F. Pretrial motions and records
The public has a First Amendment right of access to documents filed in connection with motions to dismiss an indictment, to transfer the case, and to compel discovery. In re Time Inc., 182 F.3d 270, 271 (4th Cir. 1999); see also In re Charlotte Observer, 882 F.2d. 850 (4th Cir. 1989) (First Amendment right of access to venue transfer motions and related filings).
The public has a First Amendment right of access to records filed in connection with plea hearings. In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986).
A district court in the Fourth Circuit has held that the public has a common law and First Amendment right of access to charging documents. However, after indictment but before arrest, the government has a compelling interest in preventing the accused from avoiding arrest, destroying or tampering with evidence, or otherwise interfering with the prosecution; securing privacy rights or confidential sources of information; and protecting the public. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *3-4 (E.D. Va. Jan. 30, 2019).
A district court in the Fourth Circuit has held that the public’s right of access does not include the right to compel the government to disclose whether a person has been criminally charged, as such information does not constitute a judicial record. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *4 n.6 (E.D. Va. Jan. 30, 2019).
Pretrial service reports, used by judicial officers to determine bail of a federal criminal defendant who has been charged with an offense, are sealed. D. Id. L. Crim. Rule 46.2. In addition, Idaho Court Administrative Rule exempts a number of pretrial documents, including records related to certain juvenile proceedings, mental commitments, adoptions, guardianships, parental terminations, child custody, domestic abuse, minors seeking abortions, sterilization proceedings and records gather under the auspices of the court as listed in I.C.A.R. 32(g)(17). See generally I.C.A.R. 32(g).
The Pennsylvania Supreme Court has recognized the existence of a common law and constitutional right to access judicial proceedings and records. Commonwealth v. Upshur, 924 A.2d 642, 647-48 (Pa. 2007); Commonwealth v. Selenski, 996 A.2d 494, 496-97 (Pa. Super. 2010). The constitutional right is recognized under both the First Amendment, see Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985), and the Pennsylvania Constitution, see Commonwealth v. Hayes, 414 A.2d 318, 322 (Pa. 1980); see also Upshur, 924 A.2d at 648 (ruling that trial court did not abuse its discretion when it permitted a television station access to an audiotape played at a preliminary hearing).
The Pennsylvania Superior Court has held that when a pretrial document is submitted to a judge, but is not docketed, “formally filed with the court, or required by any rule of criminal procedure,” the record is not considered a “‘public judicial document’ subject to the right of First Amendment or common law access.” See Commonwealth v. Curley, --- A.3d ----, 2018 Pa. Super. LEXIS 599, at *23-24 (June 4, 2018) (no right to access letters sent to judge with proffers of witness testimony in connection with issue of attorney-client relationship, when records were never docketed or filed and witnesses did not testify). Similarly, the Superior Court has held that a prosecutor’s pretrial brief arguing that the death penalty applied to a 15-year old was not subject to the right of access where it was presented only to the judge and defense counsel, was never docketed or “formally filed with the court,” and was not “required by any rule of criminal procedure.” Commonwealth v. Crawford, 789 A.2d 266, 271 (Pa. Super. 2001). The court noted that while “the trial court may have reviewed it in determining whether Crawford could be sentenced to death, ultimately the reasoning for any decision is contained in the trial court’s decision.” Id.