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).
The First Circuit has held that Nixon v. Warner Communications, Inc., 435 U.S. 589, 608–10 (1978) establishes that the constitutional right to attend criminal trials does not “confer the right to replicate evidentiary materials in the custody of the court.” In re Providence Journal Co., 293 F.3d 1, 16 (1st Cir. 2002). The common law does, however, afford such rights, i.e., to inspect judicial documents which encompass “materials on which a court relies in determining the litigants’ substantive rights.” Id. Access to trial exhibits, such as “videotapes and audiotapes” played at trial, are protected by this common law right. Id. However, in the unusual if not unique situation where only “selected excerpts” of tapes are played for the jury and no compilation of such excerpts is available without creating an entirely new record, the trial court had no obligation to create a new record containing such excerpts or to permit it to be copied. Id. at 17 (“We are reluctant to hold that the common-law right of access necessarily compels the creation (and, thus, the copying) of such materials. We prefer instead to leave this decision, like many other decisions as to how best to effectuate the common-law right of access, to the informed discretion of the trial court, so that it may be exercised with due regard for the idiosyncratic facts and circumstances of a specific case.”).
The First Circuit held that “a blanket restriction on access to the records of cases ending in an acquittal, a dismissal, a nolle prosequi, or a finding of no probable cause is unconstitutional.” Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 510 (1st Cir. 1989).
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").
The Third Circuit has determined that materials introduced into evidence at trial are presumptively open under the common law right of access. In so ruling on common law grounds, the court did not decide whether the right also arises under the First Amendment. See United States v. Criden, 648 F.2d 814, 819–23 (3d Cir. 1981).
After its decision in Criden, the Third Circuit extended the common law right of access to trial materials and records not admitted into evidence. United States v. Martin, 746 F.2d 964, 968–69 (3d Cir. 1984). In Martin, the district court blocked public access to transcripts of recorded conversations that were played in court but not admitted into evidence. Id. at 968. In reversing the district court, the Third Circuit explained that the common law right of access “is not limited to evidence, but rather encompasses . . . ‘transcripts, evidence, pleadings, and other materials submitted by litigants.’” Id. (citing All Courts Shall Be Open: The Public’s Right to View Judicial Proceedings, 52 Temple L.Q. 311, 337–38 (1979)). Thus, the Third Circuit recognized a presumptive right of access to records and documents that are a component of trial.
“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)).
In an unpublished decision, the Fourth Circuit indicated that 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) (per curiam) (quoting Smith v. U.S. Dist. Court Officers, 203 F.3d 440 (7th Cir. 2000)). Although the court did not specify whether this right of access arises under the First Amendment or common law, at least one district court in the Fourth Circuit has concluded that written "trial transcripts presumably would be entitled to protection under the First Amendment," in addition to the common law. United States v. Cousins, 858 F. Supp. 2d 614, 617 n. 4 (E.D. Va. 2012) (citing In re Wash. Post Co., 807 F.2d 383 (4th Cir. 1986)).
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 also 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., 654 F.2d at 429.
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. Id. 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. Gurney, 558 F.2d at 1206.
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. Id. at 1211.
Presentence reports fall “outside the scope of both the First Amendment and the common law rights of access.” In re Morning Song Bird Food Litig., 831 F.3d 765, 773 (6th Cir. 2016) (citations omitted); see also In re Siler, 571 F.3d 604 (6th Cir. 2009) (holding that presentence reports are both not retained by courts, but instead are the custody of the U.S. Probation Office and not subject to the common law right of access to court records). In order to obtain access to a presentence report, the party seeking access “must make a showing of ‘special need’ to obtain the document.” Id. (citing U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 12 (1988)). This same rule applies to objections to the presentence report. Id.
In a pair of cases, In re Post-Newsweek Stations, MI, Inc., 722 F.2d 325, 327 (6th Cir. 1983) and United States v. Beckham, 789 F.2d 401, 403 (6th Cir. 1986), the media sought contemporaneous access “to copy tape-recordings that were admitted as evidence in a criminal trial, transcripts of these tape-recordings that were used by the jury, and documentary exhibits” under both the First Amendment and common law rights of access. The requested tapes had been played in open court and the transcripts, while provided to the jury, were not considered evidence in the case. Beckham, 789 F.2d at 403.
Initially, the media requested a writ of mandamus to compel “either a decision from the district court on their application for immediate access to inspect and copy audio- and videotapes admitted into evidence or used in an ongoing criminal trial, or a stay in the criminal proceedings until a decision was rendered.” In re Post-Newsweek, 722 F.2d at 327. In the initial appellate proceeding, the court found that that case was “not ripe for adjudication.” Id. at 328.
In Beckham, however, the court addressed the media’s constitutional and common law claims of contemporaneous access to copy the requested trial materials. 789 F.2d at 405. The court rejected the media’s constitutional arguments in favor of copying the requested trial materials, holding that “there is a difference between an opportunity to hear the tapes and access to the tapes themselves.” Id. at 409.
Relying upon Nixon v. Warren Communications, 435 U.S. 589 (1978), the court explained that when evaluating access under the common law right, the court must weigh “the interests advanced by the parties in light of the public interest and the duty of the court.” Beckham, 789 F.2d at 409 (citing Warren Commc’ns, 435 U.S. 602). There is a presumption in favor of access and there are multiple factors that a court should consider: (1) “a sensitive appreciation of the circumstances that led to their production;” (2) “the court’s supervisory powers;” (3) “the amount of benefit to the public from the incremental gain in knowledge that would result from hearing the tapes themselves;” (4) the degree of danger to the defendants or persons speaking on the tapes;” (5) “the possibility of improper motives on the part of the media such as promoting public scandal or gratifying private spite;” and (6) “any special circumstances in the particular case.” Id. (citations omitted). The balancing is a totality of the circumstances test. Id. In regard to the copying of the tapes and related transcripts, the court found that the district court properly applied the balancing test, taking into account all of the relevant facts and found that the trial court had not abused its discretion, especially since the media had access to the courtroom itself for the trials. Id. at 410–12.
The court, however, reached a different conclusion on the district court’s decision to permit inspection of documentary exhibits from the trial, but not to permit copying of them. Id. at 412. Because there were no substantial factors for the district court’s ruling, the court found that not permitting copying “was an unwarranted infringement on the common-law right to inspect and copy.” Id.
The court also clarified that “when the right to inspect and copy judicial records is equivalent to the right to learn the facts on the record, the fundamental right to know is at stake, and consequently, the trial court’s discretion must be narrowly restricted. However, when the right to make copies of tapes played in open court is essentially a request for a duplicate of information already made available to the public and the media, then the district court has far more discretion in balancing the factors. We do not believe a fundamental right is implicated as long as there is full access to the information and full freedom to publish.” Id. at 414–15.
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).
In United States v. McDougal, 103 F.3d 651, 657 (8th Cir. 1996), the Eighth Circuit found the common law right of access did not attach to a videotaped deposition of President Bill Clinton even though it had been played at trial. The Eighth Circuit also upheld the trial court’s decision to keep the videotape sealed, relying on the lower court’s finding that the public already had information about what the tape contained, that releasing it would be inconsistent with the ban on cameras in the courtroom, that tapes had not been released in the cases of other sitting presidents, and that the tape could be potentially misused. Id. at 658–59.
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).
The right to inspect trial exhibits does not encompass the right to “possess, test, and thoroughly examine” exhibits. “Such a request goes far beyond the inspection or copying of judicial records contemplated by common law and citizens' statutory rights of access to public records.” Lockhart v. State, 2021 Ala. Crim. App. LEXIS 45, at *73 (Crim. App. 2021) (on post-conviction relief appeal, denying criminal defendant’s request to possess and test murder weapon grounded in public right of access).
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.
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).
California recognizes a common law right of access to trial records, including the right to copy audiotapes played during the trial. KNSD Channels 7/39 v. Superior Court, 63 Cal. App. 4th 1200, 1204-1205, 74 Cal. Rptr. 2d 595 (1998). California courts also have recognized a constitutional right to access other criminal records, which presumably would extend to trial records and exhibits. E.g., People v. Connor, 115 Cal. App. 4th 669, 695, 9 Cal. Rptr. 3d 521 (2004).
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.
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). See also State v. Patel, 174 Conn. App. 298, 324, 166 A.3d 727, 744 (2017) (finding that copies of trial exhibits were (presumptively public) judicial documents, and accordingly striking order barring media from access as procedurally insufficient under § 42-49A).
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 applies the general rule that as a public event, "what transpires in the courtroom is public property." In re Nat'l Broad. Co., Inc. 653 F.2d 609 (D.C. Cir. 1981) (granting post-verdict access to video and audio tapes played to the jury at trial). The factors to be considered, in addition to the presumption in favor of access to judicial records, are (1) whether the records were admitted into evidence, (2) whether they were submitted to the jury, (3) whether the evidence was seen or heard by members of the public attending the trial, (4) the nature of the trial and/or the records sought, (5) potential prejudice to defendants if new trial is likely, and (6) possible injury to innocent third-parties. Id. However, because of the presumption of public access, a court must seek to ameliorate potential harm to defendants through procedural safeguards such as voir dire. Id.
The D.C. Circuit has provided access to various types of trial records. United States v. Thompson, No. 89-3160, 1989 WL 248625 (D.C. Cir. Oct. 13, 1989) (access provided to wiretap transcripts made “as soon as practicable after, if not simultaneously with, their presentation to the jury”); In re News World Commc’ns Inc., 17 Media L. Rep. 1001 (D.D.C. 1989) (common law right of access to transcripts of tape recordings introduced into evidence at criminal trial made as soon as practicable); In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (district court erred in denying television broadcasters' post-trial application to inspect and copy video and audio tapes introduced as evidence and played in open court during “Abscam” trial of former U.S. congressman; government made no showing that release of tapes would risk prejudice to defendant's hypothetical second trial). But see In re Wash. Post Co., 576 F. Supp. 76 (D.D.C. 1983) (court refused to unseal portions of bench conference transcripts in criminal cases because the unsealed portions were not evidence and would not be admissible as evidence, disclosure would have prejudicial effect on jurors and witnesses, and transcript would be automatically unsealed when verdict was returned by the jury).
District of Columbia
The fact that materials were “admitted into evidence and played to the jury,” according to the D.C. Circuit, “weighs heavily in favor” of unsealing. In re Nat’l Broad. Co., 653 F.2d 609, 614 (D.C. Cir. 1981). That is because “the general rule is that a trial is a public event and what transpires in the court room is public property.” Id. (internal quotation marks and alterations omitted). Where materials were not used at trial, however, that reasoning does not apply. See Tavoulareas v. Washington Post Co., 111 F.R.D. 653, 660 (D.D.C. 1986) (explaining, in a civil case, that materials not used at trial are subject to a different analysis than materials that were). The factors the D.C. Circuit laid out in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) are likely to govern the question of access to trial records in a criminal trial.
The public has a presumptive right of access to all trial records in the custody of the court, including case dockets, transcripts, exhibits filed with the court as evidence, motions, etc. See Sarasota Herald-Tribune v. State, 924 So. 2d 8 (Fla. Dist. Ct. App. 2005) (overturning closure order which excluded the media from viewing evidence formally introduced at criminal trial).
In Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1983), the Florida Supreme Court held that to justify closure of a criminal court record, including trial records, the proponent of closure must overcome the presumption of openness with the Lewis test. 426 So. 2d at 6.
In cases dealing with graphic crime scene or autopsy photographs, Florida courts in high profile cases have often fashioned a remedy that permits the press to review such evidence, but prohibits copying the photographs. See, e.g., Sarasota Herald-Tribune v. State, 924 So. 2d 8 (Fla. Dist. Ct. App. 2005).
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”).
“With respect to the right of access to judicial documents under article I, section 4 of the Hawai’i Constitution, the firmly embedded general policy of openness . . . also applies to the transcript of closed proceedings.” Oahu Publ’ns Inc. v. Ahn, 133 Hawai’i 482, 506, 331 P.3d 460, 484 (2014), as corrected (Aug. 5, 2014). “[A] complete record of those parts of the proceedings closed to the public shall be kept and made available to the public for a legitimate and proper purpose following the completion of trial or disposition of the case without trial.” Id. (citing Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 235, 580 P.2d 49, 57 (1978)). “‘Historically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.’” Id. (quoting Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 947 (9th Cir. 1998)).
“‘Historically, post-trial transcript access has been granted as soon as the factors which prompted hearing closure have been resolved.’” Id. (quoting Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 947 (9th Cir. 1998)).
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.
One Illinois circuit court has held that the public has a legitimate and important interest in accessing evidence that includes a record of the defendant’s statement. People v. Goodman, 29 Media L. Rep. (BNA) 1063 (Ill. Cir. Ct. 2000). Another Illinois circuit court expanded on the Goodman decision and recognized a right to gain access to crime scene videos and defendant’s statements exhibited during trial. People v. Phillips, 36 Media L. Rep. (BNA) 1510 (Ill. Cir. Ct. 2007). The Phillips court listed several factors that support a finding of access including: whether the recordings were exhibited at trial, whether the state or defendant requested to seal the proceedings, whether the state or defendant would have met the high threshold for sealing, and whether the trial had concluded at the time of the request. Id. The decision further established that once records have been exhibited in open court proceedings and entered into the court file, the right of access attaches to them. Id. Another Illinois circuit court extended the right of access to a 911 tape played at trial, given none of the concerns listed by the Seventh Circuit existed. People v. Balfour, 40 Media L. Rep. (BNA) 2000, 2001 (Ill. Cir. Ct. 2012) (citing factors for consideration from United States v. Edwards, 672 F.2d 1289, 1293 (7th Cir. 1982)). The Balfour court cited three factors that would rebut the presumption of access applied to the 911 tape: (1) whether the court had already permitted considerable public access to the contents of the records in question (e.g., by way of printed transcript, as opposed to tape recording); (2) whether granting the request would prejudice the due process rights of a criminal defendant; and (3) whether administrative and mechanical difficulties attending inspection and copying would disrupt the progress of the proceeding. Id. at 2001-2. Neither the Illinois appellate nor Supreme Court have addressed this issue.
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).
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)).
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”).
There should be no different standards for access to trial records trial than for access to pre-trial records. See “Pretrial motions and records” section above. Typically, such records are obtained simply by going to the clerk’s office (or the judge’s chambers) and asking for the record.
Admitted and proffered exhibits, including both documents and physical items, are part of the public record of a case, and while in the custody of the clerk’s office, are available for inspection and/or copying unless they are otherwise confidential. Public Information and Confidentiality, Admin. Order JB-05-20 § III(A)(7). Exhibits submitted to the clerk, but never proffered or admitted, will be made available to the submitting party, but are subject to inspection or copying while in the custody of the clerk’s office. Id. However, public copying or inspection may be limited by the terms of a protective order or by a judicial order or administrative order governing the handling of contraband or dangerous materials. Id.
There is a qualified First Amendment right of access to records filed in criminal actions. Baltimore Sun v. Thanos, 607 A.2d 565, 568 (Md. Ct. Spec. App. 1992) (finding First Amendment right of access to “[d]ocuments entered into evidence in criminal proceedings”). Additionally, records filed in connection with criminal trials (including trial exhibits and records marked for identification, but not admitted at trial) are presumptively open to the public under the Maryland Rules. Md. Rule 16-902(c) (defining “Case Records”); Md. Rule 16-903(d) (once exhibits are filed or marked by the court, they are presumptively subject to inspection “notwithstanding that the record otherwise would not have been subject to inspection under the Rules”).
In State v. WBAL-TV, 975 A.2d 909 (Md. Ct. Spec. App. 2009), the court found the right of access under the Maryland Rules “were sufficiently similar to a First Amendment claim.” Id. at 917. There, the Court of Special Appeals affirmed the lower court’s decision granting the media access to copies of a redacted videotaped and audiotaped confession that had been introduced into evidence during a criminal trial. The court held that under the prior version of Rule 16-902(c), the video and audiotapes were “Case Records” presumed open to the public for inspection, and those opposing access must demonstrate a “special and compelling reason” as to why the court should deny or limit inspection. Id. at 921–22. Recognizing that Article 47 of the Maryland Constitution required due consideration of the impact of access on victims of crimes, the court found that Article 47 did not provide victims with an absolute right to veto a request to access and copy court records that would otherwise be available under the Rules. Id. at 922–23. Nor did the fair trial rights of the defendant in a speculative future trial outweigh the public’s interest in access to court records. Id. at 924–26. Finally, the court held that the Rules permitted not only inspection, but also copying, of the relevant tapes, and that transcripts did not suffice as “copies” under the meaning of the Rules. Id. at 926.
The right of access to judicial records extends to trial records such as transcripts of proceedings, court briefs, and evidence. See, e.g., Republican Co. v. Appeals Ct., 812 N.E.2d 887, 892 n.8 (Mass. 2004) (citing Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir.1989)).
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.
Under Rule 4, the public does not have access to certain records including, but not limited to, domestic abuse records and other court records that have not been admitted into evidence but are simply intended to assist the court in (a) determining an individual’s need for counseling, (b) assigning an appropriate sentence, or (c) creating a psychological evaluation of an individual, etc. Id. 4, subd. 1. 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.
Missouri law sets forth when an accused’s case file may be closed:
If the person arrested is charged but the case is subsequently nolle prossed, dismissed, or the accused is found not guilty or imposition of sentence is suspended in the court in which the action is prosecuted, official records pertaining to the case shall thereafter be closed records when such case is finally terminated except as provided in subsection 2 of this section and section 610.120 and except that the court's judgment or order or the final action taken by the prosecutor in such matters may be accessed.
Mo. Ann. Stat. § 610.105 (West). In one case, the Missouri Court of Appeals held that a case was not “terminated” because the defendant had not completed his probation term, nor had that term been shortened by the trial court. State ex rel. Pulitzer Missouri Newspapers, Inc. v. Seay, 330 S.W.3d 823, 827 (Mo. Ct. App. 2011). Therefore, the file could not be closed. Id.
Documents publicly disclosed in open court ought to be public records. Neb. Rev. Stat. § 84 712.05 (Reissue 2008). The word “ought” is used intentionally. There is an argument, not resolved by case law, that a document that is required to be treated as confidential by some other statute does not become public under the Public Records Act by virtue of being disclosed in open court. There does not appear to be any such other statute that would make psychiatric reports generally confidential, although psychiatric reports prepared as part of a presentence report are confidential. See Section on “Post-trial records” below.
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.
New York courts recognize a common law right to “inspect and copy judicial records, including physical evidence.” People v. McCray, 147 Misc. 2d 1103, 1104 (Sup. Ct. 1990). “When physical evidence is in a form that permits inspection and copying without any significant risk of impairing the integrity of the evidence or interfering with the orderly conduct of the trial, only the most compelling circumstances should prevent contemporaneous public access to it.” Id. at 1104–05 (citing In re Application of Nat’l Broad. Co., Inc., 635 F.2d 945, 952 (2d Cir. 1980)). In McCray, the press sought access to graphic photographs of the victim that had been shown at trial. 147 Misc. 3d at 1106. The court permitted the press to examine the photographs, but did not allow them to be reproduced, citing concerns for the victim’s dignity and noting that the public had full access to information about the photographs and their contents by other means. Id.
All “case documents” are presumed open to public access. Case documents may only be sealed after a hearing in which the court determines that the clear and convincing evidence of prejudice to a party outweighs the right of access. See State ex rel. Cincinnati Enquirer v. Lyons, 14 N.E.3d 989 (Ohio 2014); State ex rel. Vindicator Printing Co. v. Wolff, 974 N.E.2d 89 (Ohio 2012).
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). As a result, the rules consider documents introduced at trial to be 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).
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 Rhode Island Supreme Court addressed access to trial records in Providence Journal Co. v. Rodgers, 711 A.2d 1131 (R.I. 1988), in the context of criminal cases involving sex crimes against minors. In that case the Rhode Island Supreme Court adopted a “dual filing” docket system for criminal cases involving sex crimes against minors. Under this system, the court is required to maintain a “public file” and a “confidential court file” during the prosecution and disposition of any case where a child is identified as the victim of a sexual assault. Id. at 1138. The “public file” must include versions of documents where the victims’ names and identifying facts are redacted, in order to protect child victims from further trauma. The “public file” “shall not include in any form, redacted or otherwise, victim-specific documents relating to the child victim that are otherwise confidential under the statutes and policies of our state. Such excluded documents include, but are not limited to, school records, medical records, reports from the Department of Children, Youth and Families, reports or records of counselors, therapists, and social workers . . . .” Id. (emphasis in original). This system has been codified in Rule 3.3 of the Superior Court Rules of Practice.
In a federal court case, In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002), a newspaper requested copies of edited videotapes and audiotapes played at trial. The trial court denied this request, and the First Circuit upheld the denial, in part because “the public and the press . . . had ample opportunity to see and hear the evidentiary tapes when those tapes were played in open court during trial” and thus satisfied the public’s right of access. Id. at 17-18.
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 trial records in the criminal context.
While trial is ongoing, the court will have exclusive access for parties, witnesses, and attorneys, and therefore there is no practical access for the public. However, once trial exhibits are admitted into evidence, they are presumed publicly available, although South Carolina, unlike other states, has not formally recognized this common law principle of access. Rule 606 of the South Carolina Appellate Court Rules provides that the clerk of court may temporarily release trial exhibits to any “person as may be ordered by the court.” Consequently, it is advised that any person make a request for coverage under Rule 605, SCACR, and note access to certain trial exhibits is also requested.
In criminal (non-death penalty) cases, the clerk of court must keep the trial exhibits for at least 18 months after verdict when the party who introduced the record is expected to reclaim it. Rule 606, SCACR. In civil cases, the clerk of court must keep the exhibits for 60 days after verdict or 60 days after an appellate court remands a case to circuit court. Rule 606, SCACR.
There is very little direct authority in Texas on public access to criminal trial records. But in a civil case about the publication of information heard in a criminal trial and entered into the court’s public record, the Texas Supreme Court agreed with the United States Supreme Court that “[a] trial is a public event. What transpires in the court room is public property.” Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 57 n.5 (Tex. 1992) (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)). In one civil case, the Supreme Court of Texas determined that an indictment, motion in limine, and jury charge became part of the public record once filed with the court in a criminal case. Star-Telegram, 834 S.W.2d at 57 & n.4 (citing Tex. Code Crim. Proc. Ann. art. 1.24). In that case, the victim allowed the prosecution to use her real name, as opposed to a pseudonym, during trial to increase the likelihood of a conviction. See id. at 56. This permission was conditioned upon the State’s promise to seal the court record afterwards to protect the victim’s privacy. See id. A member of the press challenged the eventual protective order. See id. The Supreme Court granted the challenger’s writ of mandamus and determined that trial court’s post-trial protective order closing the court records and expunging a victim’s name from them “could not retroactively abrogate the press’ right to publish public information properly obtained from open records.” Id.
The public’s presumptive right of access applies to criminal trial records. The public’s right in this context “serves many purposes, including ‘to educate the public about the workings of government,’ ‘to contribute to informed debate’, ‘to hold public officers and employees accountable,’ ‘to increase public confidence,’ and ‘to give notice of important claims, rights and obligations.’” Supernova Media, Inc. v. Shannon’s Rainbow, LLC, 2013 UT 7, ¶ 57, 297 P.3d 599 (quoting Utah Code Jud. Admin. 4-202(1)). Even if all parties agree to have their court records sealed, the “court has discretion to seal documents only if the public’s right of access is outweighed by competing interests,” including “protecting the integrity of ongoing investigations and proceedings, the privacy of those involved, the defendant’s right to a fair trial, public safety, and promot[ing] the rehabilitation of offenders, especially youthful offenders.” Id.¶ 58 (citations and internal quotations omitted) (alteration in original).
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).
The public’s right of access to judicial records includes the right to access exhibits entered into evidence in a judicial proceeding that lead to the judgment. See Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009) (citation omitted) (mental health report for sexually violent predator); see also Daily Press, Inc. v. Commonwealth, 285 Va. 447, 450, 739 S.E.2d 636, 638 (2013) (trial exhibits, including photographs and an autopsy report).
Where the public is improperly excluded from a criminal trial, any transcript or recording of the proceeding should be made available to the public. See Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 592-93, 281 S.E.2d 915, 925 (1981).
When an audio tape recording of a felony criminal trial is the only record of that trial, it is a judicial record as contemplated by the provisions of Virginia Code § 17.1-208 and, thus, open to inspection by the public. Smith v. Richmond Newspapers, Inc., 261 Va. 113, 118, 540 S.E.2d 878, 881 (2001).
Protecting original trial exhibits from damage is a valid concern but not sufficient to deny public access where the exhibits can be copied. See Daily Press, Inc. v. Commonwealth, 285 Va. 447, 455–56, 739 S.E.2d 636, 641 (2013).
The Fourth Circuit has held that 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 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).
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 court records/In general” above. This rule applies to trial records in the criminal context. State ex rel. Garden State Newspapers v. Hoke, 205 W. Va. 611, 616, 621, 520 S.E.2d 186, 191, 196 (1999).
Trial records are presumptively open in Wyoming, unless a specific statute requires sealing of the record. The Wyoming Supreme Court had recently adopted rules regarding access to court records and redaction of court records, effective January 1, 2010. After receiving numerous questions and concerns regarding the new rules, the Court rescinded the rules pending further review. The rescinded rules contained a list of records made confidential by statute. The redaction rules required that financial information, birth dates, and addresses be redacted from all court records, except for arrest warrants and charging documents, including supporting affidavits.