G. Trial records
“A First Amendment right of access applies to a criminal trial, including documents submitted in the course of a trial.” In re Time Inc., 182 F.3d 270, 271 (4th Cir. 1999); see also U.S. Dist. Ct. Rules E.D. Va., Local Civil Rule 5(H) (“Trial exhibits, including documents previously filed under seal, and trial transcripts will not be filed under seal except upon a showing of necessity demonstrated to the trial judge.”).
The public’s right of access to trial exhibits does not attach until the exhibit is published to the jury, even if it was previously admitted into evidence. The district court should make trial exhibits available to the public as soon as is practically possible, but in no event later than the day after the exhibit is published to the jury, or, in the case of an exhibit that is published to the jury in parts, after all parts of the exhibit have been published. See In re Associated Press, 172 F. App’x 1 (4th Cir. 2006).
The public’s right of access to trial exhibits does not include a right of physical access to a 911 audio tape that was played in open court in a criminal trial and admitted into evidence where the public was provided a complete verbatim transcript of the recording. See Fisher v. King, 232 F.3d 391, 396-397 (4th Cir. 2000) (citing Nixon v. Warner Communications, 435 U.S. 589 (1978)).
The public’s right of access extends to the transcript of a judicial proceeding and the original audio recording of a proceeding, but not to an audio recording that merely “backs up” the court reporter’s stenographic record. See United States v. Davis, 648 F. App'x 295, 297 (4th Cir. 2016) (quoting Smith v. U.S. Dist. Court Officers, 203 F.3d 440 (7th Cir. 2000)).
The Fifth Circuit has held that the media has no First Amendment right to view or inspect trial exhibits beyond that enjoyed by the public. Belo Broad. Corp. v. Clark, 654 F.2d 423, 427 (5th Cir. 1981). Therefore, physical access to tapes played in court or trial exhibits is not covered by the constitutional right to access since the public would not have that right. A court can thus prohibit the media from inspecting evidence that is not a matter of public record. United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977). It is also permissible for a court to condition the media’s access to exhibits on the court clerk’s availability. Id. at 1210. Meanwhile, transcripts or access to bench conferences between judge and counsel do not fall under the First Amendment. It falls within the judge’s discretion to deny access to these, and to deny access to the written communications between judge and jury. Id.
The Fifth Circuit has recognized a common-law right of access to courtroom exhibits, but this right is not absolute. Belo Broad. Corp. v. Clark, 654 F.2d 423, 429 (5th Cir. 1981).
The decision as to access is one left to the discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Belo Broad. Corp. v. Clark, 654 F.2d 423, 430 (5th Cir. 1981). Only a severe abuse of that discretion will merit reversal. Id. at 431. The rights of the defendant to a fair trial can trump the common-law right of access to exhibits. Id. Additionally, other factual considerations, such as preferential trial seating provided for journalists, and access to transcripts of tape recordings played for the jury, can be weighed by the court when considering whether the media has been provided adequate access under the common-law right. Id. at 432.
The Fifth Circuit has recognized a common-law right to inspect and copy judicial records, but that right is not absolute and will generally only apply to “original records.” Pratt v. Dennis, 511 F.3d 483, 485 (5th Cir. 2007). Audiotapes which constitute original records may be obtained, but back-up tapes of a stenographer’s transcript do not constitute original records and may only be obtained if there is reason to doubt the accuracy of the stenographer’s transcript. Id.
The media have standing to challenge an order denying a request to view evidence because the media are the direct targets of the court’s order. Thus, the two requirements for standing have been met: (1) there is a claim of injury in fact; and (2) the interest sought to be protected is within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977).
While many closure orders require hearings and findings by the judge, mere denial of the media’s requests for access to evidence does not require such actions every time. United States v. Gurney, 558 F.2d 1202, 1211 (5th Cir. 1977).
Most documents offered or admitted during trial are available for public review, except that, before final disposition by the trial court, access to any exhibit shall be allowed only with the permission of the custodian judge. Moreover, the public shall not have access to items of contraband or items that pose a health or safety hazard; for example, drugs, weapons, child pornography, toxic substances, or bodily fluids, without the permission of the custodian judge. I.C.A.R. 32(d)(9). Documents filed for inspection in the judge’s chambers (in camera) are restricted from public viewing. I.C.A.R. 32(g)(15); D. Id. L. Civ. Rule 5.3. In addition, certain records—such as mental commitment records (I.C.A.R. 32(g)(10)), those related to certain juvenile justice, adoption and parental termination proceedings (I.C.A.R. 32(g)(9), (11) & (12)), guardianship or conservatorship proceedings (I.C.A.R. 32(g)(19)) and child custody, support and paternity proceedings (I.C.A.R. 32(g)(20)), among others—are exempt from disclosure.
The public has a right to access trial records, which include evidence admitted at trial. Commonwealth v. Upshur, 924 A.2d 642, 652-53 (Pa. 2007). Indeed, the Supreme Court has held that the public also has a right of access to evidence presented at a preliminary hearing. See id. at 652-53.