F. Pretrial motions and records
In United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (“McVeigh II”), the Tenth Circuit provided that the First Amendment includes a “right of access to suppression hearings and accompanying motions,” but this right “does not extend to the evidence actually ruled inadmissible in such a hearing.” McVeigh II, 119 F.3d at 813–14 (rejecting press's request for access to suppressed evidence).
In United States v. Miller, 579 F. Supp. 862, 866 (S.D. Fla. 1984), a district court held:
There is no reason to distinguish between pretrial proceedings and the documents filed in regard to them. Indeed, the two principal justifications for the first amendment right of access to criminal proceedings apply, in general, to pretrial documents ... pretrial documents ... are often important to a full understanding of the way in which “the judicial process and the government as a whole” are functioning.
Id. (quoting Associated Press v. U.S. Dist. Court, 705 F.2d 1143, 1145 (9th Cir. 1983)).
“The courts of appeals have recognized a right of access to various pre-trial proceedings and the documents filed in regard to them, including, for example, suppression, due process, entrapment, and plea hearings.” United States v. Kravetz, 706 F.3d 47, 55, n.6 (1st Cir. 2013).
In criminal cases, “legal memoranda that parties are required to file in conjunction with motions” submitted to the trial court “constitute materials on which a court is meant to rely in determining the parties’ substantive rights” and therefore “are subject to both common-law and First Amendment rights of access.” In re Providence Journal Co., 293 F.3d 1, 11 (1st Cir. 2002).
There is a qualified First Amendment right of access to criminal proceedings, which extends to certain pretrial proceedings. In re N.Y. Times Co., 828 F.2d 110 (2d Cir. 1987); see also United States v. Martoma, No. S1 12 CR 973 PGG, 2014 WL 164181, at *6 (S.D.N.Y. Jan. 9, 2014) (concluding that defendant's interest in maintaining closure to avoid embarrassment “does not trump the presumptive right to public access that attaches to substantive pre-trial motions"); In re Herald Co., 734 F.2d 93, 98 (2d Cir. 1984) (right of access applies to pretrial suppression hearings); ABC, Inc. v. Stewart, 360 F.3d 90, 105–06 (2d Cir. 2004) (right of access applies to voir dire proceedings); United States v. Haller, 837 F.2d 84, 86 (2d Cir. 1988) (plea hearings); United States v. Alcantara, 396 F.3d 189, 191–92 (2d Cir. 2005) (sentencing hearings).
Access to written documents filed in connection with pretrial motions is particularly important where "no hearing is held and the court's ruling is based solely upon the motion papers." In re N.Y. Times Co., 828 F.2d at 112. Essentially, the presumption of access under the First Amendment is weightier for motions that serve as the only means by which the public has access to information about the case. Still, the Second Circuit has permitted limited redaction and sealing of documents related to motion hearings as the documents involved compelling interests in privacy, law enforcement, and government investigation. See Palmer v. John Doe, No. 13–cv–2373, 2014 WL 2521315 (2d Cir. 2014).
The Third Circuit has recognized a right of access to pretrial documents. See United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (holding that “the First Amendment right of access recognized in Richmond Newspapers and the common law right of access … extend to bills of particulars because we think them more properly regarded as supplements to the indictment than as the equivalent of civil discovery”); United States v. Thomas, 905 F.3d 276, 281–82 (3d Cir. 2018) (plea documents).
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).
The Fifth Circuit has held that the presumption of openness applies with nearly equal force to pre-trial hearings. This is because the basis for public criminal trials is that they encourage witnesses to come forward, discourage perjury, insure that the judge and prosecutor act responsibly, and lend credibility by allowing the public to see that an accused is dealt with fairly. These objectives are frustrated if pre-trial hearings are closed. United States v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986). The right to a public trial is thus not limited to issues that arise after a jury is sworn or times when the jury is present. Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir. 1984). This right extends at least to those pretrial hearings and other proceedings that are an integral part of the trial, such as jury selection and motions to suppress evidence. Id. A pre-trial suppression hearing can be closed only if it satisfies the First Amendment tests set out in Press-Enterprise, that there is an overriding interest that is likely to be prejudiced absent closure and that the closure is no broader than necessary to protect the interest, and that reasonable alternatives to closure have been considered and found wanting. United States v. De Los Santos, 810 F.2d 1326, 1333 (5th Cir. 1987). Protecting a confidential informant may satisfy that test. Id.
However, the right of access to some pre-trial hearings, such as a bail hearing, is not as strong as the right of access to the trial itself. United States v. Chagra, 701 F.2d 354, 364 (5th Cir. 1983). Closure of a pre-trial bail reduction hearing is permissible if the defendant shows that (1) his right to a fair trial will likely be prejudiced by conducting the hearing in public; (2) alternatives to closure cannot adequately protect his fair trial right; and (3) closure will probably be effective in protecting against the perceived danger. Id.
Furthermore, a court can prohibit the media from inspecting evidence that is not a matter of public record. Therefore, the media has no right of access to exhibits produced under subpoena but not yet admitted into evidence. United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977).
Due to the importance of pretrial proceedings, the First Amendment right of access is not “confined to the actual trial.” Application of Nat’l Broad. Co., 828 F.2d 340, 348 (6th Cir. 1987). The Sixth Circuit has specifically found that judicial recusal proceedings and records have been found to be historically open and public access to such proceedings have been found to “play ‘a significant positive role’ in such proceedings.” Id. at 344–45 (citing United States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983)). The same is true for a “motion for inquiry into attorney conflicts in interest” pursuant to Federal Rule of Criminal Procedure 44(c). Id. at 345. As a result, there is a qualified First Amendment right of access to judicial recusal records and motions for attorney conflicts of interest. Id.
Similarly, the Sixth Circuit found there was a qualified First Amendment right of access to records submitted to a judge as part of an ex parte hearing that, at least in part, were submitted to induce the judge to consider recusal, except the grand jury transcripts provided, which were “totally irrelevant” to the hearing. Application of Storer Commc’ns, Inc., 828 F.2d 330, 336 (6th Cir. 1987).
The Sixth Circuit has also favorably cited to application of the Richmond Newspapers “experience and logic” test for “transcripts of sidebars or chambers conferences concerning evidentiary rulings” by the Third Circuit in a criminal case. Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th Cir. 2002) (citing United States v. Smith, 787 F.2d 111, 116 (3d Cir. 1986)).
United States v. McGee, 2007 WL 2570240, 35 Media L. Rep. 2609 (E.D. Wis. Aug. 31, 2007) held that the financial disclosure form defendant submitted in support of his request for court-appointed counsel pursuant to the Criminal Justice Act, 18 U.S.C. § 3006(A), “is not a judicial document, but rather, is an administrative document,” and as such, news media intervenors had “neither a First Amendment nor common law right of access to such document.” Id. at *8.
See also discussion of motions to unseal search warrant affidavits and wiretap evidence introduced in suppression hearings, above.
In holding that “the qualified First Amendment right of access to criminal proceedings described in Press-Enterprise II applies to pretrial hearings,” the Supreme Court of Alabama also found that the same right of access applies to associated court records. Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433 (Ala. 1992).
Motions for closure, however, may be filed under seal, and the trial court may accept submissions under seal or for in camera review. Ex parte Birmingham News Co., 624 So. 2d 1117, 1135 (Ala. Crim. App. 1993). Further, “[i]f the articulation of the trial court’s specific findings would itself reveal information entitled to remain confidential, the basis for closure may be set forth in a sealed portion of the record.” Id.
With regard to plea agreements, negotiations are considered to be private matters between the parties; any plea agreement, however, must be disclosed in open court prior to the time the plea is offered. Ala. R. Crim. P. 14.3(b). Once disclosed in open court, the plea agreement becomes subject to the public’s First Amendment right of access. Ex parte Birmingham News Co., 624 So. 2d 1117, 1131 (Ala. Crim. App. 1993).
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 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 to Alaska court records—most notably, Alaska Administrative Rules of Court 37.5 through 37.8—but would only be enforceable to the extent that they are not unconstitutional.
In Henry v. Municipality of Anchorage, No. 3:15-cv-00187-RRB (D. Alaska), the federal district court judge presiding over an Anchorage police detective’s high profile suit against his former employer, granted a motion filed by press intervenors Anchorage Daily News and KTUU-TV to compel release of a significant 97-page internal investigation report prepared for the Municipality by a police consultant and used in the litigation. (Beistline, J., Order Motions Regarding Access to Brown Report and Related Judicial Records, Dkt. 918, September 25, 2018). The report had been produced to plaintiff during discovery subject to a stipulated protective order stipulated to by the parties. The court agreed with the press that the “good cause” standard that might suffice to warrant a protective order was not sufficient to justify continued withholding of the document once it had been used in connection with various motions filed in the court proceeding, and that instead, a compelling justification for nondisclosure would need to be shown. This Order is discussed in further detail in the preceding section concerning access to discovery materials.
The Supreme Court of Arkansas said the general rule is that “that pretrial proceedings and their record must be open to the public, including representatives of the news media, and before an exception to that general rule is made, the test set out in Arkansas Television must be met.” Arkansas Newspaper Inc. v. Patterson, 281 Ark. 213, 215, 662 S.W.2d 826, 827 (1984) (citing Arkansas Television Co. v. Tedder, 281 Ark. 152, 157, 662 S.W.2d 174, 176 (1983) (creating a two-part test for closure: “the proponent of closure must demonstrate a substantial probability that (1) irreparable damage to the defendant’s fair trial right will result from an open hearing and (2) alternatives to closure will not adequately protect the right to fair trial.”)).
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 can be applied to criminal court records as well. See, e.g., People v. Connor, 115 Cal. App. 4th 669, 695-96, 9 Cal. Rptr. 3d 521 (2004) (First Amendment applied to probation report). In an unpublished opinion, the California Court of Appeal has unsealed pleadings in a criminal case where “[t]he motion involve[d] facts that are matters of public record and have been the subject of previous media attention.” See Copley Press, Inc. v. Superior Court, No. D039944, 2002 WL 661559, *1 (Cal. Ct. App. 2002) (unpublished).
California Rules of Court, Rules 2.550 and 2.551, provide the procedures to obtain a sealing order. Courts may 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). 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). Cf. In re Marriage of Candiotti, 34 Cal. App. 4th 718, 722, 724, 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).
The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records, and generally provides that custodians of ordinary criminal justice records have discretion to permit or deny public access. C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records, subject to certain exceptions. (Section 4.10; Section 4.60.)
The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.” People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018). “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.” Id. ¶ 8. The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.
In cases of arrest without a warrant, assuming the person is still in custody post-arraignment, Connecticut law requires a probable cause hearing. Affidavits submitted for that hearing are presumptively public. Conn. R. Super. Ct. § 37-12(d). The judge presiding at that hearing may order the materials sealed only for good cause, via a process laid out by statute. Conn. R. Super. Ct. § 37-12(b), (c).
As for other pretrial documents: The Connecticut Supreme Court has emphasized that the presumption of openness codified at Conn. R. Super. Ct. § 42-49A applies to all “judicial documents,” defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function.” State v. Komisarjevsky, 302 Conn. 162, 176, 25 A.3d 613, 622 (2011). Noting that the Connecticut Appellate Court had, on this basis, already held that the presumption of openness includes pretrial documents, the Court assumed, without deciding, that a pretrial witness list in a criminal case would normally be subject to disclosure. Id. (Nevertheless, it ultimately upheld nondisclosure against the media intervenors’ request, citing concerns about a fair trial).
In Connecticut federal trial court, judicial documents in criminal cases may be sealed “only if [the district court] makes particularized findings on the record demonstrating that sealing is essential to preserve compelling interests, and that sealing in whole or in part is narrowly tailored to serve those interests.” D. Conn. Local. Crim. R. 57(b)(3)(B).
The D.C. Circuit has recognized a limited right of access to pretrial motions and records. Wash. Post v. Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (holding that motions to seal plea agreements, for which there is a First Amendment right of access, must be publicly docketed); United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980) (applying test, determining whether to unseal, to documents seized from third-party defendant Church of Scientology that were subsequently introduced, under seal, at pre-trial suppression hearing by defendant church officers and employees for purposes of demonstrating unlawfulness of search). However, in In re A.H. Belo Corp., 66 F. Supp. 2d 47, 49 (D.D.C. 1999), the court denied access to tapes and transcripts of anticipated evidence in former Secretary of Housing and Urban Development's corruption proceedings. The court reviewed the materials in camera as part of an otherwise open pre-trial suppression hearing and ordered them withheld from the public because the documents were not admitted into evidence and the defendant pled guilty prior to trial in part to prevent the disclosure of sensitive information about himself. Id.
The Delaware Supreme Court has held that there is no First Amendment right to know the names of jurors prior to and during trial. Gannett Co., Inc v. State, 571 A.2d 735 (Del. 1989). The U.S. Appeals Court for the Third Circuit (which includes Delaware), however, ruled in 2008 that there is a First Amendment right of access to the identities of jurors pre-empanelment. U.S. v. Wecht, 537 F.3d 222 (3rd Cir. 2008).
District of Columbia
Access to pretrial motions and records is governed by the D.C. Circuit decision in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (discussing pre-trial records). The D.C. Circuit established six factors in determining public and press access to sealed documents: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. Id. at 317-22; see also United States v. Armstrong, No. MISC. 11-565 DAR, 2012 WL 7148452, at *1 (D.D.C. Dec. 6, 2012) (denying motion to seal pretrial materials, citing Hubbard factors). Pretrial materials generated in the course of plea negotiations, a U.S. District Judge held, do not implicate the First Amendment or common law rights of access if they are not filed with the court, admitted in evidence, or otherwise played some role in the formal adjudicatory process. United States v. Ring, 47 F. Supp. 3d 38, 41-42 (D.D.C. 2014).
The presumption of access attaches to criminal court records at any stage of a judicial proceeding. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). The Florida Supreme Court held, in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1983), that to justify closure of a criminal court record, including pretrial motions, the proponent of closure must overcome the presumption of openness with the Lewis test. 426 So. 2d at 6.
Pretrial motions to make court records confidential often arise in the suppression context where the defense claims disclosure would prejudice the defendant’s Sixth Amendment rights. Typically, such motions involve sealing confessions. According to Florida statute, any information revealing the “substance of a confession” of a person arrested is exempt from disclosure until such time as the criminal case is finally determined by adjudication, dismissal or other final disposition. Fla. Stat. § 119.071(2)(e). In Times Pub. Co. v. State, 827 So.2d 1040, 1042 (Fla. Dist. Ct. App. 2002), the Second District Court of Appeal held that the lower court’s decision to seal an entire interview transcript and tape—when a substantial portion was unrelated to the defendant’s confession—constituted a departure from the essential requirements of law, and only that portion that could be characterized as the substance of the defendant’s confession could be sealed.
It is well established in Georgia that the public enjoys a clear and routine right of access to pretrial criminal proceedings and records. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578–79 (1982) (reversing the trial court’s exclusion of the press from pretrial hearings, including hearings on motions for change of venue, individual and sequestered voir dire of prospective jurors and admissibility of certain evidence in a murder trial); see also Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (“There is a presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.”). Uniform Superior Court Rule 21 states that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].”
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).
In People v. Zimmerman, 120 N.E.3d 918 (IL 2018), the Illinois Supreme Court held that a presumption of access does not apply to motions in limine containing discovery materials.
In People v. Van Dyke, the trial court issued a “decorum” order, requiring the parties to file all documents under seal in chambers instead of openly with the clerk’s office. See People v. Van Dyke, No. 17-CR-0428601 (Cook Cty. Cir., Ill.). A coalition of news organizations, along with the Reporters Committee, intervened in the case in 2018, moved to unseal the record, and challenged this sealing practice under the First Amendment, common law, and Clerks of Courts Act. When the trial court denied the coalition’s motion to vacate the decorum order, the coalition filed an emergency appeal with the Illinois Supreme Court. That court granted a supervisory order, directing the trial court to vacate the decorum order and requiring all documents and pleadings to be filed in the clerk’s office. Jenner & Block LLP represented Chicago Public Media, Inc., one of the intervener-news organizations in this matter.
Pretrial motions and records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1).
Indiana Administrative Rule 9(G)(2)(l) excludes “[c]ase [r]ecords created or maintained by an agency or program for pre-trial release and supervision and problem-solving court supervision.”
Generally, court records filed in the office of the clerk of court are public records open to inspection under Iowa Code Chapter 22. In Iowa, “[e]very person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.” Iowa Code § 22.2 (2018).
Pretrial motions and records are accessible the same as any other filings in a case. The Kansas Supreme Court has adopted a “strong presumption in favor of . . . free access to records in a criminal case.” Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981) (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
The presumption of openness extends “‘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)). The Kansas Supreme Court said, “Before pretrial proceedings can be closed or any record sealed, the . . . moving party must establish that: (1) a clear and present danger to the fairness of the trial would exist if the information were publicly disclosed, and (2) the prejudicial effect of such information on the fairness of the trial cannot be avoided by reasonable alternative means . . . .” Fossey, 630 P.2d at 1183 (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
All criminal court records are presumptively open to the public. Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); see also Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).
The Louisiana Constitution 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).
There is also a constitutional right of access to public documents. Article 12, § 3 of the Louisiana Constitution states: “No person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is implemented by the Louisiana Public Records Act, La. R.S. 44:1 et seq. Under the Public Records Act, “any person” may make a public records request. La. R.S. 44:32. “Any person who has been denied the right to inspect or copy a record” may “institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35.
Courts are covered by the Public Records Act. See La. R.S. 44:1(A)(1), defining “public body” as including “any branch . . . of state . . . government,” and article 2, § 1 of the Louisiana Constitution: “The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”
Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.
“The public and press have an enforceable qualified constitutional right of access . . . to documents filed in connection with the pretrial motions in criminal proceedings. . . . There is a presumption of openness which may be overcome only by an ‘overriding interest’ such as the accused’s right to a fair trial. . . . In order to effect closure or sealing of the record in a criminal proceeding, the moving party must show and the trial court must specifically find that there is a reasonable probability that (1) the defendant’s right to a fair trial will be prejudiced by publicity; (2) closure would prevent that prejudice; and (3) reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights. It is essential that the trial court support any decision to close with specific reasons and findings on the record in order to facilitate appellate review. Broad and general findings by the trial court are not sufficient to justify closure. The First Amendment Right of Access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.” State v. Widenhouse, 556 So.2d 187, 189–90 (La. App. 1990); State v. Lee, 787 So.2d 1020, 1038 (La. App. 2001).
Where limited closure of preliminary hearing was improper, denial of access to transcript of hearing was also improper. State v. Fletcher, 537 So.2d 805 (La. App. 1989).
No Maine court has addressed the issue of the standard for closure of all pre-trial motions and records. In the absence of Maine law on point, the courts often look to federal precedent—and, specifically, U.S. Court of Appeals for the First Circuit authority—for guidance. See Littlefield v. Dep’t of Human Servs., 480 A.2d 731, 737 (Me. 1984) (stating that Maine courts will generally follow First Circuit decisions on federal law “so far as reasonably possible” in the interests of “harmonious federal-state relationships”). In 2013, in the criminal context, the First Circuit heard “a matter of apparent first impression among the circuits” of whether there is a presumption of public access to Rule 17(c) pre-trial subpoenas duces tecum and related documents filed by a defendant in his criminal prosecution. United States v. Kravetz, 706 F.3d 47, 53 (1st Cir. 2013). Given the dearth of precedent, the First Circuit determined that the district court did not abuse its discretion in determining that a journalist did not show a special need warranting access to those records.
In an unreported Maine case, the Chief Justice of the Supreme Judicial Court ruled that a transcript of a chambers hearing to determine the admissibility of confidential records of a child abuse investigation by the Department of Human Services would remain sealed, available only to the counsel of record. State v. Dechaine, slip op., Kno-89-126 (July 11, 1989) (McKusick, J.). However, there was no challenge to the constitutionality of the statute requiring that the records be kept confidential and the intervenor-newspapers only asked that any portions of the hearing that did not contain discussion of the confidential records be disclosed. Id. at 4. The court determined that no part of the transcript could be released because every page contained the name of at least one of the individuals involved in the Department’s child protective activities and because other personally identifying information could be gleaned from the discussion of the web of family relationships discussed in the transcript. Id.
In Baltimore Sun Co. v. Colbert, 593 A.2d 224 (Md. 1991), the Court of Appeals considered the public right of access to a pretrial hearing in a death penalty case in which the defendant sought to enforce the terms of a plea agreement. It found, pursuant to the First Amendment and Article 40 of the Maryland Declaration of Rights, that the public had a qualified right of access to the hearing on the motion and remanded the case for a determination of whether the presumption of access had been overcome and, if so, to ensure that any sealing order was as narrow as possible. Id. at 228; see also Buzbee v. Journal Newspapers, Inc., 465 A.2d 426, 431 (Md. 1983) (same). The court also found a common law right of access to the underlying pleadings filed in connection with the pretrial hearings. Colbert, 593 A.2d at 231. The Legislature subsequently codified this right of access in Maryland Rule 16-902(c) (defining “Case Records”) and Maryland Rule 16-903(b) (presumption that judicial records are open to the public); see also Md. Rule 16-903(d) (once exhibits are filed or marked by the court, they are subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”).
Because “almost all pretrial proceedings are presumptively open,” Lee Levine, et al., Newsgathering and the Law § 3.01[a] (5th ed. 2018), the right of public access extends to most records associated with such pre-trial proceedings. Where the Supreme Court and Massachusetts courts have not yet determined whether a right of access to a certain type of record exists, Massachusetts courts make this determination by considering the type of proceeding associated with the records; if there is a right of access to the proceeding, then the court will likely afford the same access to the records. See, e.g., Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1265 (Mass. 1988) (citing Press–Enterprise II, 478 U.S. 1, 8 (1986); Press–Enterprise I, 464 U.S. 501, 513 (1984)).
Even if evidence submitted for pretrial suppression hearings is ruled inadmissible at trial, it nevertheless becomes part of the public record. See Commonwealth v. Chism, 65 N.E.3d 1171, 1179 (Mass. 2017) (“A recording admitted in evidence as an exhibit at a motion to suppress hearing, and a transcript of that recording marked for identification, are judicial records.”) (citing New England Internet Café, LLC v. Clerk of Super. Ct., 462 Mass. 76, 82–83 (2012)).
Minnesota Rules of Criminal Procedure 25.01 and 26.03 state a general right of public access to pretrial and trial proceedings. In addition, the Minnesota Court of Appeals has recognized that the public “generally is entitled to access judicial records,” as governed by the Rules of Public Access to Records of the Judicial Branch. State v. C.P.H., 707 N.W.2d 699, 704–05 (Minn. Ct. App. 2006). As a general policy, the “[r]ecords of all courts and court administrators … are presumed to be open to any member of the public for inspection or copying at all times during the regular office hours.” Minn. R. Pub. Access Rec’ds. Jud. Br. 2. “Records” are defined as “any recorded information that is collected, created, received, maintained or disseminated by a court or court administrator.” Id. 3, subd. 5. Rules 7 and 8 dictate the procedure for requesting access, which is straightforward and does not require the payment of a fee unless otherwise established by statute; however, when copies are requested, the custodian may charge a copy fee. Id. 8; subd. 6.
Based upon the right-to-know provision of the Montana Constitution and the right of access recognized under the First and Fourteenth Amendments to the United States Constitution, the Montana Supreme Court has held that the public and press may be excluded from a pretrial suppression hearing only if dissemination of information acquired at the hearing would create a clear and present danger to the fairness of the defendant's trial, and no reasonable alternative means can be utilized to avoid the prejudicial effect of such information. State ex rel. Smith v. Dist. Court of Eighth Judicial Dist., 201 Mont. 376, 385, 654 P.2d 982, 987 (Mont. 1982).
Opinions and orders ought always to be publicly available. Transcripts of preliminary hearings and suppression hearings are public unless all or a portion of any such hearing was closed pursuant to the Nebraska Guidelines. Indictments and information are public once the indictment or information is filed with the clerk and the case is docketed. Neb. Rev. Stat. § 29-1414 (Reissue 2016); Neb. Rev. Stat. § 29-1604 (Reissue 2016). Briefs are not filed with the clerk, but rather are delivered to the presiding judge. The Nebraska Attorney General has opined that briefs are nonetheless public records. Neb. Atty. Gen. Op. No. 04030 (12-27-04).
If an indictment is found or accusation presented, then the court reporter shall deliver a certified copy of the transcript to the county clerk. Upon the filing of this transcript, the transcript and any related physical evidence exhibited to the grand jury become a matter of public record unless the court: “(a) Orders that the presentment or indictment remain secret until the defendant is in custody or has been given bail; or (b) Upon motion, orders the transcript and evidence to remain secret until further order of the court.” NRS § 172.225.
The New Mexico courts have not specifically ruled on this issue, although the Tenth Circuit held in United States v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) that “the press and public have a right of access to pretrial release proceedings and documents filed therein.” Further, Rule 5-123 NMRA states that “court records are subject to public access unless sealed by order of the court,” and defines “court record” as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case.” Rule 5-123(B) NMRA. This definition, comprising pretrial records, indicates that they are likewise subject to public access.
Like pretrial proceedings themselves, records from pretrial hearings are generally accessible to the public. See, e.g., People v. Burton, 189 A.D.2d 532, 533, 597 N.Y.S.2d 488, 490 (3d Dep’t 1993) (reversing trial court’s decision to seal DNA records from pre-trial hearing). Again, “the burden is on those seeking to seal records to show that the public's right of access is outweighed by competing interests . . . and a trial court must also consider less drastic alternatives to sealing the records which would adequately serve the competing interests.” Id. (citing Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65–66 (4th Cir. 1989); Matter of Knight Pub’g. Co., 743 F.2d 231, 235 (4th Cir. 1984)). Where the justification for the abridgement of the right of access is a criminal defendant's right to a fair trial, “sealing may only be ordered upon a showing of a reasonable likelihood that the publicity from disclosure of the records would render it impossible to obtain a fair and impartial jury.” Id. (citing United States v. Martin, 746 F.2d 964, 970 (3d Cir. 1984)). By contrast, in Daily News L.P. v. Teresi, the court upheld the sealing of Brady and Sandoval motions and related materials. 265 A.D.2d 129, 134, 706 N.Y.S.2d 527, 531 (3d Dep’t 2000).
The Rules of Superintendence for the Courts of Ohio define “case document” as “a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments . . .,” subject to certain exclusions. Sup.R. 44(C)(1)–(C)(2). These pretrial documents are presumptively open to the public. Sup.R. 45(A). The court shall restrict public access if it finds by clear and convincing evidence that “the presumption of allowing public access is outweighed by a higher interest.” Sup.R. 45(E)(2). Pretrial discovery submitted as part of the court record becomes public record. State ex rel. Cincinnati Enquirer v. Dinkelacker, 761 N.E.2d 656, 660 (Ohio 2001). The court retains the ability not to release the records during the pendency of the trial if disclosure would affect the defendant’s right to a fair trial. Id. at 661.
When court records have been expunged, they are not available for public disclosure. R.C. § 2953.31 et seq.; R.C. § 2953.51 et seq. Similarly, a court, after balancing the public and private interests, may seal a trial record after a finding of not guilty or after dismissal of a complaint. State ex rel. Cincinnati Enquirer v. Winkler, 805 N.E.2d 1094, 1097–98 (Ohio 2004).
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.
The Rhode Island Supreme Court has not directly addressed this question. However, in State v. Cianci, it prescribed a four-part test to “closure” in a review of the trial justice’s order closing access to information that included court records. 496 A.2d 139, 144-45 (R.I. 1985) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)).
A protective order (1) must be narrowly tailored to serve the interests sought to be protected, (2) must be the only reasonable alternative, (3) must permit access to those parts of the record not deemed sensitive, and (4) must be accompanied by the trial justice’s specific findings explaining the necessity for the order.
Cianci, 496 A.2d at 144. The First Circuit has also held that the constitutional right “extends to documents and kindred materials submitted in connection with the prosecution and defense of criminal proceedings.” In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002).
As set forth above, both the South Carolina Constitution and statutes provide a presumptive right of public access to court records. This rule applies to pre-trial records in the criminal context.
As a practical matter, physical copies of these records are generally available at the court clerk’s office records department in each county. Although many court documents of civil proceedings are available through each county’s public index system, criminal court records are not available online but are kept in physical form at the clerk’s office and are available upon request.
A Texas court of appeals ruled that a court could not seal the transcript of a hearing on a motion to transfer venue that the public was barred from attending. See Houston Chronicle Publ’g Co. v. Dean, 792 S.W.2d 273, 274 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding). The court relied on the public access requirement of Article 1.24 of the Texas Code of Criminal Procedure in its decision, noting simply that the provision requires criminal trials and proceedings to be public. See id.
Once filed with a court, an indictment becomes part of the public record. See Star-Telegram, 834 S.W.2d at 57 & n.4 (citing Tex. Code Crim. Proc. Ann. art. 1.24). However, when a grand jury presents an indictment for an individual not already in custody or under bond, the indictment may not become public or entered into the court’s record until the defendant is in custody or has made bond. See Tex. Code Crim. Proc. Ann. art. 20.22(a)–(b).
Subpoenas in criminal proceedings may or may not be filed under seal. See id. art. 24.01(d). On the other hand, an attachment, which is a writ commanding a peace officer to bring a witness before a court, magistrate, or grand jury in order to testify, must be filed under seal. See id. art. 24.11.
The Utah Supreme Court has held that the public and press have right of access to pretrial hearings and related documents under the First Amendment, the Utah Constitution, and common law. See Kearns-Tribune Corp. v. Lewis,685 P.2d 515, 521 (Utah 1984); Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987); State v. Archuleta,857 P.2d 234, 239 (Utah 1993). “In addition to kindling public misperception and eroding public confidence, closure of significant pretrial proceedings perpetuates general ignorance and cuts off public knowledge necessary to a full understanding of the criminal justice system.” Kearns-Tribune, 685 P.2d at 521 (internal quotations omitted). The Utah Supreme Court has “see[n] no reason to distinguish generally between access to a preliminary hearing and the documents filed in relation to that hearing” because “[a]ccess to pretrial documents furthers the same societal needs served by open trials and pretrial civil and criminal proceedings.” Archuleta, 857 P.2d at 238. The public’s right of access may be overcome if a trial court finds that disclosure of records containing sensitive or inflammatory information that is not necessarily accurate or admissible would jeopardize the defendant’s chance of receiving a fair trial. Archuleta, 857 P.2d at 239.
The Vermont Supreme Court “start[s] with the presumption that pretrial proceedings and documents are open to the public, closure being the exception rather than the rule.” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987) (holding that members of the public and news media have a right of access to affidavits of probable cause). “To rebut the presumption of openness, the party seeking closure must demonstrate ‘that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. (citation omitted); see also Herald Ass’n v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (Vt. 1980) (“any pretrial closure order imposed in this jurisdiction must be based on a clear necessity for the protection of the defendant’s fair trial rights and must be limited in scope by its justification”).
Vermont Rule of Criminal Procedure 53.1 provides that “[v]ideo recordings of public proceedings are public records, unless otherwise protected from disclosure by law or by order of the court. Duplicated copies may be ordered at the conclusion of a trial, or at any time by a party.” V.R.Cr.P. Rule 53.1(f). However, the Rules contain exceptions to the general right of public access for “[a]ny transcript, court reporter’s notes, or audio or videotape of a proceeding to which the public does not have access” or “[a]ny evidence introduced in a proceeding to which the public does not have access.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(30)-(31).
The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[a]n evaluation by a mental health professional to determine the competency to stand trial and/or sanity of a criminal defendant, if not admitted into evidence.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(19). Moreover, the Rules contain an exception to the general right of public access for “[r]ecords filed in court in connection with the initiation of a criminal proceeding, if the judicial officer does not find probable cause to believe that an offense has been committed and that defendant has committed it, pursuant to Rule 4(b) or 5(c) of the Vermont Rules of Criminal Procedure.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(24).
There are no reported cases in Virginia specifically addressing the public’s right of access to pretrial motions and records in criminal matters, although the Virginia Supreme Court has addressed the public’s right of access to pretrial proceedings. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 588, 281 S.E.2d 915, 922 (1981) (public has presumptive right of access to suppression hearings).
The public’s qualified right of access under Virginia Code § 17.1-208(B) to circuit court records extends to both civil and criminal matters, and it includes “the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review.” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988).
“[T]he public’s interest in the conduct of the judicial system may be even more acute when pretrial hearings are involved,” as the overwhelming majority of criminal cases are resolved before trial. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 587, 281 S.E.2d 915, 922 (1981).
See also Va. Code § 16.1-69.54:1(E) (access to general district court records) (effective July 1, 2019).
The Virginia Court of Appeals has held that the public has a qualified right of access to documents filed in connection with criminal competency hearings. See In re Times-World Corp., 25 Va. App. 405, 415, 488 S.E.2d 677, 682 (Va. Ct. App. 1997).
The public’s right of access extends to “transcripts of pretrial hearings or trials” and “exhibits introduced at pretrial hearings or trials.” Seattle Times Co. v. Eberharter, 105 Wn.2d 144, 155, 713 P.2d 710 (1986). An exception may exist for records that are filed but never considered by the court, such as sealed documents that are filed in support of a motion that is not decided because the case settles before the motion is heard. Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 291 P.3d 886 (2013).
As set forth above, both the West Virginia constitution and statutes provide a presumptive right of public access to court records. See “Access to criminal records/In general” above. This rule applies to pretrial motions and records in the criminal context. See State ex rel. Garden State Newspapers v. Hoke, 520 S.E.2d 186, 191, 196 (W.Va. 1999).
Rule 10.04(d) of the West Virginia Trial Court Rules states, “The custodian of any court file or other public record shall furnish copies of the requested information or, in the alternative, furnish proper and reasonable opportunities for the inspection and examination of the court file or public record in his or her office during usual business hours. Reasonable facilities for taking memoranda or abstracts from the court file or other public record shall be provided. If the court file or public record requested exists in magnetic, electronic or computer form, when requested, the custodian of the records shall make copies available in the format in which it is stored on magnetic or electronic media.”
Rule 10.04(e) states: “The court, circuit clerk, or other court employee may charge a fee reasonably calculated to cover the actual cost of reproducing or otherwise making available the public records.”