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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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  • 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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  • 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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  • 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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  • 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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  • Nevada

    No relevant authority.

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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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  • 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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  • 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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