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).
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 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).
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 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.”)).
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).
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)).
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.
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.