witness’s due process rights under the Fourteenth Amendment “as well as the constitutional interest of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial” under both the First Amendment and Colorado Constitution. Id. at 354. The court also ruled, however, that the “court may hear in camera any testimony relative to the effect of a public hearing on the integrity of grand jury proceedings prior to its ruling on closure, the record of such hearing to be sealed for purposes of appellate review.” Id. The court made clear that “the burden is upon the party seeking closure to establish the factual basis for the application.” Id. at 353.
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 recognized 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 access to criminal court records. People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018); see also 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).
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. Even before this codification, the Connecticut Supreme Court specifically recognized a presumption of openness that extended to pretrial criminal proceedings. See State v. Kelly, 45 Conn. App. 142, 145, 695 A.2d 1, 3 (1997) (“A right of public access to pretrial criminal proceedings has been recognized by the United States Supreme Court and this court.”) (citing Press–Enterprise v. Superior Court, 478 U.S. 1 (1986); State v. Franzese, 23 Conn. App. 433, 580 A.2d 538 (1990)).
Note: Connecticut has largely abandoned the use of grand juries, which are not necessary for criminal prosecution. In the event one is impaneled to decide whether a person should be charged with a crime, the proceedings are closed to everyone aside from the prosecutor(s), witness(es), and jurors. E.g., State v. Canady, 187 Conn. 281, 290 (1982).
In federal criminal proceedings—regardless of phase—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 held that public rights of access attach to “completed” plea agreements, but not to “unconsummated” plea agreements. United States v. El-Sayegh, 131 F.3d 158, 160-61 (D.C. Cir. 1997) (finding no right of access to a withdrawn plea agreement); Wash. Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991) (holding that First Amendment protects public access to plea agreement on which judgment has been entered); see also United States v. Brice, 649 F.3d 793, 796 (D.C. Cir. 2011) (denying access to material witness proceedings).
A D.C. district court found no right of access to an entire deposition given in a criminal prosecution by former President Ronald Reagan in view of the strong likelihood that information damaging to national security would be revealed. United States v. Poindexter, 732 F. Supp. 165 (D.D.C. 1990) (media given access to videotape of deposition, edited to redact any national security information).
Local D.C. courts recognize that the public and press have a presumptive, First Amendment right of access to written jury questionnaires used as part of the voir dire process. In re Access to Jury Questionnaires, 37 A.3d 879, 885–87 (D.C. 2012).
The D.C. district court’s Local Criminal Rule 17.1 governs the procedure necessary to close pretrial proceedings in criminal cases. LCrR17.1(c) sets forth the procedure for media organizations opposing closing pretrial proceedings, and provides that:
[A]ny news organization or other interested person may be heard orally or in writing in opposition to a closure motion by a party. When any papers are filed by a non-party opposing closure, the matter shall be assigned a Miscellaneous docket number and shall be governed by LCrR 57.6. A non-party seeking to appeal from an order of closure shall be responsible for filing in the Miscellaneous proceeding the order from which the appeal is taken, and such other parts of the record of the criminal case as may be necessary to determination of the appeal.
District of Columbia
In United States v. Edwards, 430 A.2d 1321 (D.C. 1981), the D.C. Court of Appeals held that the First Amendment provides a right of public access to pretrial proceedings, reasoning that “[p]ublic access to judicial proceedings serves an amalgam of functions, functions which are as applicable to critical pretrial hearings as to trials.” Id. at 1344. The court found that “[a]bsent findings of fact based upon a showing clearly demonstrating that pretrial publicity will jeopardize the parties’ right to a fair trial and that no alternative means are available to accord a fair trial without threatening the substantial public interest in open proceedings, it is error to order closure.” Id. at 1346. But see McClinton v. United States, 817 A.2d 844, 860 (D.C. 2003) (holding that there was no violation of a criminal defendant’s Sixth Amendment right to a public trial where “the trial judge temporarily closed the courtroom during a pretrial hearing on a motion to dismiss the indictment to avoid intimidation of one witness,” whom the trial court found was “obviously intimidated by the people in the courtroom”).
There is no First Amendment right of access to criminal depositions or deposition transcripts that are not filed with the court, according to Florida law. Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 382 (Fla. 1987) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)). Accord Post-Newsweek Stations, Florida, Inc. v. State, 510 So. 2d 896 (Fla. 1987) (media not entitled to notice and opportunity to attend pretrial discovery depositions in criminal cases).
The Florida Supreme Court has also disclaimed a First Amendment right to attend pretrial suppression hearings or other pretrial hearings, albeit in a case decided before Press-Enterprise II, in which the Supreme Court recognized the right of access to preliminary hearings in criminal cases. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983). However, pretrial hearings are presumptively open. Id. at 8. Recently, the First District Court of Appeal held that the public’s qualified right of access under the First and Fourteenth Amendments, attaches to the jury section proceedings, including challenges of jurors when a trial court limited the media’s access to an audio feed in an overflow room, which was not shut off at times. Morris Publ’g Grp. v. State, 136 So. 3d 770, 780-84 (Fla. 1st DCA 2014).
Florida also provides for access to digital recordings of proceedings as court records. In Re Amendments to Fla. R. Jud. Admin. & Fla. R. App. P. – Implementation of Comm’n on Trial Ct. Performance & Accountability Recommendations, 13 So. 3d 1044, 1047 (Fla. 2009).
It is well established in Georgia that the public enjoys a clear and routine right of access to pretrial criminal proceedings. The Supreme Court of Georgia has emphasized that the importance of openness in judicial proceedings applies with equal force to pretrial hearings finding that it “is often the most critical stage of a criminal proceedings,” regardless of whether such proceedings and records will bring to light potentially inadmissible evidence. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578–79 (1982) (reversing the trial court’s exclusion of the press from pretrial hearings, including hearings on motions for change of venue, individual and sequestered voir dire of prospective jurors and admissibility of certain evidence in a murder trial). See also Presley v. Georgia, 558 U.S. 209 (2010) (“The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”); State v. Brown, 293 Ga. 493 (2013) (quashing indictment not returned in open court).
In Bradbury, the Idaho Supreme Court specifically recognized that the First Amendment right of access applies to criminal pretrial proceedings. 136 Idaho at 70, 28 P.3d at 1013 (citing El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (1993)). More specifically, the Idaho Supreme Court has held that the public has a qualified right to attend preliminary hearings. A preliminary hearing may be closed at the defendant’s request pursuant to I.C. § 19-811, but the court must first make specific findings that a substantial probability exists that the defendant’s right to a fair trial will be prejudiced and that reasonable alternatives cannot adequately protect the defendant’s right to a fair trial. Cowles Publ’g, 118 Idaho at 760, 800 P.2d at 647 (citing Press-Enterprise v. Superior Court, 478 U.S. 1 (1986)). “The clear presumption in nearly all states that preliminary hearings are generally open to the public absent the request of the defendant has also been the recognized and traditional practice in Idaho.” Cowles Publ’g, 118 Idaho at 757, 800 P.2d at 644.
In Illinois, most pretrial proceedings are presumptively open. See People v. LaGrone, 361 Ill. App. 3d 532, 533, 838 N.E.2d 142, 145, 297 Ill. Dec. 655, 656 (Ill. App. Ct. 4th Dist. 1992). In LaGrone, the appellate court reversed a trial court’s refusal to allow access to pretrial hearings regarding the admissibility of certain evidence, holding that the Press-Enterprise II standard applied to the review of pretrial proceedings because “it has been viewed as the appropriate standard for ‘fair-trial’ closures of all parts of the criminal process to which the first amendment right of access applies.” LaGrone, 361 Ill. App. 3d at 536, 838 N.E.2d at 146, 297 Ill. Dec. at 659 (internal alterations and citation omitted).
Historically, the most obvious exception to the presumption of access to pretrial hearings in Illinois was 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). In Kelly, the appellate court confirmed the denial of the media’s motion for access to closed pre-trial proceedings regarding evidence of other crimes (which included sex with a minor) by the defendant and to juror questionnaires because they were not historically open to the public prior to their introduction at trial. Kelly, 397 Ill. App. 3d at 259–60, 921 N.E.2d at 358–59.
Not long after Kelly was decided, a circuit court in Will County, Illinois denied a motion to close pretrial hearsay evidence hearings in the notorious Drew Peterson murder trial. See People v. Peterson, No. 09-CF-1048 (Will Co. Cir., Ill.). There, the defense counsel cited Kelly in support of its motion to close the hearings and seal records thereof, but the judge denied the motion, noting that the court had taken several steps to ensure that the trial would be fair (including sending another letter to potential jurors reminding them of their obligation), and apparently adopting the media’s arguments that the Kelly case was unique and not dispositive.
Recently, however, the Illinois Supreme Court held that a presumption of access does not apply to motions in liminecontaining discovery materials. People v. Zimmerman, 120 N.E.3d 918 (IL 2018). The appellate court in Zimmerman explicitly disagreed with the Kelly court’s “suggestion” that “motions in limine and their related hearings traditionally have not been accessible to the public” because “despite the fact [that] motions in limine address potential evidence for trial, they are contained in the general criminal case file and in the general record on appeal,” and “hearings on such motions are generally not closed.” People v. Zimmerman, 79 N.E.3d 209, 214 (Ill. App. Ct. 4th Dist. 2017), rev’d, 120 N.E.3d 918 (IL 2018). The Illinois Supreme Court reversed the appellate court’s opinion. First, the Court found that both prongs of the Press-Enterprise II “experience and logic test” weighed against a presumption of First Amendment access. Zimmerman, 120 N.E.3d at 924-26. Second, although the common law presumption of access attached, the trial court did not abuse its discretion by allowing the motions in limine to remain sealed until after the jury was empaneled because the right of public access to documents filed with the court is not absolute, the evidence at issue in the two motions was not publicly available, and the trial court possesses supervisory authority over its own records and files. Id. at 927. In addition, the Court found that the trial court attempted to strike a careful balance between the common law right of access to court records and the defendant’s right to a free trial, which could be undermined by publicly revealing discovery material that would not be admitted at trial. Id.
Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Nothing in the statute indicates that “[c]riminal proceedings” does not include pretrial proceedings.
The Indiana Constitution provides the accused in a criminal case the right to a public trial, which may include pretrial proceedings. Ind. Const. Art. 1 § 13. “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, or other proceeding.” Williams v. State, 690 N.E.2d 162, 167–68 (1997) (citations omitted) (emphasis added). But see State ex. rel. Post-Tribune Publ’g Co. v. Superior Ct., 412 N.E.2d 748, 750 (Ind. 1980) (“A ‘trial’ for [constitutional] purposes is considered to be the actual trial by jury upon the issue of guilt or innocence.”). In Post-Tribune Publishing, the Indiana Supreme Court took “the same stance” as the United States Supreme Court that the public and the press have a First Amendment right to access pre-trial proceedings. Post-Tribune Publ’g, 412 N.E.2d at 410. The Court ultimately concluded that the relators did not sustain their burden in showing that the trial court should not have ordered closure of a bail hearing, but the current statutes governing access to criminal proceedings were not then in place. See id.; Ind. Code § 5-14-2, et seq.
Iowa has recognized that the right of public access applies to pretrial suppression hearings. Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 924 (Iowa 1983) (citations omitted). Further, the Iowa Supreme Court has held that “a qualified right of public access attaches to preliminary hearings as they are conducted in Iowa.” Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142, 147 (Iowa 1988). In acknowledging the qualified right in Des Moines Register & Tribune Co., the court found that both elements of the Supreme Court’s Press-Enterprise II analysis were satisfied. Id. at 145–47 (citing Press-Enterprise Co. v. Superior Court, (Press-Enterprise II) 478 U.S. 1, 13 (1986)) (“First, the court must consider whether the place and process have historically been open to the press and general public. Second, the court must consider whether public access plays a significant positive role in the functioning of the particular process in question.”). Thus, because a qualified right of public access attaches to preliminary hearings in Iowa, proceedings cannot be closed unless specific findings are made on the record in accordance with the Press-Enterprise II test. See id. at 147–48 (citing Press-Enterprise II, 478 U.S. at 13–14) (The test requires findings that demonstrate ‘“closure is essential to preserve higher values and is narrowly tailored to serve that interest.’”). This may include requiring judges to hold initial appearances in a courtroom and not in their office, which would effectively prevent the county attorney, the public defender, domestic abuse case workers, and the public from being present. See In re Inquiry Concerning Holien, 612 N.W.2d 789, 792 (Iowa 2000) (considering evidence that Judge Holien conducted initial appearances in her office, which “effectively prevented the county attorney, the public defender, domestic abuse case workers, and the public from being present”).
In Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), the Kansas Supreme Court made clear that a presumption of openness applies to pretrial proceedings. Standards on fair trials that the state supreme court adopted include reference to “a preliminary hearing, bail hearing, or any other pretrial proceeding, including a motion to suppress.” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).
In Kentucky, the public right of access has been extended to include pre-trial criminal proceedings. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 752 (Ky. Ct. App. 1980). The right also extends to jury selection. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658 (Ky. 1983). The right of access also applies to contempt hearings within criminal cases. Riley v. Gibson, 338 S.W.3d 230, 234 (Ky. 2011).
The Louisiana Constitution provides a right of access to judicial proceedings in criminal cases. Article 1, § 22 states: “All courts shall be open.” 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, 1137 (La. 1982).
“The public and press have an enforceable qualified constitutional right of access to attend criminal trials and pretrial proceedings.” State v. Widenhouse, 556 So.2d 187, 189–90 (La. App. 1990); State v. Fletcher, 537 So.2d 805, 807 (La.App. 1989); State v. Eaton, 483 So.2d 651, 659 (La. App. 1986). The presumption of openness “may be overcome only by an ‘overriding interest’ such as the accused’s right to a fair trial.” Widenhouse, 556 So.2d at 189–90.
Even if access may be denied, “the public must be given an opportunity to be heard before closure is ordered.” State v. Womack, 551 So.2d 855, 858 (La. App. 1989).
The Louisiana Supreme Court ordered a motion to suppress hearing closed on the defendant’s motion, over a vigorous dissent by then-Justice Dennis (who now serves on the United States Fifth Circuit Court of Appeals), in State v. Birdsong, 422 So.2d 1135 (La. 1982). The Court held that, to justify closing a pre-trial hearing, the defendant “should only have to show a reasonable likelihood of substantial prejudice to his right to a fair trial.” Id. at 1136 (emphasis in original). Subsequent to Birdsong, the United States Supreme Court in Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1 (1986), held that a preliminary hearing may be closed to protect fair trial rights only “if specific findings are made demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced. . . .” 478 U.S. at 14 (emphasis added).
Apparently trying to finesse the gap between Press-Enterprise II and Birdsong, the Louisiana Second Circuit Court of Appeal has stated that a defendant seeking to close a pre-trial hearing must make a showing that: “(1) His right to a fair trial will likely be prejudiced by conducting the hearing publicly; (2) Alternatives to closure cannot adequately protect his fair trial right; and (3) Closure will probably be effective in protecting against the perceived danger.” State v. Eaton, 483 So.2d 651, 659-60 (La. App. 1986) (emphasis added); see also State v. Widenhouse, 556 So. 2d 187, 190 (La. Ct. App. 1990).
As noted, the Supreme Judicial Court has followed federal precedent governing the standard for closing criminal proceedings in Maine. See Roberts, 2014 ME 12 ¶ 24. The Maine Legislature has articulated a somewhat different statutory standard: All pre-trial criminal proceedings are open to the public unless the court finds “a substantial likelihood” that (A) injury or damage to the accused’s right to a fair trial will result from conducting the proceeding in public; (B) alternatives to closure will not protect the accused’s right to a fair trial; and (C) closure will protect against the perceived injury or damage. 15 M.R.S.A. § 457.
The Supreme Judicial Court has also followed Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), in holding that “[a]t the jury voir dire stage of a criminal trial, the public, including the press, has rights protected by the First Amendment to the United States Constitution.” MaineToday, 2013 ME 12, ¶ 3. The court has held that “generalized concern that juror candor might be reduced if voir dire is conducted in public is insufficient pursuant to Press-Enterprise to bar the public or media from the entirety of the process.” Id. ¶ 7. Juror voir dire must be conducted “in a presumptively public manner” subject to measures to “prevent dissemination of sensitive juror information.” Id. ¶ 9.
In a Sixth Amendment post-conviction challenge to individualized voir dire held in chambers, the Law Court held that defense counsel who affirmatively agreed to closed juror voir dire had not provided ineffective assistance. See Roberts, 2014 ME 125, ¶¶ 27–28.
In a Maine case concerning public access to a bindover hearing (to determine whether two juveniles arraigned in Juvenile Court would be bound over for trial as adults), the court concluded that “a qualified First Amendment right of access applies to bindover hearings involving serious crimes” and that “it is difficult to imagine a fact situation where the media could ever be lawfully excluded from a bindover hearing.” See In re Am. Journal, 1986 Me. Super. LEXIS 347, at *7 (Me. Super. Ct. Dec. 3, 1986).
The Maryland courts also have recognized that the public’s right of access to criminal cases extends beyond criminal trials to pretrial proceedings. Baltimore Sun Co. v. Colbert, 593 A.2d 224, 229–30 (Md. 1991) (“[P]resumption that pretrial proceedings are open to the public can be overcome only by an ‘overriding interest,’ such as an accused’s right to a fair trial.”). Specifically, the appellate courts have affirmed the right of the public to attend pretrial suppression hearings, Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 427 (Md. 1983) (finding “right of public access to pretrial hearings in criminal cases”), as well as hearings concerning proposed gag orders, Patuxent Publ’g Corp. v. State, 429 A.2d 554, 556 (Md. Ct. Spec. App. 1981) (defendant’s right to an impartial jury did not outweigh public’s First Amendment right of access to pretrial gag order hearing where there existed other “lesser and alternative” means for protecting defendant’s Sixth Amendment rights).
Massachusetts, following Supreme Court precedent, has recognized a public right of access to different types of pretrial criminal hearings. See, e.g., Commonwealth v. Chism, 65 N.E.3d 1171, 1178 (Mass. 2017) (suppression hearing) (citing Waller, 467 U.S. at 48); Commonwealth v. Jones, 37 N.E.3d 589 (Mass. 2015) (rape shield hearing); Eagle-Tribune Pub. v. Clerk-Magistrate, 863 N.E.2d 517, 524–25 (Mass. 2007) (probable cause hearing); Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (post-verdict hearing considering allegations of prejudicial influences on criminal jury); Commonwealth v. Hobbs, 434 N.E.2d 633, 637 (Mass. 1982) (suppression hearing).
The Massachusetts Supreme Judicial Court has found that a First Amendment right of access does not apply to show cause hearings that take place before any criminal prosecution has begun, though the court noted that there may be circumstances in which a public show cause hearing would be appropriate. See Eagle-Tribune Pub. v. Clerk-Magistrate, 863 N.E.2d 517, 524–26 (Mass. 2007). Courts may conduct open show cause hearings where they believe that the public interest outweighs the accused’s right of privacy. Id. (citing Standards of Judicial Practice, The Complaint Procedure, Standard 3:16). For instance, “[w]here an incident has already attracted public attention prior to a show cause hearing, the interest in shielding the participants from publicity is necessarily diminished, while the public’s legitimate interest in access is correspondingly stronger.” Id. at 527 (Mass. 2007).
In deciding whether there is a presumption of openness to a certain type of proceeding, Massachusetts courts consider the traditional “Press-Enterprise test.” See, e.g., Eagle-Tribune Pub. Co., 863 N.E.2d at 523 (citing Press–Enterprise II, 478 U.S. 1, 8 (1986)). The test considers (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.” Press-Enterprise II, 478 U.S. at 8(citations omitted).
Where there is a presumption of openness to a certain type of judicial proceeding, Massachusetts courts apply the Supreme Court’s Waller factors to determine whether closure is appropriate: “ the party seeking to close the hearing 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.” See, e.g., Commonwealth v. Martin, 629 N.E.2d 297, 302 (Mass. 1994) (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)). The court’s findings (factor four) “must be particularized and supported by the record.” Boston Herald, Inc. v. Super. Ct., 658 N.E.2d 152, 155 (Mass. 1995) (citations omitted).
The Minnesota Supreme Court has held that the public has a First Amendment right of access to criminal pretrial proceedings. Minneapolis Star & Tribune Co. v. Kammeyer, 341 N.W.2d 550, 556 (Minn. 1983). According to the court, “[p]retrial proceedings play a major role in the modern criminal trial, and public access tends to strengthen this important component of the criminal justice system.” Id. Further, under the Minnesota Rules of Criminal Procedure, pretrial hearings are open to the public. Minn. R. Crim. P. 25.01, subd. 1. The court may, however, close the hearing if it finds that there is a “substantial likelihood” that an open hearing will interfere with “an overriding interest.” Id; Kammeyer, 341 N.W.2d at 556.
Likewise, the Mississippi Supreme Court has stated that there is a presumption of openness to pretrial criminal proceedings. “The preliminary hearing shall be closed only if specific findings are made demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's free trial rights.” Miss. Publishers Corp. v. Coleman, 515 So.2d 1163, 1164-65 (Miss. 1987) (quoting Press Enterprise II); see also Edmonds v. State, 955 So. 2d 864, 899 (Miss. Ct. App. 2006) (upholding the trial court’s decision to restrict access to suppression hearing to protect the constitutional right of another defendant to a fair trial), rev'd on other grounds, 955 So. 2d 787 (Miss. 2007).
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).
The Nebraska Guidelines contemplate that the only criminal case hearings that may be closed in whole or in part to the public are hearings where the voluntariness of a confession may be seriously disputed, or where the defendant is seeking to suppress evidence allegedly obtained illegally. In such circumstances, the court may close all or part of such a hearing only upon finding, in writing:
(A) that the evidence establishes an adequate basis to support a finding that there is a substantial likelihood that irreparable damage to the accused’s right to a fair trial will result from conducting the questioned proceedings in public,
(B) that a substantial likelihood exists that reasonable alternatives to closure will not adequately protect the accused’s right to a fair trial; and
(C) there is a substantial likelihood that closure will be effective in protecting against the perceived harm.
Neb. S. Ct. R. § 6-204.
At the pre-indictment or pre-arrest stage, although the presumption of openness applies, the New Hampshire Supreme Court has created a special rule for “what constitutes an ‘overriding consideration or special circumstance’ . . . to overcome the presumption of access.” Petition of State (Bowman Search Warrant), 146 N.H. 621, 625 (2001). There, the Court held “that in most pre-indictment criminal investigations, the existence of an investigation itself will provide the ‘overriding consideration or special circumstance, that is, a sufficiently compelling interest, that would justify preventing public access to the records.’” 146 N.H. at 629.
The presumption of openness guaranteed by the state constitution applies to probable cause hearings under the Sexually Violent Predator Act, RSA Ch. 135-E. State v. DeCato, 156 N.H. 570 (2007).
New Mexico embraced the Supreme Court’s holding in Press-Enterprise Co. v. Super. Ct. (Press-Enterprise II), 478 U.S. 1 (1986) that access to criminal proceedings applies to preliminary hearings. Further, preliminary proceedings cannot be closed unless specific, on the record findings are made demonstrating a “reasonable likelihood” exists that access would deprive defendant of a fair trial (lesser burden then the “substantial probability” test required by First Amendment). N.M. Const. art. II, § 14 (citing Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986)). Finally, New Mexico follows the Supreme Court’s ruling in Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976), to hold that pretrial publicity, even pervasive, adverse publicity, does not inevitably lead to an unfair trial. See, e.g., State v. Vasquez, 2010-NMCA-041, ¶ 38, 148 N.M. 202, 213, 232 P.3d 438, 449 (citing State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991) (“Exposure of venire members to publicity about a case by itself does not establish prejudice.”).
New Mexico Rules support the common law tradition. Because “[a]ll courtroom proceedings shall be open to the public unless the courtroom is closed by an order of the court entered under this rule,” Rule 5-124(A) NMRA, it follows that pretrial proceedings are accessible to the public as well.
In State v. Demery, 0094 WL 16067890 (N.C. Super. 1994), a criminal defendant asked the court to exclude the public and press from all pretrial hearings and to temporarily seal all records and transcripts. In denying the request in favor of media-intervenors, the court cited Waller v. Georgia, 467 U.S. 39 (1984) (holding that the presumptive right of access to all phases of criminal proceedings may be overcome only if the party seeking closure demonstrates an overriding interest that will be prejudiced if closure is not granted), and said that "if a trial court grants a closure order, it must enter a narrowly tailored written order containing specific findings based on particularized evidence demonstrating why the court must be closed during each separate proceeding or hearing as to which closure is sought." Demery at 1.
In Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986), the North Dakota Supreme Court has established the procedure to be followed by the trial court in considering a request for closure of a preliminary proceeding:
- Review the evidence independently and, if necessary to protect the defendant’s right to a fair trial, privately, with counsel present and on the record.
- Consider possible alternatives to closure.
- If the court determines there is a substantial likelihood of prejudice to the defendant’s right to a fair trial, the closure may be ordered only to the extent necessary to protect that right.
- The court must make specific findings adequate to support closure.
The media may not directly intervene as a party in a motion for closure of a preliminary proceeding under N.D.C.C. § 29-07-14. However, the North Dakota Supreme Court held in Dickinson Newspapers v. Jorgensen, 338 N.D. 72 (N.D. 1983) that the news media can apply for a supervisory writ to prevent the closing of a preliminary hearing. However, an application for a writ of this nature must include the party requesting the closure (typically the criminal defendant) as a respondent.
The Ohio Supreme Court has likewise held the public has a right to attend pretrial proceedings under the Ohio Constitution and the United States Constitution. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 40 (Ohio 1986) (applying the First Amendment standard to pretrial proceedings). As a result, the media and public have a right to attend integral parts of the criminal prosecution including “preliminary probable-cause hearings, suppression hearings, [and] bail hearings.” State v. Morris, 811 N.E.2d 577, 579 (Ohio Ct. App. 2004); see also State ex rel. Dayton Newspapers, Inc. v. Phillips, 351 N.E.2d 127 (Ohio 1976) (holding court order closing a pretrial suppression hearing to be unconstitutional).
Mental competency hearings or jury trials in connection with criminal proceedings are open to the public to the same extent as criminal trials. Okla. Pub. Co. v. Martin, 1980 OK 153, 618 P.2d 944. On the other hand, hearings concerning the immunity of grand jury witnesses can be closed to the public and media. In re Proceedings of Multicounty Grand Jury, 1993 OK CR 12, 847 P.2d 812.
In Oregon, the access guarantee of the constitution applies where the hearing in question is adjudicatory in nature. Oregonian Pub. Co. v. O’Leary 303 Or. 297, 303, 736 P.2d 173 (1987) (finding a law that required closure of summary hearings on motions to compel testimony unconstitutional); accord State v. Blake, 53 Or. App. 906, 913 n.4, 633 P.2d 831 (1981) (“[I]t is clear that in Oregon the provision of Article I, section 10, that ‘no court shall be secret,’ applies to all judicial proceedings.”).
However, Oregon courts have closed pretrial competency hearings for minors. State v. Romel, 57 Or. App. 372, 375, 644 P.2d 643 (1982). Oregon’s rape shield law has survived two challenges to its constitutionality under Article I, section 10 of the Oregon Constitution. See State ex rel Davey v. Frankel, 312 Or. 286, 823 P.2d 394 (1991) (holding that a law requiring review to be “in chambers” does not necessarily exclude the public); State v. Blake, 53 Or. App. 906, 633 P.2d 831 (1981) (holding that a law excluding the public from hearings regarding sexual history was constitutional), review allowed 291 Or. 893, 642 P.2d 309, appeal dismissed 292 Or. 486, 640 P.2d 605 (dismissing appeal where the legislature enacted the law construed in Davey). Oregon’s current rape shield law, ORS 40.210, explicitly excludes the public from review of evidence of prior sexual history, and the Oregon Supreme Court upheld its constitutionality in State v. Macbale, 353 Or. 789, 809, 305 P.3d 107, 119 (2013) (concluding that “a hearing to determine the admissibility of evidence under [ORS 40.210] does not constitute an administration of justice for purposes of Article I, section 10, and that the legislature may provide that such a hearing be closed to the public”).
The public and press have a general right to access all parts of a criminal proceeding, including pretrial proceedings. Commonwealth v. Upshur, 924 A.2d 642, 649 n.6 (Pa. 2007).
Search warrant proceedings: The Pennsylvania Rules of Criminal Procedure provide that the process for obtaining search warrants is closed to the public and is conducted ex parte. See Pa. R. Crim. P. 209-12. The Rules make clear that “[t]he issuing authority shall not make any search warrants and any affidavit(s) of probable cause available for public inspection or dissemination until the warrant has been executed.” Pa. R. Crim. P. 212(a). The Rules further provide that “[u]nexecuted warrants and the associated affidavits of probable cause are not public records and upon return to the issuing authority the unexecuted warrants and affidavit(s) shall be destroyed by the issuing authority.” Id. at 212(b). Once a search warrant is executed, the Rules set forth a procedure whereby the government can seek to seal the affidavit supporting the search warrant for “good cause.” Pa. R. Crim. P. 211.
The Pennsylvania Supreme Court has instructed that “a search warrant is a public judicial document.” PG Publ’g Co. v. Commonwealth, 614 A.2d 1106, 1108 (Pa. 1992). Yet, “[t]he ex parte application for the issuance of a search warrant and the issuing authority’s consideration of the application are not subject to public scrutiny.” Id. And, while the Court noted in a case involving access to search warrant documents that “[t]here is no historical tradition of public access to search warrant proceedings,” it acknowledged that search warrant applications are filed with district justices and that those documents “upon which the district justice bases a decision to issue a search warrant are also judicial in character, for the decision to issue a search warrant is a judicial decision.” Id. Once a search warrant has been executed, the “need for secrecy will ordinarily expire.” Id.
Preliminary hearings: The preliminary hearing is an integral part of the criminal process and, thus, is subject to the presumption of openness. Before closing a preliminary hearing, the trial judge must consider the public’s right of access and alternative means of protecting any rights asserted by the defendant, and the court must articulate the reasons for closure and alternatives on the record. See In re Daily Item, 456 A.2d. 580, 582 (Pa. Super. 1983); see also Commonwealth v. Murray, 502 A.2d 624, 626, 629 n.5 (Pa. Super. 1985).
Suppression: The Pennsylvania Supreme Court has held that access to pretrial suppression hearings is governed by the same standards as access to pretrial proceedings in general. Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425, 434 (Pa. 1978); see also Commonwealth v. Hayes, 414 A.2d 318, 324 (Pa. 1980) (ruling that closure was improper because of the availability of a less restrictive alternative (i.e., sequestration of the jury)).
Depositions: There are no criminal cases reported in Pennsylvania that have dealt specifically with deposition proceedings. However, the Pennsylvania Superior Court has held that in civil proceedings “access rights to litigation are at their nadir” during the discovery phase. Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 958 (Pa. Super. 1989) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)). As a result, “there is no presumptive right to discovery material” in civil cases. Kurtzman v. Hankin, 714 A.2d 450, 452-53 (Pa. Super. 1998). Because depositions are performed during the discovery phase of litigation, it is likely that the presumptive right of access does not attach.
Preservation of Testimony Proceedings: Proceedings under Pennsylvania Rule of Criminal Procedure 500, which are held for the purposes of preserving the testimony of a witness in anticipation of a criminal trial, are not subject to a First Amendment right of access. See Commonwealth v. Selenski, 996 A.2d 494, 499 (Pa. Super. 2010) (holding that the right of access does not apply because such proceedings are akin to discovery depositions).
The Rhode Island Supreme Court has recognized that the public’s right of access “has been specifically interpreted as including the right of access to the voir dire examination of prospective jurors in a criminal trial.” Providence Journal Co. v. Superior Court, 593 A.2d 446, 448 (R.I. 1991) (citing Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501 (1984)). In State v. Cianci, the Rhode Island Supreme Court delineated a four-part inquiry that applies when determining whether the presumption of access to criminal trials is rebutted. 496 A.2d 139, 144 (R.I. 1985) (citing Press-Enterprise Co., 464 U.S. at 511-14). In In re Derderian, the Superior Court applied the test from Cianci to hold that a newspaper’s request for access to the completed preliminary jury questionnaires was denied. M.P. No.: 06-835, 2006 R.I. Super. LEXIS 134, at *14-32 (R.I. Super. Ct. October 12, 2006) (citing State v. Cianci, 496 A.2d 139, 144 (R.I. 1985)).
In Ex parte First Charleston Corp., 495 S.E.2d 423, 425 (S.C. 1998), the South Carolina Supreme Court held that the trial court had erred in closing a bond hearing because the record did not support “a finding of substantial probability of prejudice from publicity since extensive details had already been disclosed in the press regarding the defendant and the crime with which he was charged.”
In Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86 (S.C. 2006), the South Carolina Supreme Court reversed the trial court’s closure of the courtroom during a pretrial suppression hearing in a capital murder case. The court held that concerns over pretrial publicity did not justify infringement upon First Amendment and state access rights because closure of the hearing would not prevent additional publicity at trial.
Texas courts of appeals have recognized that the presumptive right of access applies to pretrial proceedings. See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (citing to U.S. Supreme Court cases applying the media’s right of access to preliminary hearings); Houston Chronicle Publ’g Co. v. Dean, 792 S.W.2d 273, 274 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding) (pre-trial motion to transfer venue).
The Texas Court of Criminal Appeals has similarly ruled that Court of Inquiry proceedings must remain open to the public, as required specifically by Article 52.07 of the Texas Code of Criminal Procedure. See Eagle Printing Co. v. Delaney, 671 S.W.2d 883, 887–88 (Tex. Crim. App. 1984) (en banc); see also Tex. Code Crim. Proc. Ann. art. 52.07 (“All evidence taken at a Court of Inquiry shall be transcribed by the court reporter and all proceedings shall be open to the public”). The court declined to weigh competing interests against the public’s right of access to criminal proceedings, noting that there were competing Sixth Amendment and First Amendment interests in federal cases where courts engaged in a balancing analysis. See Eagle Printing, 671 S.W.2d at 887. Later receiving a transcript “is no substitute for public presence during the proceedings.” Id. at 888.
While not controlling over Texas state courts, federal precedent may be referenced as persuasive precedent where helpful when interpreting the Texas Constitution. See Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992). The Fifth Circuit’s opinion in United States v. Chagra determined that the First Amendment right of access applies to pretrial criminal proceedings and bail reduction hearings. See 701 F.2d 354, 363–64 (5th Cir. 1983). That court based its decision on the modern importance of pretrial procedure and reasoned that the lack of historic importance of these proceedings did not preclude a right of access to these hearings. See id. at 363.
A federal district court sitting in Texas has further refined the right of pretrial access by differentiating between pre-indictment and post-indictment proceedings. See United States v. Ketner, 566 F. Supp. 2d 568, 587 (W.D. Tex. 2008). In that case, the would-be intervenor asked the court to unseal all plea agreements and open all plea hearings in the case. See id. at 571. The court, reasoning that pre-indictment plea agreements are tools used in prosecutors’ regular exercise of prosecutorial discretion, concluded that there is no right of public access to proceedings associated with an investigation, even after a plea agreement is reached. See id. at 587.
The Utah Supreme Court has held that the public and press have right of access to pretrial hearings under the First Amendment, the Utah Constitution, and common law. See 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); State v. Archuleta, 857 P.2d 234, 239 (Utah 1993).“In addition to kindling public misperception and eroding public confidence, closure of significant pretrial proceedings perpetuates general ignorance and cuts off public knowledge necessary to a full understanding of the criminal justice system.” Kearns-Tribune, 685 P.2d at 521 (internal quotations omitted).
The public’s right of access may be overcome if a trial court finds that disclosure of records containing sensitive or inflammatory information that are not necessarily accurate or admissible would jeopardize the defendant’s chance of receiving a fair trial. Archuleta, 857 P.2d at 239.
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). Indeed, the Court “start[s] with the presumption that pretrial proceedings and documents are open to the public, closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987) (holding that members of the public and news media have a right of access to pretrial suppression hearings under the First Amendment). “To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”). “Criminal proceedings may be closed to the public without violating First Amendment rights only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” State v. Densmore, 160 Vt. 131, 138, 624 A.2d 1138, 1142 (Vt. 1993).
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 access to 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.
“[T]he public’s interest in the conduct of the judicial system may be even more acute when pretrial hearings are involved,” as the overwhelming majority of criminal cases are resolved before trial. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 587, 281 S.E.2d 915, 922 (1981).
Absent an overriding interest, pretrial hearings in criminal matters must be open to the public. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 812 (2002) (quoting Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 585, 281 S.E.2d 915, 921 (1981)).
The public’s qualified right of access extends to suppression hearings. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 588, 281 S.E.2d 915, 922 (1981) (“We believe pretrial suppression hearings are as important to our criminal justice system as the trial itself, and to allow the public to view the trial without any knowledge of what has taken place previously would make the right of access granted in Richmond Newspapers a hollow one.”).
The Virginia Court of Appeals has held that the public has a qualified right of access to criminal competency hearings. See In re Times-World Corp., 25 Va. App. 405, 415, 488 S.E.2d 677, 682 (Va. Ct. App. 1997).
In Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1 (1986) (Press-Enterprise II), the United States Supreme Court held that the public’s qualified right of access extends to preliminary hearings held to determine whether there is probable cause to go to trial, as such hearings are “often the final and most important step in the criminal proceeding,” and “in many cases provide[ ] the sole occasion for public observation of the criminal justice system.” 478 U.S. at 12. For similar reasons, the Fourth Circuit has held that the public’s qualified right of access extends to plea hearings and sentencing. See In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986) (“[E]ven if plea hearings and sentencing hearings are not considered a part of the trial itself, they are surely as much an integral part of a criminal prosecution as are preliminary probable-cause hearings, suppression hearings, or bail hearings, all of which have been held to be subject to the public’s First Amendment right of access.”). The Supreme Court of Virginia has cited the Fourth Circuit’s decision approvingly. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628, 570 S.E.2d 809, 812 (2002) (citing In re Washington Post Co. for the proposition that “Under certain circumstances and with qualifications, [the public’s qualified right of access] extends to inspection of documents filed in connection with such proceedings.”).
The public’s right of access to court proceedings extends to all stages of criminal proceedings because, as the Washington Court of Appeals has noted, a “criminal proceeding is more than just the actual trial.” State v. Loukaitis, 82 Wash. App. 460, 469, 918 P.2d 535 (1996). The public’s right of access extends generally to all “pretrial proceedings,” State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006), including suppression hearings, State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), voir dire, State v. Paumier, 176 Wn.2d 29, 35, 288 P.3d 1126 (2012); individual questioning of potential jurors, State v. Wise, 176 Wn.2d 1, 4, 288 P.3d 1113 (2012), and jury selection, State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009).
The constitutional right to attend criminal trials extends to pretrial hearings in criminal cases. State ex rel. Garden State Newspapers, Inc. v. Hoke, 520 S.Ed.2d 186, 190 (W. Va. 1999) (citing State ex rel. Herald Mail Co. v. Hamilton, 267 S.Ed.2d 544, 165 W.Va. 103 (W. Va. 1980)).
See State ex rel. Storer Broad. Co. v. Gorenstein, 131 Wis. 2d 342, 347–48, 388 N.W.2d 633 (Wis. App. 1986) (footnotes omitted):
It is clear that a trial court judge, in his or her discretion, may close the sitting of a court. Voir direof a jury panel, although a pretrial proceeding, has been held to be a sitting of the court. For a trial court to order closure, however, the reasons must be compelling, substantial, and “weighty and overwhelming.” Such reasons must be sufficient to overcome the presumption that a jury voir direwill be open to the public.
Cf. Stevens v. Manitowoc Cir. Ct., 141 Wis. 2d 239, 248–51, 414 N.W.2d 832 (Wis. 1997):
Based on the Supreme Court’s analysis in Press-Enterprise II, which specifically addressed closure of a preliminary hearing, and the Court’s rationale in extending the sixth amendment public trial right in Waller, we hold that a preliminary examination is sufficiently analogous in the purposes and aims which support the public trial requirement that a qualified sixth amendment public trial right must adhere when closure is sought by the complainant under sec. 970.03(4), Stats. We therefore overrule that part of the holding of Kennon which concludes that a qualified right to a public preliminary examination is not constitutionally guaranteed.
. . .
Under the plain language of sec. 757.14, Stats., there is a presumption of openness which extends to “every citizen” for “the sittings of every court.” The statute makes no exception or special provision for members of the press, though in State ex rel. Newspapers, Inc. v. Circuit Court, 65 Wis. 2d at 69, 221 N.W.2d at 895, this court held that a journalist may invoke the provisions of this statute as a citizen and a member of the public.
See also State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (Wis. 1991) (holding that trial court violated defendant’s Sixth Amendment right by closing preliminary hearing, but fair and errorless trial cured defect); State ex rel. Newspapers, Inc. v. Circuit Court, 124 Wis. 2d 499, 505–06, 370 N.W.2d 209 (Wis. 1985) (noting that the presumption of openness applies to a precomplaint hearing):
We hold that a section 968.02(3) hearing is subject to the same presumption of openness that applies to most judicial proceedings in Wisconsin. This is not based on a conclusion that such a hearing is a “sitting of the court” within the meaning of section 757.14 . . . . Rather, the presumption of openness here is based upon other factors.
The Wyoming Supreme Court has ruled that public participation during preliminary hearings provides a positive and significant role in the functioning of preliminary hearings. Circuit Court of the Eighth Judicial Dist. v. Lee Newspapers, 2014 WY 101, ¶ 19. Pretrial proceedings should only be closed in extraordinary circumstances. Williams v. Stafford, 589 P.2d 322 (Wyo. 1979). If closure is ordered, the court must make a particularized finding on the record justifying closure. Closure to protect fair trial rights may only be effected when there are no reasonable alternatives. Id.