B. Pretrial proceedings
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).
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.
In dicta, the Colorado Supreme Court recently 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).
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.
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 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.”).