C. Criminal trials
“The public and press have a right, guaranteed by the First Amendment, to attend criminal trials.” In re Knight Pub. Co., 743 F.2d 231, 233 (4th Cir. 1984); accord In re Washington Post Co., 807 F.2d 383, 388 (4th Cir. 1986) (“The First Amendment clearly guarantees the right of the press and the public to attend criminal trials.”) (citations omitted); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577 (1980) (“The right of access to places traditionally open to the public, as criminal trials have long been, may be seen as assured by the amalgam of the First Amendment guarantees of speech and press; and their affinity to the right of assembly is not without relevance.”).
The right to attend criminal trials is not absolute. “Nonetheless, there is a strong presumption in favor of openness.” In re Knight Pub. Co., 743 F.2d 231, 234 (4th Cir. 1984).
The public’s First Amendment right of access to criminal trials extends to voir dire. In re Greensboro News Co., 727 F.2d 1320, 1322 (4th Cir. 1984); In re Washington Post Co., 807 F.2d 383, 388 (4th Cir. 1986).
The First Amendment and the Pennsylvania Constitution grant the public and the press a presumptive right of access to criminal trials. See Commonwealth v. Fenstermaker, 530 A.2d 414, 417 (Pa. 1987) (“Criminal trials in the United States have, by historical tradition, and under the First Amendment, been deemed presumptively open to public scrutiny.”).
General witness testimony, testimony of minor witnesses, opening and closing statements: In Commonwealth v. Contakos, 453 A.2d 578, 582 (Pa. 1982) (plurality opinion), the Pennsylvania Supreme Court held that the trial court’s closure of a witness’s testimony, based on safety concerns, to members of the public, while allowing some members of the press to attend, violated the Pennsylvania Constitution: “The public and representatives of the press alike enjoy the constitutional right in Pennsylvania to attend trials. Neither may be excluded because the other is present.” The court did not reach whether the closure violated the First Amendment.
But, Pennsylvania courts have held that witness intimidation, if factually supported, can be the basis for closure: “In appropriate cases, full or partial closure of criminal proceedings may properly be granted in response to witness intimidation. . . . However, a bald assertion of alleged intimidation does not justify the kind of encroachment on a defendant’s Sixth Amendment right to a public trial which clearing the courtroom for witness’ testimony entails.” Commonwealth v. Penn, 562 A.2d 833, 837-38 (Pa. Super. 1989). The trial court must make the prerequisite factual “findings” and consider less restrictive “alternatives.” Id.; see also Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super. 1978) (“Among the circumstances which justify the court in closing the courtroom to spectators are threats of violence to witnesses . . . .”).
Older Pennsylvania cases held that “[w]hen a rape victim testifies to facts which could prove embarrassing or painful to her, a trial court has authority to exclude spectators from the trial temporarily.” Commonwealth v. Smith, 421 A.2d 693, 694 (Pa. Super. 1980) (citing Commonwealth v. Stevens, 352 A.2d 509 (Pa. Super. 1975)); see also Wright, 388 A.2d at 1086 (“Among the circumstances which justify the court in closing the courtroom to spectators are . . . the embarrassment and discomfiture to victims of crimes which require the explication of lurid details.”). Under more recent U.S. Supreme Court precedent, however, courts may not fashion per se rules requiring closure whenever there is testimony from a sexual assault victim. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982) (invalidating on First Amendment grounds a statute mandating courtroom closure during all testimony of minor sex-crime victims). Instead, the decision of whether to close a courtroom during such testimony must be made on a case-by-case basis. See id. at 609.
Jury ‘field trips’: Pa. R. Crim. P. 643 allows the trial court, in its discretion, to order a jury view of a crime scene. The Pennsylvania Superior Court has held that the site of a jury view constitutes part of the “courtroom.” See Commonwealth v. Davis, 635 A.2d 1062, 1065 (Pa. Super. 1993). In Davis, the Superior Court held that a trial court’s order, pursuant to a local rule, prohibiting the media from photographing or videotaping a jury view of the crime scene was a permissible “time, place and manner restriction” and did not violate the First Amendment inasmuch as the press and public were fully able to witness the jury view. Therefore, the presumptive right of access to courtroom proceedings likely extends to jury views, but does not extend so far as to guarantee a right to photograph or videotape jury views.
In camera proceedings: The Pennsylvania Supreme Court has noted that “transcripts of bench conferences held in camera” are not considered public judicial documents subject to a presumption of openness. Commonwealth v. Upshur, 924 A.2d 642, 648 (Pa. 2007). Under this rationale, it is likely that the court would find that in camera proceedings themselves are not subject to a presumption of openness. However, the right of access limits a court’s ability to hold in camera proceedings in the first place: Courts can only hold proceedings in camera where there are circumstances sufficient to overcome the right of access, i.e., there must be a compelling government interest in closure and no less restrictive means available to achieve that interest. See In re Affidavit for Search Warrant for 4011 Wilson Ave., Bethlehem Pa., 42 Pa. D. & C. 3d 467, 469 (Northampton Cty. C.C.P. Mar. 18, 1986) (in camerareview appropriate only where there are “unusual circumstances” that present a compelling government interest in closure) (citing Crawford v. Dominic, 469 F. Supp. 260, 264 (E.D. Pa. 1979)).
“[A]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.” Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 585, 281 S.E.2d 915, 921 (1981) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980)); see also Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988) (“The First and Fourteenth Amendments of the United States Constitution implicitly guarantee the public a qualified right of access to a criminal trial.”).
When the public is improperly excluded from a criminal trial, any transcript or recording of the proceeding must be made available to the public. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592-93, 281 S.E.2d 915, 925 (1981).
In Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (“Press-Enterprise I”), the United States Supreme Court held that the public’s qualified right of access extends to voir dire, noting the long history of public access to jury selection. The Supreme Court of Virginia has cited Press-Enterprise Ifavorably and indicated agreement with its holding. SeeBuchanan v. Commonwealth, 238 Va. 389, 400, 384 S.E.2d 757, 764 (1989) (holding that the trial court did not err in refusing to close voir dire and observing that such closure “would be fraught with problems of a constitutional nature”) (citing Press-Enterprise I). Furthermore, both the Virginia Code and the Rules of the Supreme Court of Virginia contemplate voir dire being public. See Va. Code § 8.01-358 (allowing parties to question the venire about potential prejudice and bias and providing that “A juror, knowing anything relative to a fact in issue, shall disclose the same in open court.”) (emphasis added). See also Va. Sup. Ct. R. 3A:14.1(a)(1) (allowing the trial court to restrict disclosure of juror identification information in criminal cases for good cause sufficient to a warrant departure from “the norm of open proceedings”) (emphasis added).
The Virginia Court of Appeals has held that the public has a constitutional right of access to proceedings on motions to strike the Commonwealth's case-in-chief, to strike all of the evidence at the end of trial, for mistrial, and to voir dire and the selection of jury instructions. See In re Times-World Corp., 7 Va. App. 317, 327, 373 S.E.2d 474, 479 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 528 S.E.2d 458 (2000);see alsoIn re Times-World Corp., 25 Va. App. 405, 413, 488 S.E.2d 677, 681 (Va. Ct. App. 1997) (citing Press-Enterprise I for the proposition that the public’s qualified right of access extends to voir dire).
The Virginia Code provides trial courts with the authority to exclude persons from criminal proceedings whose presence would impair the conduct of a fair trial. See Va. Code § 19.2-266. The statute merely restates the inherent power of a trial court to remove persons from the courtroom who are causing a disturbance or are otherwise disrupting the orderly conduct of a trial. The statute is not a basis for denying public access to a criminal proceeding. Any such denial must comply with the substantive and procedural requirements attend to the public’s qualified right of access. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 591, 281 S.E.2d 915, 924 (1981); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 (1980) (holding that Va. Code § 19.2-266 violates the First Amendment to the extent it is employed to exclude public from criminal trials without regard for the public’s presumptive right of access).
Generally speaking, proceedings in juvenile and domestic relations (“JDR”) courts are not open, with one particularly notable exception: proceedings in cases involving an adult charged with a crime and hearings held on a petition or warrant alleging that a juvenile fourteen years of age or older committed an offense which would be a felony if committed by an adult “shall be open,” and may only be closed “for good cause shown.” See Va. Code § 16.1-302(C). The Virginia Supreme Court has not yet defined good cause under this statute. In practice, the existence of good cause usually turns on whether the party seeking closure or sealing has identified an interest that is not generally applicable but unique to the particular proceeding, and whether the interest can be protected by other reasonable prophylactic measures, such as voir dire or partial closure.