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C. Criminal trials


  • 10th Circuit

    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).

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  • 2nd Circuit

    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.

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  • 4th Circuit

    “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).

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  • 5th Circuit

    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 (and often each other) that are essential to the administration of justice. 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. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995).

    Partial closure (allowing some spectators in the courtroom) does not raise the same concerns that total closure raises since 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.

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  • 7th Circuit

    “[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.

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  • Alabama

    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).

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  • Arizona

    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).

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  • Arkansas

    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.

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  • Georgia

    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”).

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  • Kansas

    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.

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  • Mississippi

    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).

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  • Nevada

    The Nevada Supreme Court has recognized that the First Amendment presumption of public access applies to juror questionnaires used in the jury selection process.  Stephens Media, LLC v. Eighth Judicial Dist. Court, 125 Nev. 849, 855, 221 P.3d 1240, 1245 (2009).

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  • New Mexico

    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).

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  • Pennsylvania

    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)).

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  • Virginia

    “[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.

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  • Wisconsin

    See State v. Vanness, 2007 WI AP 195, 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 for LaCrosse County, 115 Wis. 2d 220, 340 N.W.3d 460 (Wis. 1983) (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, 315 Wis. 2d 653, 761 N.W.2d 612 (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.

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