G. Trial records
The Tenth Circuit has noted “there is no general First Amendment right in the public to access criminal justice records.” Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511–12 (10th Cir. 1994) (holding that the First Amendment right of access to certain criminal proceedings does not extend to law firm’s commercially motivated request for the names, addresses, and telephone numbers of persons charged with misdemeanor driving offenses).
In a case dealing with access to tapes admitted into evidence during a criminal trial, the Supreme Court recognized a common-law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).
The public has a presumptive right under the common law to monitor criminal trials. This right extends to trial records. See generally Nixon v. Warner Commc’ns, 435 U.S. 589, 597 (1978) (finding that the public has a common law right to inspect and copy judicial records and documents). In United States v. Myers, 635 F.2d 945 (2d Cir. 1980), for example, the court held that the press and public had a common law right of access to copies of video and audio tapes which were admitted into evidence and played in open court. Indeed, the Second Circuit has emphasized that:
[O]nce materials have been introduced into evidence in a public proceeding, “it would take the most extraordinary of circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction.”
United States v. Massino, 356 F. Supp. 2d 227, 231 (E.D.N.Y. 2005) (quoting Myers, 635 F.2d at 952); see also United States v. Graham, 257 F.3d 143 (2d Cir. 2001) (video and audio tapes played during detention hearing were judicial documents for the purposes of the station’s common law right of access and applied strong presumption of access).
As with the general analysis governing access to courts and court records, this common-law right is not absolute and must be balanced against interests that include "defendant's right to a fair trial, privacy rights in cases involving materials that are particularly embarrassing to innocent parties, and the safety of third parties." See Massino, 356 F. Supp. 2d at 231.
The First Amendment also guarantees the public and press a qualified right to attend criminal trials. In re NBC Universal, Inc., 426 F. Supp. 2d 49 (E.D.N.Y. 2006). Included in this First Amendment right is the right to be " informed of the evidence placed before the fact-finder." Id. at 56. The Second Circuit has held that the First Amendment right demands broader disclosure to the public than that required by the common law. See Lugosch, 435 F.3d at 124 (recognizing that the right to access under the First Amendment is "more stringent").
“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).
The Seventh Circuit held that a trial court order violated the First Amendment by prohibiting access to documents that identified by name unindicted co-conspirators whose hearsay statements were evidence in the trial. United States v. Ladd, 219 F.3d 701 (7th Cir. 2000). The Court has also held that audiotapes backing up the court reporter’s stenographic record are not judicial records subject to a right of access, absent a showing that the stenographic transcript is inaccurate. Smith v. U.S. Dist. Court Officers, 203 F.3d 440, 442 (7th Cir. 2000); YHWHnewBN v. Board of Educ., 173 Fed. Appx. 518, 520 (7th Cir. 2006).
Records related to criminal trial proceedings are generally subject to the same public right of access as the criminal trials themselves. See Ex parte Consol. Publ’g Co., 601 So. 2d 423, 433 (Ala. 1992) (holding that “the qualified First Amendment right of access to criminal proceedings applies to the court file”).
With regard to evidence submitted at trial generally, “exhibits that are admitted at trial are within the ‘public domain’ and are subject to inspection.” Ex parte State of Alabama, 4 So. 3d 1196, 1202 (Ala. Crim. App. 2008) (citing Ex parte Balogun, 516 So. 2d 606, 612 (Ala. 1987)). Psychiatric reports related to the defendant’s mental competency to stand trial, however, are filed with the clerk of the court under seal, and are accessible only by the judge, the parties’ attorneys, and “others having a proper interest therein” as determined by the court. Ala. R. Crim. P. 11.5(a).
Administrative Order No. 19 provides in Section V that courts should endeavor to make listings of case filings, judgments, orders, or decrees—when they are available in electronic form—available to the public. Court records, however, can be rendered confidential by a protective order. If the record contains information or evidence that could embarrass or exploit minors, there is good cause to seal portions of the record and briefs. Ward v. State, 369 Ark. 313, 313, 253 S.W.3d 927, 927 (2007) (per curiam). In addition, the Arkansas Court of Appeals reads Ark. Code Ann. § 9-27-309 to require sealing the trial record and briefs in juvenile delinquency cases on appeal. D.W. v. State, 2010 Ark. App. 486 (Ark. App. 2010). Though the press has a right to attend public trials, it does not have a constitutional right to copy audiotapes that were admitted into evidence in a mail fraud trial. United States v. Webbe, 791 F.2d 103, 105 (8th Cir.1986).
Uniform Superior Court Rule 21 provides 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 below.” This includes trial records. In Kidwell v. State, 264 Ga. 427, 430 (1994), the court noted that transcripts from the trials of co-defendants are public records and just as accessible to defendants as to the State. See also Green v. Drinnon, Inc., 262 Ga. 264, 265 (1992) (holding that a tape or transcript of a judge’s remarks in open court must be made available for public inspection based on Rule 21); Undisclosed LLC v. State, 807 S.E.2d 393 (Ga. 2017) (a court reporter’s tape of proceedings may not be accessible if there is a filed transcript). See generally Munoz v. Am. Lawyer Media, L.P., 236 Ga. App. 462, 464 (1999) (“Photographic or other exhibits, and a trial record’s printed text, are equally open to public inspection”).
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.
Trial records are accessible the same as others 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)).
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. Trial records are thus subject to public access. However, the following court records shall be automatically sealed without motion or order of the court:
“(a) grand jury proceedings in which a no bill has been filed under Section 31-6-5 NMSA 1978;
(b) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;
(c) proceedings commenced upon an application for an order for wiretapping, eavesdropping or the interception of any wire or oral communication under Section 30-12-3 NMSA 1978;
(d) pre-indictment proceedings commenced under Chapter 31, Article 6 NMSA 1978 or Rule 5-302A NMRA;
(e) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”
Outside the aforementioned exclusions, those seeking record closure must file a motion for an order sealing the court record, through which they show:
“(a) the existence of an overriding interest that overcomes the right of public access to the court record;
(b) the overriding interest supports sealing the court record;
(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;
(d) the proposed sealing is narrowly tailored; and
(e) no less restrictive means exist to achieve the overriding interest.”
Rule 5-123(G) NMRA.
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.
The Vermont Rules for Public Access to Court Records (the “Rules”) — govern the rights of access by the public to judicial records. See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005).
Recently, the Vermont Supreme Court made explicit that “[r]equests to courts for public access to case records should be evaluated under the Vermont Rules for Public Access to Court Records”, not the Vermont Public Records Act. In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47¶ 13 (July 19, 2019).
These Rules “provide a comprehensive policy on public access to Judicial Branch records . . . [and] [t]hey shall be liberally construed in order to implement the policies therein.” Vt. Pub. Acc. Ct. Rec. Rule 1. The general policy in Vermont with respect to public access to court records is that such records “shall be open to any member of the public for inspection or to obtain copies.” Vt. Pub. Acc. Ct. Rec. Rule 4 (emphasis added). Specifically, the Rules provide that “[t]he public shall have access to all case records, in accordance with the provisions of this rule, except as provided in subsection (b) of this section.” Vt. Pub. Acc. Ct. Rec. Rule 6(a) (emphasis added); see also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT at ¶ 22. “This is because’ [openness] . . . enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.’” State v. Tallman, 148 Vt. 465, 474, 537 A.2d 422, 427-28 (Vt. 1987) (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508 (1984)).
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 Vermont Rules for Public Access to Court Records 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).