H. Post-trial records
The public has a First Amendment right of access to sentencing memoranda and the exhibits attached thereto. See United States v. Stier, No. 2:17-cr-00054, 2018 WL 1787888, *3 (S.D.W. Va. Apr. 13, 2018) (citing In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986)).
An interest in protecting the physical and psychological well-being of individuals related to the litigation, including family members and particularly minors, was sufficient to overcome the public’s right of access to a sentencing memorandum and justify redacting the names of the defendant’s wife and child and their photographs. See United States v. Harris, 890 F.3d 480, 492 (4th Cir. 2018) (reversing order denying defendant’s motion to seal sentencing memorandum and remanding with instructions to allow the defendant to file the full memorandum under seal and a redacted version available to the public).
The public has a right of access to records filed in connection with a motion to vacate a plea agreement. See United States v. Anderson, No. 1:11-cr-231, 2015 WL 11111065, *1 (E.D. Va. Mar. 16, 2015), aff'd, 607 F. App'x 314 (4th Cir. 2015).
The Superior Court of Pennsylvania has recognized that the federal courts hold “that the public, and consequently the press, have a qualified First Amendment right of access to sentencing proceedings,” and Pennsylvania follows this holding. Commonwealth v. Martinez, 917 A.2d 856, 861 n.9 (Pa. Super. 2007). Thus, the court held that “[g]iven the open nature of criminal trials, and sentencing proceedings in particular, we find that letters submitted to a sentencing court by defense counsel at the time of sentencing, which the sentencing court explicitly reviews in preparation for sentencing, are public judicial documents regardless of whether the sentencing court formally dockets the letters.” Id. at 861-62; see also Commonwealth v. Dominick, 40 Pa. D. & C. 5th 347, 350-52 (Lackawanna Cty. C.C.P. Sept. 3, 2014) (citing Martinez for the proposition that letters to a sentencing court are public judicial documents even if not docketed).
The Vermont Supreme Court has held that “a presumption of openness prevails and that documents submitted by the parties in sentencing hearings are subject to a qualified right of inspection by the public.” State v. Densmore, 160 Vt. 131, 136, 624 A.2d 1138, 1141 (Vt. 1993) (noting that “[p]ublic access to sentencing hearings, and to documents filed in connection therewith, plays an important role in the sentencing process”). This right is not absolute, however, and access may be denied if a three-part test is satisfied: “if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest.” Id. at 138, 624 A.2d at 1142.
Moreover, the Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[a] presentence investigation report as provided in Chapter 5 of Title 28 and Rule 32(c) of the Vermont Rules of Criminal Procedure.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(6); see also 28 V.S.A. § 204(d)-(f); State v. LaBounty, 702 A.2d 82, 86, 167 Vt. 25, 31-32 (Vt. 1997) (holding no First Amendment right of access attaches to pre-sentence investigation reports prepared for use in state sentencing hearings). There are no other exceptions in the Vermont Rules for Public Access to Court Records regarding post-trial records, thus other post-trial records are presumptively open to the public.
Vermont Rule of Criminal Procedure 53.1 also 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).