C. Criminal trials
The constitutional presumption of access extends to criminal trials themselves. See United States v. Gonzales, 150 F.3d 1246, 1255 (10th Cir. 1998) (citing Press-Enterprise II, 478 U.S. 1, 13 (1986)). In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion), the Court found that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” (emphasis added). In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602–03 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” (emphasis added). It added that the presumption of public access
[D]oes not mean, however, that for purposes of this inquiry the court cannot protect the minor victim by denying these representatives the opportunity to confront or cross-examine the victim, or by denying them access to sensitive details concerning the victim and the victim’s future testimony. Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences.
Id. at 609 n.25 (emphasis added).
The constitutional presumption of access extends to trials themselves. Newman v. Graddick, 696 F.2d 796, 800 (11th Cir. 1983); see also United States v. Sajous, 749 F. App’x 943, 944 (11th Cir. 2018); see also United States v. Gilmore, No. 3:99-cr-73-J-34TEM, 2009 WL 10697091 at *1 (M.D. Fla. 2009). In Richmond Newspapers, Inc. v. Virginia, the court found that "a presumption of openness inheres in the very nature of a criminal trial under our system of justice." 448 U.S. 555, 573 (1980) (plurality opinion). In Globe Newspaper Co. v. Superior Court, the Supreme Court recognized a First Amendment access right and struck down a statute that required "the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial." 457 U.S. 596, 602-03 (1982). It added that the presumption of public access "does not mean, however, that for purposes of this inquiry the court cannot protect the minor victim by denying them access to sensitive details concerning the victim and the victim’s future testimony.” Id. at 609 n.25. "Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences." Id.
If closure is warranted, the restriction on access must be narrowly drawn with only that part of the proceeding as is necessary closed. Newman, 696 F.2d at 802.
The Supreme Court has recognized that the constitutional presumption of access extends to trials themselves. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion), the Court found that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602‑03 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” It added that the presumption of public access “does not mean, however, that for purposes of this inquiry the court cannot protect the minor victim by denying these representatives the opportunity to confront or cross-examine the victim, or by denying them access to sensitive details concerning the victim and the victim’s future testimony. Such discretion is consistent with the traditional authority of trial judges to conduct in camera conferences.” Id. at 609 n.25.
Consistent with Supreme Court precedent, the First Circuit acknowledges “the public has a First Amendment right of access to criminal trials.” In re Globe Newspaper, 729 F.2d at 51.
Criminal trial proceedings are presumptively open. The right of access to criminal cases, in particular, is grounded in the "importance to the people than the manner in which criminal trials are conducted." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980); see also Globe Newspaper, 457 U.S. at 604–05 (quotations omitted) ("to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that [the] constitutionally protected discussion of governmental affairs is an informed one."). Trials may be closed if closure is narrowly tailored and no less restrictive alternatives exist, for compelling reasons such as witness protection or confidential information. See Pearson v. James, 105 F.3d 828 (2d Cir. 1997); United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991 (1972); United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969), cert. denied, 397 U.S. 957 (1970). In Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) (en banc), for example, the Second Circuit held that limited closure of trial testimony of only the undercover officer in a criminal prosecution was justified by the state’s interest in maintaining effectiveness of the officer's capabilities.
“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 guarantees the press and public a right of access to criminal trials to attend, listen and report. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). The Fifth Circuit has cited Press-Enterprise for the proposition that there is a presumption of openness for a criminal trial, but this can be overcome if there is an overriding interest based on court findings that closure is essential to preserve higher values, and so long as the closure order is narrowly tailored to serve that interest. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006). The court must also consider reasonable alternatives to closure. Id.
In addition to the First Amendment right of the public and press to access a trial, the Sixth Amendment guarantees a defendant the right to a public trial. The Sixth Amendment right to a public proceeding invokes the same considerations raised implicitly in the First Amendment right of the press and public to attend an accused’s trial. Thus, any closure of a public trial over the objections of the defendant must first meet the First Amendment tests set out in Press-Enterprise. United States v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987).
Neither the First Amendment nor Sixth Amendment rights are absolute, however, and must be balanced against other interests that are essential to the administration of justice (and often against each other). United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995).
In order to outweigh the right to a public trial and achieve total closure, (1) a party seeking to close a court proceeding 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 closing the proceeding; and (4) the court must make findings adequate to support closure. Id.
Partial closure (allowing some spectators in the courtroom) does not raise the same concerns that total closure raises since an audience remains to ensure the fairness of the proceedings. Therefore, for partial closure a court must only find a “substantial reason” for the closure. Id.
It is unquestioned that the First Amendment right of access applies to criminal trials. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir. 1983) (discussing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Application of Nat’l Broad. Co., 828 F.2d 340, 343 (6th Cir. 1987) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)).
In a habeas proceeding, the Sixth Circuit in Kelly v. Withrow, 25 F.3d 363 (6th Cir. 1994), found that the state trial court’s denial of a change of venue request did not violate the criminal defendant’s right to a fair trial. In that case, “[t]here was a great deal of media coverage surrounding th[e] case.” Id. at 367. Because of the extensive publicity, “the trial judge took particular pains in dealing with pretrial publicity during voir dire” including asking “each prospective juror about his or her acquaintance with the case,” with additional questions being asked of those who were familiar with at least some of the facts of the case. Id. at 368. Finally, for those jurors who had formed any opinion about the case, “the trial judge exacted an assurance that the person could set his or her opinion aside and decide the case based solely on the evidence and jury instructions.” Id. “A total of forty-four prospective jurors were excused for cause, and each side used all of its peremptory challenges: fifteen by the prosecution and twenty by the defense.” Id.
The Sixth Circuit noted that “[d]ue process does not require that a jury be totally ignorant of the case.” Id. “While there may be some cases in which the Court has held that a trial was ‘utterly corrupted by press coverage,’ thus not requiring any showing of actual prejudice, the circumstances in this case do not rise to the level necessary to create the ‘carnival atmosphere’” necessary to show actual prejudice to the criminal defendant. Id. at 369.
“[L]ong embedded in our case law . . . is the strong presumption that all trial proceedings should be subject to scrutiny by the public.” United States v. Ladd, 218 F.3d 701, 703-704 (7th Cir. 2000); United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985). See United States v. Abu Marzook, 412 F.Supp.2d 913, 925 (N.D. Ill. 2006) (closure of courtroom to protect testimony of Israeli intelligence agents was “justified under the mandates of Press Enterprise”; government “rebutted the presumption of openness based on its showing that the anticipated testimony is classified and governed by CIPA”).
However, “the First Amendment question cannot be resolved solely on the label we give the event, i.e., ‘trial’ or otherwise”; while “there is generally a right of public access to a trial, the public can properly be excluded from conferences between the court and counsel even during a trial.” B.H. v. Ryder, 856 F. Supp. 1285, 1291-92 (N.D. Ill. 1994), aff’d sub. nom. B.H. v. McDonald, 49 F.3d 294 (7th Cir. 1995) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7 (1986)).
Under a policy promulgated and enforced in the Domestic Violence section of the Chicago Municipal Court, members of the public were forbidden to take notes in the courtrooms and were subject to expulsion for doing so. Goldschmidt v. Coco, 413 F. Supp. 2d 949 (N.D. Ill. 2006) held a challenge to that policy stated a claim for violation of the First Amendment: “The right of access to public trials and other court proceedings is required by the First Amendment,” and “[a] prohibition against note-taking is not supportive of the policy favoring informed public discussion; on the contrary it may foster errors in public perception.” Id. at 952-53. Nor could the court policy be justified “on the grounds that domestic violence cases often involve ‘highly emotional parties’, ‘outbursts’, and the disclosure of ‘sensitive information regarding parties and witnesses.’” Id. at 953.
In line with Supreme Court precedent establishing the public’s constitutional right of access to criminal proceedings, the Eighth Circuit has recognized on both First Amendment and Sixth Amendment grounds that criminal trials should generally be open. United States v. Thunder, 438 F.3d 866–67 (8th Cir. 2006). For example, the Eighth Circuit has ruled that closure of the courtroom in a child sex abuse case during testimony of allegedly abused children violated the defendant’s Sixth Amendment right to a public trial where the trial judge failed to hold a hearing or make any findings. Id.
Alabama’s presumption of public access to criminal proceedings also extends to criminal trials. Ex parte Birmingham News Co., 624 So. 2d 1117, 1133 (Ala. Crim. App. 1993) (“we must first recognize that . . . the public and the press have a legally protected interest in access to criminal trial proceedings”).
Courts do, however, have some discretion in deciding whether to clear the courtroom under certain circumstances. Ex parte Judd, 694 So. 2d 1294, 1296 (Ala. 1997). Ala. Code § 12-21-202 provides, in part, that “[i]n all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial.” Ala. Code § 12-21-202. The Supreme Court of Alabama has adopted the Waller v. Georgia test for determining when a courtroom can be closed pursuant to Ala. Code § 12-21-202 without violating the defendant’s constitutional right to a public trial. Id. at 1297; see Waller v. Georgia, 467 U.S. 39, 47–48 (1984) (holding that challenges to court closure brought by a defendant on Sixth Amendment grounds “must meet the tests set out in Press-Enterprise and its predecessors” in the First Amendment context).
The Alabama Supreme Court has cautioned that a total closure of the courtroom may be justified only in the narrowest of circumstances; rather, a partial closure of the proceeding is more often appropriate, which will ordinarily allow members of the press and the families of the victim and the defendant as spectators. Ex parte Judd, 694 So. 2d 1294, 1297 (Ala. 1997); see P.M.M. v. State, 762 So. 2d 384 (Ala. Crim. App. 1999) (closure of the courtroom for the entire trial of a rape, sex abuse, and sodomy case was too broad; the trial court failed to make specific findings to justify total closure). Indeed, the 11th Circuit later determined that the defendant in Judd was entitled to habeus corpus relief for a violation of his Sixth Amendment right to a public trial as a result of the total closure of trial. Judd v. Haley, 250 F.3d 1308, 1319 (11th Cir. 2001).
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 addition to the general right of access to attend criminal trial proceedings, there is also a right to use cameras and electronic devices in doing so, in accordance with Alaska Administrative Rule 50. This is addressed in detail in section XI.B below.
Criminal trials are presumptively open to the public, including members of the media. See Ariz. R. Crim. P. 9.3(b)(1). A court “can close a proceeding at the request of a defendant only when the public proceeding would create a clear and present danger to the defendant’s right to a fair trial with an impartial jury.” KPNX-TV Channel 12 v. Stephens, 236 Ariz. 367, 370, 340 P.3d 1075, 1078 (App. 2014). “If the court finds a clear and present danger, the court must then consider four constitutional factors before closing the proceedings; namely, 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 the court must make findings to support the closure.” Id.
A court may close the proceedings on a limited basis—for example, to protect a victim or minor—upon a showing that the limitation is reasonable and neutral. Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (1994).
The Supreme Court of Arkansas upheld Article 2, § 10, of the Arkansas Constitution, which provides that an accused in a criminal prosecution shall enjoy the right to a speedy and public trial. Commercial Printing Co. v. Lee, 262 Ark. 87, 94, 553 S.W.2d 270, 273 (1977). The court goes further to say that members of the public have an interest in the trial of one charged with a felony, because a crime is a wrong against the public, and affects every citizen. Id.
California recognizes a right to public trial that extends through closing arguments under both the federal and state constitutions. See People v. Woodward, 4 Cal. 4th 376, 382, 841 P.2d 954, 14 Cal. Rptr. 2d 434 (1992). 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). A temporary closure in order to maintain court security may be permissible. Woodward, 4 Cal. 4th at 383-386. 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).
Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial. The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979). In Star Journal, the court held that a “judge may close a pretrial hearing only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.” Id.; see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Whitman, 205 P.3d 371, 379 (Colo. App. 2007) (“It has long been recognized that the public and the press have a qualified First Amendment right to attend a criminal trial.”); 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); see also Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).
The Colorado Supreme Court recently noted “the public’s and the press’s qualified First Amendment rights to attend a criminal trial.” People v. Jones, 2020 CO 45, ¶ 18 (in the course of conducting a Sixth Amendment closure analysis, observing that “while the total exclusion of the press and the public generally amounts to a closure, such closures may be permissible under certain circumstances,” through “these circumstances ‘will be rare’ and ‘the balance of interests must be struck with special care.’”).
In dicta, the Colorado Supreme Court has reiterated that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of “unfettered” access to criminal court records. People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018).
State criminal proceedings are presumed open at all phases and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure. Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.
In federal criminal proceedings—at any stage—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).
District courts in the District of Columbia regularly cite to Richmond Newspapers, Inc. v Virginia, 448 U.S. 555 (1980), affirming that criminal trials are open to the public and media. See, e.g., In re Special Proceedings, 842 F. Supp. 2d 232, 239 (D.D.C. 2012).
One federal district court in D.C. ordered disclosure of wiretap transcripts, which had been prepared by the prosecution as an aid to the jury in a criminal trial, “as soon as practicable after, if not simultaneously with, their presentation to the jury.” United States v. Thompson, 17 Media L. Rep. 1004, 1989 WL 248625 (D.C. Cir. 1989). The D.C. Circuit affirmed, finding that the claims of defendants awaiting trial on related charges and unindicted third parties mentioned in the transcripts did not outweigh the presumption of public access to judicial records. Id.
In the Guantanamo Bay Detainee Litigation, the D.C. district court issued a standing order, outlining procedures for filing documents and holding certain hearings and in camera sessions. In re Guantanamo Bay Detainee Litig., 2009 WL 50155 (D.D.C. 2009).
District of Columbia
In McIntosh v. United States, 933 A.2d 370 (D.C. 2007), the D.C. Court of Appeals reversed a defendant’s criminal conviction because the closure of the courtroom during the testimony of his alleged sex assault victim—“a twelve-year-old girl who suffered from severe social disorders and borderline mental retardation and, in addition, exhibited physical discomfort while speaking in a courtroom setting”—violated the defendant’s Sixth Amendment right to a public trial. Id. at 372. The Court of Appeals held that the trial court “failed to give proper consideration to reasonable alternatives” and failed to “adequately consider other important interests before ordering the courtroom closed.” Id. at 379, 380. But see Tinsley v. United States, 868 A.2d 867, 871-72, 875-80 (D.C. 2005) (upholding trial court’s decision to exclude a criminal defendant’s family and friends from the courtroom during the testimony of a witness who had been stabbed and threatened with regard to her testimony and had become visibly shaken and reticent to testify as a result of their presence).
Typically, courts will apply the Lewis test to any attempt to close a portion of a criminal trial, and the trial should be presumptively open. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1983). The Lewis factors are (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Id. at 6.
Florida Statutes Section 918.16 does provide for only limited access to courtrooms when a person under 16 years of age or a person with an intellectual disability testifies concerning any sex offense. Fla. Stat. § 918.16(1). Similarly, when the victim of a sex offense, regardless of age or mental faculties, testifies regarding the offense, Section 918.16 provides for limited access to the proceeding. Fla. Stat. § 918.16(2). Included among those permitted to attend by the statute are newspaper and broadcast reporters. Fla. Stat. § 918.16(1)-(2). The Florida Supreme Court has held that the statute meets the requirements set forth in Waller. Kovaleski v. State, 103 So. 3d 859, 861 (Fla. 2012). Protecting the victim upon request is a compelling state interest, satisfying the first prong of Waller; partial closure is both narrowly tailored and the most reasonable alternative to total closure, satisfying the second and third prongs; and proper application of the statute to the case satisfies the fourth prong of Waller. Id. Reflecting such determinations in the record will allow for proper appellate review. Id.
The public and press have a presumptive First Amendment right of access to all stages of criminal trials in Georgia, including the trial itself. See Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579 (1996); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 579 (1982) (“The criminal trial itself . . . shall be open to the press and public” and further noting “the extreme importance of the strong presumption favoring the general rule”).
In Oahu Publications v. Ahn, 133 Hawai’i. 482, 331 P.3d 460 (2014), as corrected (Aug. 5, 2014), the Hawaii Supreme Court held that the Hawaii constitution provides “at least as much protection of the right of the public to access criminal trials as has been found by the United States Supreme Court in the First Amendment to the United States Constitution.” Id. at 494, 331 P.3d at 472. The Hawaii Supreme Court noted that it “has recognized a tradition of public access, declaring it ‘firmly embedded in [its] system of jurisprudence’ as a ‘general policy of open trials.’” Id. (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 228, 580 P.2d 49, 54 (1978). The Court stated that courts’ openness “serves as a safeguard of the integrity of our courts” and furthermore that “[t]he corrective influence of public attendance at trials for crime is important to the liberty of the people.” Id. at 495, 331 P.3d at 473 (citing Territory v. Scharsch, 25 Haw. 429, 436 (1920)); see also id. (“The words ‘public trial’ are self-explanatory . . . a public trial is a trial at which the public is free to attend.”).
On the question of procedures that must be observed to protect the right of public access to criminal trials, the Supreme Court noted the right “is not absolute,” id. at 496, 331 P.3d at 474 (quoting Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982)), and, quoting heavily from U.S. Supreme Court and Ninth Circuit opinions articulating the federal constitutional standard, set forth the following rules:
[T]he qualified right of public access provided by the First Amendment and article 1, section 4 can be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819 (emphasis added); Press-Enterprise II, 478 U.S. at 9–10, 106 S.Ct. 2735; see also Globe Newspaper Co., 457 U.S. at 606–07, 102 S.Ct. 2613 (“Where ... the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest”). The trial court must articulate the interest the closure protects, “along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise I, 464 U.S. at 510, 104 S.Ct. 819; Press-Enterprise II, 478 U.S. at 10, 106 S.Ct. 2735.
Additionally, if the court is contemplating whether closure of the courtroom is necessary, it must provide a reasonable opportunity for the public to object. “[T]he press and the general public must be given an opportunity to be heard on the question of their exclusion.” Globe Newspaper Co., 457 U.S. at 609 n. 25, 102 S.Ct. 2613 (citing Gannett Co., 443 U.S. at 401, 99 S.Ct. 2898 (Powell, J., concurring)). The requirement of notice continues to apply when the compelling interest asserted is protection of the defendant’s Sixth Amendment right to a fair trial by an impartial jury. United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir.1982); see also ABC, Inc. v. Stewart, 360 F.3d 90, 95 (2d Cir.2004) (noting that no notice had been provided before closure of voir dire in jury selection); In re S.C. Press Ass’n, 946 F.2d 1037, 1040 (4th Cir.1991).
The United States Supreme Court has not explicated a standard for notice. However, individual notice may be practicable under certain circumstances.
The requirements that must be satisfied by a court in order to overcome the qualified right of the public to access criminal trials may be divided into procedural and substantive elements. Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir.1990). The “procedural prerequisites to entry of an order closing a criminal proceeding to the public [are] (1) those excluded from the proceeding must be afforded a reasonable opportunity to state their objections; and (2) the reasons supporting closure must be articulated in findings.” Brooklier, 685 F.2d at 1167–68. The substantive reasons that must be found and included in the findings are: “(1) [the] closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Oregonian Pub., 920 F.2d at 1466 (citing Press-Enterprise II, 478 U.S. at 13–14, 106 S.Ct. 2735).
Id. at 496–98, 331 P.3d at 474–76.
“The First Amendment right of access is fundamental to criminal trials.” Bradbury, 136 Idaho at 70, 28 P.3d at 1013 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). In State v. Overline, 154 Idaho 214, 296 P.3d 420 (Id. App. Ct. 2013), the Idaho Court of Appeals explicitly recognized that a criminal defendant has a right to a public trial under the Sixth Amendment to the United States Constitution and adopted the procedure set forth in Waller v. Georgia, 467 U.S. 39 (1984), that must be followed before a criminal trial may be closed over a defense objection. Namely, that “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.” Overline, 154 Idaho at 217, 296 P.3d at 423 (citing Waller, 467 U.S. at 48). The court also specifically recognized that “[t]he press and the public also possess, via the First Amendment, an enforceable right to an open and public trial proceeding, which can be foreclosed over their objection only in limited circumstances.” Overline, 154 Idaho at 217 n. 2, 296 P.3d at 423 n.2 (citing Press-Enterprise, 464 U.S. at 509–10 and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982)).
Similarly, Illinois recognizes a presumption of access to criminal trials themselves. “Judicial proceedings in the United States are open to the public – in criminal cases by constitutional command.” A.P. v. M.E.E., 354 Ill. App. 3d at 993, 821 N.E.2d at 1245, 290 Ill. Dec. at 671. In order to curtail public or press access, a court must make the sort of specific findings and follow the same procedure that applies to civil matters, as discussed in that section.
The right of access may extend to the post-trial availability of evidence used during the trial. In People v. Phillips, 36 Media L. Rep. (BNA) 1510 (Ill. Cir. Ct. 2007), the court allowed media outlets to access videotapes of the crime scene and of the defendant’s statement because no suppression request had been made during the trial, and even if one had been made, it would have been denied. See also People v. Goodman, 29 Media L. Rep. (BNA) 1063 (Ill. Cir. Ct. 2000) (public has legitimate and important interest in seeing and hearing videotaped evidence).
The Indiana Constitution protects the right of the accused to a public trial, Art. 1, § 3, although this right is not unlimited. In addition, Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” However, Indiana courts have statutory authority to exclude the public from access to criminal proceedings if they “first afford the parties and the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” Ind. Code § 5-14-2-3.
There is also a First Amendment presumption of access to criminal trials that may be overcome “if a court finds ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997) (citing Waller v. Georgia, 467 U.S. 39, 45 (1984)); see also Kendrick v. State, 670 N.E.2d 369, 370 (Ind. App. 1996) (stating the United States Supreme Court’s analysis for determining whether a courtroom may be closed: “ 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 the interest,  the trial court must consider reasonable alternatives to closing the proceeding,  it must make findings adequate to support the closure.”).
In State v. Dixon, 112 P.3d 883 (Kan. 2005), the Kansas Supreme Court reversed a trial judge’s closure of a courtroom during the announcement of a jury verdict. The defendant was convicted of two murders and other charges in connection with an explosion and fire at an apartment building. The purpose of the courtroom closure was to prevent news of the verdict from reaching jurors who had been selected to sit in a pending, related criminal case.
The Kansas Supreme Court indicated that the process by which the trial judge had decided to close the proceeding complied with standards set in Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501 (1984), observing that “the trial court went to great lengths to articulate the interest to be served by closure as well as its findings on reasonable alternative means.” Dixon, 112 P.3d at 908. The state supreme court also said that closure of proceedings must be consistent with both the First and Sixth amendments. As the court explained:
"Here, the trial court considered the advocated interests and the alternatives. The trial court exercised care in striking a balance of those interests. But the court’s decision was made in response to intervention by area newspapers, whose interests were the First Amendment interests of media freedom. Although defense counsel made a simple statement of objection to closing the courtroom, the Sixth Amendment interest in a public trial seems not to have been pressed. [I]t was [the defendant’s] right to a public trial that is at issue here."
Dixon, 112 P.3d at 910.
The closure, the supreme court held, “was inconsistent with the substantial right of the defendant to a public trial and not harmless error.” Dixon, 112 P.3d at 910.
Note: State v. Dixon was disapproved on other grounds by State v. Wright, 224 P.3d 1159 (Kan. 2010).
In State v. Cox, the defendant challenged “the district court’s decision to clear the courtroom during the testimony of [a medical professional], while her photographs of the victims’ genitalia were displayed and discussed.” State v. Cox, 304 P.3d 327, 332 (Kan. 2013). The victims were two children under the age of 11. But the supreme court ruled that the defendant’s right to a public trial had been violated, reversed the conviction, and remanded the matter for a new trial. The court held that “In evaluating whether the Sixth Amendment right to a public trial has been violated, Kansas courts employ the four-part test set out in Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), which held that the party seeking to close the hearing must advance an overriding interest likely to be prejudiced, that the closure must be no broader than necessary to protect the interest, that the district judge must consider reasonable alternatives to closing the proceeding, and that the judge must make findings adequate to support the closure.” Cox, 304 P.3d at 333.
In Kentucky, the right of access has been held to apply to virtually all aspects of a criminal trial. In Lexington Herald Leader Co. v. Tackett, 601 S.W.2d 905 (Ky. 1980), the Kentucky Supreme Court held that a trial court improperly closed a portion of a criminal trial in which several young boys testified about the defendant allegedly sodomizing them. Where witnesses, “child and adult alike, will be greatly embarrassed and traumatized by testifying publicly . . . this embarrassment and trauma has not been deemed sufficient justification” for closure. Tackett, 601 S.W.2d at 907.
The Louisiana Constitution also 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).
There should be no different standards for access to trial than for access to pre-trial hearings. See the “Pretrial Proceedings” section above.
The Maine Supreme Court followed Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n. 18 (1980) in observing that the trial judge may:
[I]n the interest of the fair administration of justice impose reasonable limitations on access to a trial, and the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the opportunities for the communication of thought and discussion of public questions immemorially associated with resort to public places.
Roberts, 2014 ME 125 ¶ 30 (punctuation and brackets omitted) (abrogated on other grounds). “Where there is an articulable risk of witness intimidation or courtroom disruption, or some other comparable reason, the imposition of conditions on entry to the courtroom is permissible so long as the conditions are ‘no broader than needed to accomplish their purpose.’” Id.
The court held that the trial judge may prohibit members of the public from entering the courtroom during witness testimony where spectators had created an “ongoing problem” by engaging in distracting behavior; members of the public who had arrived on time were permitted to remain. Roberts, 2014 ME 125 ¶ 33. The trial court had raised with counsel concern over spectators’ behavior at least twice and had addressed the spectators directly about their conduct. Id. Only when those measures proved ineffective did the court resort to restricting courtroom access. Id. Under the circumstances, the limitations on access imposed by the trial court “constituted a reasonable exercise of its power to control the proceedings and did not amount to a closure of constitutional dimensions.” Id. The court has also suggested that it would have been proper to prohibit members of the public from entering the courtroom while the court instructed the jury, if similar conditions were met. Id. n. 5.
The court reviewed a trial judge’s finding of fact that courthouse doors were not locked when a jury returned its verdict for “clear error.” Roberts, 2014 ME 125 ¶ 34. The court affirmed that finding on the basis that ample evidence supported the trial court’s finding. Id. ¶ 35. The court has since mentioned in dicta that “[e]ven if the courtroom doors were locked during a brief portion of [a] trial, that fact, by itself, would not necessarily constitute a violation of [the defendant’s] — or the public’s — constitutional rights requiring a new trial.” State v. Dupont, 2016 ME 84, ¶ 4, n.4, 141 A.3d 1119.
In another case involving the exclusion of a disruptive spectator from a criminal trial, the court found that the trial court had not erred in excluding the spectator where the court “made an effort to balance those interests and engaged in an escalating series of responses to the distraction.” State v. Frisbee, 2016 ME 83, ¶ 25.
The court considered alternatives to exclusion of the spectator, such as moving the spectator to a different spot in the courtroom and having him go through security screening before entering the courtroom. After learning more information regarding the seriousness of the potential distraction for defense counsel and juror 116, however, the court concluded that those alternatives would not be sufficient to protect the right to effective assistance of counsel and to trial before a nondistracted jury, and the court appropriately excluded the individual.
Id. The court also suggested that appellate review of trial court decisions to partial closure cases is deferential:
Because the trial court is in the best position to evaluate the nature and effect of a distraction in the courtroom, the court has broad discretion to fashion a remedy when the court has determined that a spectator is disruptive or distracting during any aspect of a trial. The process employed here, including the entry of specific findings regarding the nature and significance of the distraction, the attempts at less restrictive alternatives to exclusion, the consultation with counsel, the voir dire of the jurors, and the additional security screening, demonstrates that substantial interests were at stake and that the court used “special care” in balancing those interests. The court acted well within its authority when it ultimately excluded the spectator from any further proceedings and did not violate the United States or Maine Constitutions in selecting this remedy.
Id. ¶ 26.
The Maryland courts have recognized that the public right of access to criminal trials applies to every stage of the criminal trial, from voir dire and jury selection, through jury deliberation. Watters v. State, 612 A.2d 1288 (Md. 1992) (exclusion of public from courtroom during voir dire and jury selection in murder trial, including defendant’s family and the press, without the knowledge or consent of the parties or the trial judge, violated the defendant’s Sixth Amendment right to a public trial, requiring new trial); see id. at 1291 (“[W]hether objection to closure is made by the defendant or the press, the public may only be constitutionally excluded from a trial, including voir dire, pursuant to a narrowly tailored order necessary to protect an overriding state interest.”); Hearst Corp. v. State, 484 A.2d 292, 294 (Md. Ct. Spec. App. 1984) (“the press may intervene . . . for the limited purpose of asserting First Amendment rights,” even when such intervention occurs after the jury has retired to deliberate); id. (emphasizing that the “right of intervention” is “not curtailed by the posture of the trial”); Erman v. State, 434 A.2d 1030, 1046–47 (Md. Ct. Spec. App. 1981) (affirming denial of defendant’s request for private trial where trial court had “applied a lesser alternative by engaging in sanitizing voir dire examination in which prospective jurors indicated they could ignore media accounts during the trial” and had warned jurors against reading or watching any news reports concerning the trial).
As the Court of Special Appeals noted in Hearst Corp. v. State, “Simply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage.” 484 A.2d at 294–95; see also Baltimore Sun v. Thanos, 607 A.2d 565, 567–68 (Md. Ct. Spec. App. 1992) (allowing press to intervene to seek access to a presentence report entered into evidence during the penalty phase of a death penalty case, and remanding to the trial court for a determination of whether the government’s interests in the confidentiality of such reports outweighed the public’s right of access). But see Walker v. State, 723 A.2d 922, 932 (Md. 1999) (noting that “prophylactic measures, including closure, may be warranted under some circumstances . . . to maintain order, to preserve the dignity of the court, and to meet the State’s interests in safeguarding witnesses and protecting confidentiality” (citations omitted)).
Massachusetts, following Supreme Court precedent, recognizes a general right of public access to criminal trials. See, e.g., Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 603 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)).
In Commonwealth v. Clark, 730 N.E.2d 872, 881–82 (Mass. 2000), the court held that the presence of electronic media in the courtroom did not impair the fairness of the defendant’s trial, even where witnesses and jurors were sequestered.
The Minnesota Supreme Court has acknowledged that criminal trials are open to the public. See, e.g., State v. Fageroos, 531 N.W.2d 199, 201 (Minn. 1995). Generally, a party seeking the closure of a criminal trial must advance an “overriding interest” that is likely to be prejudiced if the trial remains open. Id. at 201–02 (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)). The Minnesota Supreme Court has held that safeguarding the physical and psychological well-being of a minor child is an “overriding interest” that can justify the closure of a criminal trial. Id. at 202 (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)). At the same time, the court has noted that “[a]lthough protection of minor victims of sexual offenses constitutes a compelling interest, it does not justify closure of the courtroom each and every time a minor testifies.” Id. Instead, trial courts should evaluate the circumstances on a case-by-case basis and should consider several factors, including the minor’s age, psychological maturity, the nature of the crime, etc. Id. (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–08 (1982)).
The Mississippi Constitution affords the accused the right to a public trial, but explicitly authorizes the exclusion of the public in certain instances. Article 3, § 26 states that “in prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.” Id. (emphasis added).
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).
No Nebraska law addresses closing all or a portion of a criminal trial to the public. The Nebraska Guidelines contemplate the possibility that some portion of a trial at which the voluntariness of a confession or the suppression of evidence will be decided may be closed, but the author is not aware of that happening. See Neb. S. Ct. R. Sec. 6-602(A).
Consistent with federal and state constitutional rights, U.S. Const. amend. VI; N.M. Const. art. II, § 14, New Mexico statutes require all courtroom proceedings to be open to the public unless otherwise provided by law. NMSA 1978, § 34-1-1 (1851) (“Except as provided in the Children's Code [32A-1-1 NMSA 1978] and in other laws making specific provisions for exclusion of the public, all courts of this state shall be held openly and publicly, and all persons whatsoever shall be freely admitted to the courts and permitted to remain so long as they shall observe good order and decorum.”).
The Committee Commentary for Rule 5-124 NMRA sets forth the procedures:
“The prerequisites to a courtroom closure order . . . are taken from State v. Turrietta, 2013-NMSC-036, ¶¶ 17, 19, 308 P.3d 964, which provides that the court cannot order a full or partial closure of the courtroom unless the closure is warranted under the four-factor “overriding interest” standard set forth in Waller v. Georgia, 467 U.S. 39 (1984). Under Waller,
(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the district court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure.”
As in civil proceedings, the courts must consider reasonable alternatives to closure. Id. (“For example, if the alleged overriding interest is the potential for witness intimidation, reasonable alternatives to closure might include ‘screening observers, admonishing spectators of possible criminal sanctions, the wait-and-see method, or increased security in the courtroom.’”).
In 1982, the New Mexico Supreme Court held in State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303, that when restrictions on media coverage are sought for criminal trials, proponents of the ban must specify reasons for and show cause for such a limitation. Kaufman determined that in deciding to impose restrictions on media coverage of a criminal prosecution, the trial court must weigh competing interests of the defendant and the public to determine if the limitation sought would be effective in protecting the interests threatened and if it would be the least restrictive means available. Further, Kaufman held that the court is charged with the duty of considering all reasonable alternatives to limiting media coverage.
Finally, the court’s consideration of these issues should be in the court record and some minimum form of notice should be provided to the media before restrictions are placed to their access of a criminal prosecution. The court noted that this notice should take place at a hearing, where those present have the opportunity to object. Id. ¶ 20 (citing N.M. Const. art. II, § 17; U.S. Const. amends. I, VI).
North Carolina courts appear to follow U.S. Supreme Court precedent on the public’s right of access to judicial proceedings in criminal cases: while the state recognizes a presumptive right of access, the right is not absolute. See State v. Lemons, 348 N.C. 335, 349-50 (1998), vac’d on other grounds by Lemons v. North Carolina, 527 U.S. 1018 (1999). Instead, it “is subject to reasonable limitations [by the trial court] imposed in the interest of the fair administration of justice or for other compelling public purposes.” Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 476 (1999). Under the North Carolina Criminal Procedure Act, for example, “[t]he presiding judge may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present.” N.C.G.S. 15A-1034(a). See also State v. Burney, 502 N.C. 529, 533-38 (1981) (trial court did not err when it restricted courtroom access to members of certain identifiable groups, for only a short portion of the overall proceeding, during the testimony of a seven-year-old rape victim).
See also State v. McDougald, 38 N.C. App. 244, 259 (1978) (in camera proceedings) (when presence of reporters will not prejudice either party, trial court may in its discretion allow presence of reporters during conferences in chambers; this represents "a practical accommodation of the public's interest in knowing the workings of its court system and the interests of the press under the First Amendment").
There is no North Dakota authority providing for the closure of a criminal trial. The closure framework of N.D.C.C. § 29-07-14 is limited to preliminary proceedings. In State v. Rueb, 249 N.W.2d 506 (N.D. 1976), the North Dakota Supreme Court stated, “Our Constitution provides for public trials and the public’s right to know has been engrafted on our system of government by appropriate laws.”
The Ohio Supreme Court has ruled the public has a “qualified right of access … to those hearings and proceedings in all courts which have historically been open to the public, and in which public access plays a significant positive role.” In re T.R., 556 N.E.2d 439, 446 (Ohio 1990). Ohio recognizes this access comes not only from the First Amendment and Open Courts provision of the Ohio Constitution but also as part of the criminal defendant’s right to a public trial. State ex rel. The Repository v. Unger, 504 N.E.2d 37, 39–40 (Ohio 1986); see also State ex rel. Beacon Journal Publ’g Co. v. Kainrad, 348 N.E.2d 695 (Ohio 1976) (trial testimony); State ex rel. Cincinnati Enquirer v. Bronson, 945 N.E.2d 551 (Ohio Ct. App. 2010) (jury view of crime scene). This does not extend to all phases of the courtroom including “grand jury hearings, petit jury deliberations, conferences in chambers, the issuance of search warrants, and the conferences of collegial courts.” In re T.R., 556 N.E.2d at 447. Moreover, the Rules of Superintendence for the Courts of Ohio require the judge to “inform victims and witnesses of their right to object to being filmed, videotaped, recorded or photographed.” Sup.R. 12(C)(2). This does not automatically ban recording or photographing witnesses; rather, “all parties affected must have the opportunity to respond to the possibility of any restriction, and any finding must be based upon evidence in the record.” State ex rel. Dispatch Printing Co. v. Geer, 873 N.E.2d 314, 319 (Ohio 2007).
Although recognizing the principles of Richmond Newspapers, decisions of trial courts have been upheld in closing the trial to the public during the testimony of minor victims of sexual offenses, see, e.g., Reeves v. State, 1991 OK CR 101, 818 P.2d 495; Davis v. State, 1986 OK CR 148, 728 P.2d 846. But see Shipman v. State, 1982 OK CR 3, 639 P.2d 1248 (no error in refusing to close courtroom to public during testimony of defense witness to prevent alleged harassment of witness).
In Oregon, access to criminal trials is protected by Article I, section 10 of the Oregon Constitution. Oregon courts have held that this protection applies even during the testimony of a minor victim in a sex offense trial. State v. Bowers, 58 Or. App. 1, 646 P.2d 1354 (1982); see also Globe Newspaper Co., 457 U.S. 596 (1982) (holding that mandatory court closure for rape trials with minor victims violates the First Amendment, where case-by-case closure decisions could satisfy state interests). In Oregon, all judicial proceedings are open, with the exception of jury deliberations and “conferences of collegial courts.” State ex rel Oregonian Pub. Co. v. Deiz, 289 Or. 277, 284-85, 613 P.2d 23 (1980). However, courts may control access “by members of the press or public who would attempt to interfere in the proceedings or otherwise obstruct the proceedings.” Id.
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)).
“It is undisputed that the press and the public have a constitutional right of access to attend criminal trials.” Providence Journal Co. v. Superior Court, 593 A.2d 446, 448 (R.I. 1991) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)) (reversing trial justice’s order for closure of individual voir dire examination of prospective jurors to the press and public because he failed to make factual findings on the record to justify such closure). In a criminal case, “[a]ccess may be denied when such denial is narrowly tailored to serve a compelling government interest.” Id. at 1135 (quoting Globe Newspaper Co., 457 U.S. at 606-07 (1982)).
Although access to criminal trials and hearings are not procedurally different from civil cases in South Carolina, occasionally defendants, prosecutors, and judges may seek courtroom closure as a way to prevent pretrial publicity, which (in theory) could poison a jury pool and harm a defendant’s Sixth Amendment right to a trial by an impartial jury. A judge may close a courtroom “only if specific findings [by the court] are made that (1) there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity, (2) there is substantial probability that closure would prevent that prejudice, and (3) reasonable alternatives to closure would protect the defendant’s rights.” Ex Parte Hearst-Argyle Television, Inc., 631 S.E.2d 86, 90, 369 S.C. 69 (S.C. 2006) (citing In re S.C. Press Ass’n, 946 F.2d 1037, 1041 (4th Cir. 1991); In re Charlotte Observer, 882 F.2d at 853 (4th Cir. 1989)).
The Court of Criminal Appeals has recognized that the public and media have a right to attend criminal court proceedings under the Texas Constitution and Texas law. See Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933–34 (Tex. Crim. App. 1982) (en banc). The Texas Constitution provides that “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.” Tex. Const. art. I, § 8. Further, the Texas Constitution, similar to the federal Constitution, protects a defendant’s right to a “speedy public trial.” Tex. Const. art. I, § 10 (emphasis added). Accordingly, Article 1.24 of the Texas Code of Criminal Procedure, which requires proceedings and trials in all courts to be public, manifests “a lasting expression of the legislative will . . . that a right of access to ‘proceedings and trials in all courts’ in the public in general and the press in particular prevails.” Shaver, 630 S.W.2d at 932; see also Tex. Code Crim. Proc. Ann. art. 1.24 (“The proceedings and trials in all courts shall be public.”).
Trial courts are “without power to prohibit the publication of testimony presented during the trial of a criminal case.” Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 (Tex. 1992) (citing Ex parte Foster, 71 S.W. 593 (Tex. Crim App. 1903)). Thus, it was improper for a court to exclude the public from a hearing that took place during the course of trial. See Shaver, 630 S.W.2d 927 (conducting part of a hearing in camera during a trial violated the public’s right of access). It was similarly improper for a court to exclude the public from voir dire proceedings at the outset of trial absent a sufficient articulation of a consideration outweighing the public’s right of access. See Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (collecting U.S. Supreme Court cases and permitting court access to voir dire proceedings and similarly applying constitutional protections to voir dire).
The Vermont Rules of Criminal Procedure require that “[a]ll trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom.” V.R.Cr.P. Rule 56(b); see also Sunday v. Stratton Corp., 136 Vt. 293, 306, 390 A.2d 398, 405 (Vt. 1978) (“the general rule is that trials should be public, with chamber proceedings the exception rather than the rule); State v. Mecier, 145 Vt. 173, 185, 488 A.2d 737, 745 (Vt. 1984) (noting that Rule 56 requires that a trial be held in open court).
“[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.
Both the public and criminal defendants have a constitutional right to public criminal trial proceedings. State v. Easterling, 157 Wn.2d 167, 137 P.3d 825, 828 (2006). This right does not extend to a jury’s rehearing of evidence during deliberations. See State v. Magnano, 181 Wash. App. 689, 326 P.3d 845 (2014).
A restriction on access to a criminal trial requires the court to conduct a Bone-Club/Ishikawa analysis. A failure to perform a Bone-Club/Ishikawa analysis can amount to constitutional error requiring reversal of criminal convictions or a new trial. See, e.g., State v. Frawley, 181 Wn.2d 452, 460, 467, 469, 334 P.3d 1022 (2014) (in-chambers questioning of prospective jurors without performing Bone-Club analysis required reversal). But see State v. Schierman, 192 Wn.2d 577, 438 P.3d 1063 (2018) (holding as a matter of first impression that defendant’s absence from arguments and rulings on for-cause juror challenges was de minimis violation of public trial right that did not require reversal of his conviction and sentence) (lead opinion).
Washington courts have applied the “experience and logic” test when considering whether in camera proceedings should be open or closed. See, e.g., State v. Miller, 179 Wash. App. 91 (2014).
There is a constitutional right to attend criminal trials based on article III, section 17 of the West Virginia Constitution, the open courts provision. State ex rel. Garden State Newspapers, Inc. v. Hoke, 520 S.Ed.2d 186, 190 (1999) (citing State ex rel. Herald Mail Co. v. Hamilton, 267 S.Ed.2d 544, 165 W.Va. 103 (1980)). However, there can be limits on access when balanced against a defendant’s right to a fair trial. State v. Bowling, 753 S.E.2d 27, 232 W.Va. 529 (2013), cert. denied, 572 U.S. 1039.
See State v. Vanness, 2007 WI App 195, ¶ 17, 304 Wis. 2d 692, 738 N.W.2d 154 (locking courthouse after business hours violated defendant’s right to a public trial):
The public was denied access to the trial during both Vanness’s defense and the State’s rebuttal, including testimony from two new witnesses. Like the announcement of the verdict, we conclude the accused’s response to the accusations against him or her, and the state’s rebuttal are critical proceedings in criminal trials. Therefore, the closure was not a trivial violation. Consequently, because Vanness’s constitutional right to a public trial was violated, the order and judgment are reversed and the matter is remanded for a new trial.
See State ex rel. LaCrosse Tribune v. Circuit Court, 115 Wis. 2d 220, 232–33, 340 N.W.3d 460 (Wis. 1983) (ruling that in camera voir dire of venire panel members in criminal prosecution constituted an abuse of discretion):
The term, “sitting of a court,” is a broad term, which this court ought to interpret in accordance with the clear and express legislative policy that courts are to be open to all the people. The fact that the court sits in the judge’s chambers, rather than in a courtroom, is irrelevant to whether or not it constitutes a sitting of a court. … Clearly, the venue or locale of the proceedings cannot legitimately transform what is otherwise required to be an open court proceeding into a closed-chamber procedure with the public and the press excluded.
Looking then at the plain language of the statute, we conclude that it is the public policy of this state that a sitting of a court which encompasses the voir dire procedure is presumptively to be open to the public.
See State v. Ndina, 2009 WI 21, ¶¶ 80, 86–87, 315 Wis. 2d 653, 761 N.W.2d 612 (ruling that the trial court did not abuse its discretion by sequestering defendant’s family members during trial):
In the present case, however, the defendant’s family members posed a threat to the circuit court’s sequestration order that the circuit court could not observe or control. It would have been difficult if not impossible for the circuit court to determine which family members were likely to convey the contents of witness testimony to any of the numerous other family members listed as potential witnesses.
Although we acknowledge that the circuit court’s findings on the record are limited and no hearing was held, we nevertheless conclude that the record is sufficient to support the closure order. The closure was narrowly tailored to serve an overriding interest likely to be prejudiced unless the family members were excluded.
For the reasons set forth, we conclude that the circuit court did not violate the defendant’s Sixth Amendment right to a public trial.