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D. Post-trial proceedings

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  • 10th Circuit

    The Tenth Circuit has not definitively addressed whether the qualified constitutional right to attend criminal trials extends to post-trial proceedings. But see United States v. Gonzales, 150 F.3d 1246, 1257 n.15 (10th Cir. 1998) (noting another jurisdiction extended the right to post-trial proceedings).

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  • 2nd Circuit

    A party seeking closure must also make a showing that there is a compelling interest to close post-trial proceedings.  See United States v. Doe, 356 Fed. App'x 488 (2d Cir. 2009). In Doe, the trial court refused to seal defendant’s sentencing hearing transcript. The Second Circuit affirmed, holding that the lower court correctly established that the public’s right of access imposes a high burden on the party moving to seal and requires four steps: (1) specific, on-the-record findings of "substantial probability of prejudice to a compelling interest”" that closure would prevent; (2) consideration of alternatives to closure; (3) balancing the risk of prejudice against First Amendment right of access; (4) ensuring closure is narrowly tailored to protect against prejudice.  See also United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings.").

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  • 4th Circuit

    The public has a First Amendment right of access to sentencing hearings. In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986).

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  • 5th Circuit

    The “public and press have a First Amendment right of access to sentencing proceedings.” In re Hearst Newspapers, L.L.C., 841 F.3d 168, 176–77 (5th Cir. 2011). The Fifth Circuit reasoned that the rule especially makes sense in the context of a guilty plea. Id. at 177. Because a trial occurs in only a small fraction of criminal cases, it would not make sense to recognize public access for a trial but not the sentencing phase. Id.

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  • 7th Circuit

    The Seventh Circuit has held that First Amendment protections attach to sentencing hearings, in particular, those portions of a sentencing hearing that involve a defendant’s motion for “downward departure,” reasoning that the “‘public has a strong First Amendment claim to access [ ] evidence admitted in a public sentencing hearing.’” United States v. Eppinger, 49 F.3d 1244, 1250-51, 1253 (7th Cir. 1995). The “public must have the opportunity to observe and criticize the judiciary in the operation of its duties. In sentencing, it is the distinct province of the court to determine what constitutes [a] proper sentence.” Id. at 1253 (citations omitted).  Cf. United States v. Corbitt, 879 F.2d 224, 229 (7th Cir. 1989) (“Whether or not the public and the press have a first amendment right of access to sentencing hearings, we must determine independently whether there is a right to disclosure of presentence reports submitted at such hearings”). See also United States v. Sonin, 167 F.Supp.3d 971, 978-79, 44 Media L. Rep. 1641 (E.D. Wis. 2016) (while “a First Amendment right of access attached to a portion of a sentencing hearing that involved the defendant’s cooperation with authorities,” media intervenor’s access right “must yield in this case to protect both the defendants’ privacy interests”—including possible retribution for their cooperation—“as well as the government’s interest in the disclosure of sensitive information[.]”  Moreover, “sealing only the portion of the sentencing hearings related to cooperation is narrowly tailored to protect the interests of the parties. . . . Following the closed portion of the hearings, the Court will sentence the defendants in open court and provide detailed reasons to support each sentence”).

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  • 8th Circuit

    The Eighth Circuit has extended the Sixth Amendment right to a public trial to sentencing hearings, though this right is not absolute. See United States v. Thompson, 713 F.3d 388 (8th Cir. 2013). This finding suggests that the Eighth Circuit would similarly recognize a First Amendment right of access to sentencing hearings since the court came to its conclusion after applying the same Press-Enterprise II test used to assess whether a First Amendment right of access exists. Id. at 393–94. The court concluded that such a right of access does exist, finding that sentencings have historically been open to the public and that public access plays a significant positive role in its functioning. Id.

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  • Alabama

    We know of no statutory or case law authority relating specifically to public access to criminal post-trial proceedings; however, the presumption of openness under Rule 9.3(b) of the Alabama Rules of Criminal Procedure would apply.

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  • Arizona

    No reported decisions.

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  • Arkansas

    The United States Court of Appeals for the Eighth Circuit held that there is a Sixth Amendment right to insist on public access at sentencing hearings. U.S. v. Thompson, 713 F.3d 388, 393–94 (8th Cir. 2013). The court stated that it was clearly established that the public trial right extended beyond actual proof at trial and could be invoked by the press and the public under the First Amendment, or the accused under the Sixth Amendment. Id. at 392 (citing Waller v. Georgia, 467 U.S. 39, 45 (1984); Presley v. Georgia, 558 U.S. 209 (2010) (per curiam)).

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  • California

    In NBC Subsidiary (KNBC-TV) v. Superior Court, the California Supreme Court held that all “substantive” proceedings in California court are presumptively open. 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).

    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 to seal 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. People v. Woodward, 4 Cal. 4th 376, 383-386, 841 P.2d 954, 14 Cal. Rptr. 2d 434 (1992). 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, 1068-70, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

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  • Colorado

    Colorado case law is not well developed on the constitutional or common law right of access to post-trial criminal proceedings.

    Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has stated that “[t]he press has, therefore, a fundamental right to attend any court proceeding, which is open to the public.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030–31 (Colo. 1979). The Star Journal case concerned pretrial proceedings, and 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”); 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).

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  • District of Columbia

    The federal District Court in D.C. has recognized that “[t]he right of access is not limited to the criminal trial itself, but extends to many pre- and post-trial documents and proceedings.”  In re Special Proceedings, 842 F. Supp. 2d 232, 239 (D.D.C. 2012) (holding that court-commissioned report on prosecutorial misconduct during the trial of Ted Stevens would be released to the public).  The D.C. Court of Appeals has similarly suggested that the general right of access to criminal proceedings applies to post-trial proceedings as well.  Cf. Mokhiber v. Davis, 537 A.2d 1100, 1106 (D.C. 1988) (citing Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) while recognizing the right to access courts, and noting the case held that the “constitutional right of access applies to pretrial, trial, and post-trial proceedings”) (emphasis added)).

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  • Florida

    The Lewis test and procedural requirements are equally applicable to an attempted closure of a sentencing hearing. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1983); Palm Beach Newspapers Inc. v. Cook, 434 So. 2d 355, 358 (Fla. Dist. Ct. App. 1983). Similarly, closure of an arraignment and sentencing of a defendant who pled guilty must also be evaluated using the Lewis test. Palm Beach Newspapers, Inc. v. Nourse, 413 So. 2d 467, 469 (Fla. Dist. Ct. App. 1982).

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  • Georgia

    In Georgia, all stages of criminal trials are presumed to be public, including post-trial proceedings. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578–79 (1982).

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  • Idaho

    There are no reported Idaho decisions addressing access to post-trial proceedings.  It is presumed that any attempt to close such proceedings must follow the procedural and substantive requirements of Press-Enterprise.

    In Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012), the Ninth Circuit reversed and remanded an Idaho District Court’s denial of a media coalition’s request for a preliminary injunction for access to all phases of the execution process in regards to a fast-approaching execution.  The initial 20 minutes of the execution process occurred behind a pulled curtain preventing all gathered witnesses from viewing the entire execution process.  Relying on Cal. First Amendment Coal. v. Woodford, 299 F.3d 868 (9th Cir. 2012), the media group argued that they had a Fist Amendment right to view the entire execution process.  The Ninth Circuit agreed, finding that First Amendment rights attached to the rights to view the process in its entirety.  Otter, 682 F.3d at 825–26.

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  • Indiana

    Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Nothing in the statute indicates that “[c]riminal proceedings” does not include post-trial proceedings. See also Ind. Code § 35-38-9-10(i) (stating that expungement hearings are open).

    The Indiana Constitution provides the accused in a criminal case the right to a public trial, which may include post-trial proceedings. Ind. Const. Art. 1 § 13. “In addition to the rights of the defendant, the public trial implicates the First Amendment right of the press and public to attend a criminal trial, or other proceeding.” Williams v. State, 690 N.E.2d 162, 167–68 (1997) (citations omitted) (emphasis added). But see State ex. rel. Post-Tribune Pub’g Co. v. Superior Ct., 412 N.E.2d 748, 750 (Ind. 1980) (“A ‘trial’ for [constitutional] purposes is considered to be the actual trial by jury upon the issue of guilt or innocence.”). In Post-Tribune Publishing, the Indiana Supreme Court took “the same stance” as the United States Supreme Court that the public and the press have a First Amendment right to access pre-trial proceedings. Post-Tribune Publ’g, 412 N.E.2d at 410. Indiana courts have not addressed whether there is also a First Amendment right to post-trial proceedings, but it is possible that they would apply the same analysis.

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  • Iowa

    The Iowa Supreme Court has not decided whether the First Amendment right to access attaches to a post-trial hearing. State v. Knox, 464 N.W.2d 445, 447 n.1 (Iowa 1990) (noting that because the parties assumed that the First Amendment right of access attached to the post-trial proceeding, the Supreme Court did not make a determination in Knox). However, the court stated that it would apply the “experience and logic” test to determine if a right to access attaches to a certain proceeding. See id. (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605–06 (1982); Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142 (1988)).

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  • Kansas

    In 1980, in Stephens v. Van Arsdale, 608 P.2d 972, the Kansas Supreme Court concluded that the presumption of openness includes proceedings that follow a trial.  The state supreme court said that the public and the media “are free to attend the original trial or the sentencing hearing or any post-judgment hearings.”  Van Arsdale, 608 P.2d at 985.  The court said that open post-trial proceedings include a hearing before a judge on whether to expunge a defendant’s criminal conviction from court records.  Van Arsdale, 608 P.2d at 985.

    In 1981, in Kansas City Star Co. v. Fossey, 630 P.2d 1176, when the Kansas Supreme Court adopted American Bar Association Standards on fair trials, it extended the presumption of openness “‘to every phase of judicial proceedings in a criminal case.’” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).

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  • Kentucky

    The right of access applies to post-trial proceedings in the same manner as pre-trial proceedings and trials.  Riley v. Gibson, 338 S.W.3d 230, 234 (Ky. 2011) (applying right of access to contempt hearing involving juror after conclusion of criminal trial).

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  • Louisiana

    The Louisiana Constitution’s Open Courts provision is not limited to trial or pre-trial matters. Article 1, § 22 states: “All courts shall be open.”

    There should be no different standards for access to post-trial matters than for access to pre-trial hearings. See the “Pretrial Proceedings” section above.

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  • Maine

    No Maine cases address attempts to close post-trial proceedings.

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  • Maryland

    Maryland courts have not had occasion to address whether the public right of access to criminal trials extends to post-trial proceedings. But see Baltimore Sun v. Thanos, 607 A.2d 565, 568 (Md. Ct. Spec. App. 1992) (First Amendment right of access to record admitted into evidence during penalty phase); Hearst Corp. v. State, 484 A.2d 292, 294–95 (Md. Ct. Spec. App. 1984) (“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.”).

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  • Massachusetts

    There is a general presumption of openness to postverdict criminal proceedings. See Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985)) (“Although the Supreme Court has not ruled on the public’s right of access to postverdict proceedings, the principles expressed in the [caselaw] indicate that the public has a right of access to a hearing on a motion for a new trial and to any similar postconviction proceeding.”).

    When considering whether a constitutional presumption of access applies to particular proceedings or records, Massachusetts courts apply the Press-Enterprise “logic and experience test” set forth above.

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  • Minnesota

    Although Minnesota courts have not directly addressed whether the public and the press have a right to attend all post-trial proceedings in criminal cases, in Mankato Free Press Co. v. Dempsey, 581 N.W.2d 311, 312 (Minn. 1998), the Minnesota Supreme Court held that the press should be granted access to post-trial Schwartz hearings. In Minnesota courts, a Schwartz hearing is used when the parties dispute jury impartiality; during a Schwartz hearing, the jurors are examined on the record in the presence of counsel of all parties. Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301, 303 (Minn. 1960).

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  • Mississippi

    The Fifth Circuit has recognized a right of access to post-trial proceedings.  In re Hearst Newspapers, L.L.C., 641 F.3d 168, 176 (5th Cir. 2011) (“We conclude, as have the other courts that have considered this question, that the public and press have a First Amendment right of access to sentencing proceedings.”).

    The Mississippi Supreme Court has likewise held that the press has a right of access to sentencing hearings. In re WLBT, Inc., 905 So. 2d 1196 (Miss. 2005).

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  • Montana

    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).

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  • Nevada

    No relevant authority.

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  • New Hampshire

    The right of access granted by the state constitution and the common law applies to criminal proceedings, including post-trial proceedings. See “Access to criminal proceedings/In general” above; see also State v. Kibby, 170 N.H. 255 (2017) (after defendant pled guilty to seven indictments, presumption of openness applied to the record, all pleadings filed, and all orders issued involving the defendant’s correspondence with the court and his counsel’s motion to withdraw, including the correspondence itself).

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  • New Mexico

    The New Mexico courts have not addressed the right of access to post-trial proceedings, though pursuant to Rule 5-124 NMRA—which deems all courts of New Mexico open to the public save for those statutorily excluded—it appears that post-trial proceedings must be open. “This statute reflects the general premise that the courts operate in a forum of full disclosure, and barring exceptional circumstances, hearings in chambers are to be avoided.” N.M. Att'y Gen. Op. 72-34 (1972). Further, it is likely that the media must be provided notice of any attempt to limit their right to attend a post-trial hearing. See State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 20, 98 N.M. 261, 265, 648 P.2d 300, 304 (holding that the media must be provided notice of any attempt to limit their right to attend a hearing).

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  • North Dakota

    There is no statute or case law in North Dakota disturbing or altering the overall policy of openness in North Dakota courts in the case of post-trial proceedings.

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  • Oklahoma

    Post-trial proceedings are presumptively open.  Convictions have been affirmed and defendants’ claims that they were prejudiced by the presence of the media during sentencing have generally been rejected.  See Brennan v. State, 1988 OK CR 297, 766 P.2d 1385; Kennedy v. State, 1982 OK CR 11, 640 P.2d 971.

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  • Oregon

    No Oregon court has specifically addressed access to post-trial proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publishing Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173 (1987).

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  • Pennsylvania

    While Pennsylvania courts have not ruled on whether there is a right of access to post-trial proceedings, the Pennsylvania Superior Court held that there is a right of access to post-trial records: “Given the open nature of criminal trials, and sentencing proceedings in particular, we find that letters submitted to a sentencing court by defense counsel at the time of sentencing, which the sentencing court explicitly reviews in preparation for sentencing, are public judicial documents regardless of whether the sentencing court formally dockets the letters.” Commonwealth v. Martinez, 917 A.2d 856, 861-62 (Pa. Super. 2007); see also id. at 861 n.9 (acknowledging that the federal courts hold “that the public, and consequently the press, have a qualified First Amendment right of access to sentencing proceedings”); Commonwealth v. Dominick, 40 Pa. D. & C. 5th 347, 350-52 (Lackawanna Cty. C.C.P. Sept. 3, 2014) (citing Martinez for the proposition that letters to a sentencing court are public judicial documents even if not docketed.).

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  • Utah

    The general presumption in favor of the right of public access presumably applies equally to post-trial proceedings.  See, e.g., Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 518 (Utah 1984).

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  • Vermont

    The Vermont Supreme Court has applied the two-part test developed by the United States Supreme Court for determining whether the First Amendment right of access to criminal proceedings attaches to a particular proceeding.  State v. LaBounty, 167 Vt. 25, 29, 702 A.2d 82, 85 (Vt. 1997) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)).  Under this test, the qualified right attaches if, first, “the place and process have historically been open to the press and general public,” and second, “public access plays a significant positive role in the functioning of the particular process in question.”  LaBounty, 167 Vt. at 29, 702 A.2d at 85.  Applying this test, the Vermont Supreme Court has held that “[p]ublic access to sentencing hearings, and to documents filed in connection therewith, plays an important role in the sentencing process.”  State v. Densmore, 160 Vt. 131, 136, 624 A.2d 1138, 1141 (Vt. 1993).

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  • Virginia

    The Virginia Supreme Court has recognized the public’s presumptive right of access to judicial proceedings and records generally. See generally, Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253 (1988).  It follows that the right of access extends to post-trial proceedings and records, and the Virginia Supreme Court has suggested as much. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628–29, 570 S.E.2d 809, 812 (2002) (observing that the public had not been denied access to post-trial proceedings).

    The Virginia Court of Appeals has found a qualified constitutional right of access to hearings on post-trial motions to set aside a jury verdict. In re Times-World Corp., 7 Va. App. 317, 321-322, 373 S.E.2d 474, 476 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 610, 528 S.E.2d 458, 464 (2000).

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  • Washington

    The public’s right of access to court proceedings extends to all stages of criminal proceedings.  State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012).

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  • West Virginia

    In United States v. Soussoudis, 807 F.2d 383, 389 (4th Cir. 1986), the Fourth Circuit found that the First Amendment right of access extends to plea hearings and sentencing hearings, noting that “[b]ecause the taking of a guilty plea serves as a substitute for a trial, it may reasonably be treated in the same manner as a trial for First Amendment purposes. Sentencing may also be viewed as within the scope of the criminal trial itself.” The court added that “even if plea hearings and sentencing hearings are not considered a part of the trial itself, they are surely as much an integral part of a criminal prosecution as are preliminary probable-cause hearings, suppression hearings, or bail hearings, all of which have been held to be subject to the public’s First Amendment right of access.”

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  • Wyoming

    Post-trial proceedings are generally open in Wyoming under the standards set forth in Williams v. Stafford. Presentence investigations and reports are confidential.

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