VII. Jury and grand jury access

Following the United States Supreme Court’s decision in Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 2735 (1984), California courts have recognized a First Amendment-based right of access to jury selection proceedings and questionnaires. E.g., Pantos v. City and County of San Francisco, 151 Cal. App. 3d 258, 262-263, 198 Cal. Rptr. 489 (1984); see Alfaro v. Superior Court, 58 Cal. App. 5th 371, 384-394, 272 Cal. Rptr. 3d 404 (2020) (affirming “the presumption of public access to names and zip codes appearing on master and qualified jury lists”). California limits the disclosure of jurors’ personal identifying information, but provides a procedure for seeking that information by petition. See Cal. Code Civ. Proc. § 237. The trial court has broad discretion to decide whether or not to grant access if any juror objects. See People v. Zamora, 73 Cal. App. 5th 1084, 1091-1092, 288 Cal. Rptr. 3d 878 (2022).

Jury selection is presumptively open to the public and press. Ukiah Daily Journal v. Superior Court, 165 Cal. App. 3d 788, 791, 211 Cal. Rptr. 673 (1985). The presumption can only be overcome if the trial court makes express findings that closure is necessary to preserve an overriding interest, and the closure order is narrowly tailored. Id. General concerns about potential jurors being less candid, or being influenced by the statements of other potential jurors, are not a sufficient overriding interest. Id. at 792-793.

California courts have declined to recognize any constitutional or common law right of access to grand jury proceedings or materials, which generally are kept confidential. See Daily Journal Corp. v. Superior Court, 20 Cal. 4th 1117, 1128-1129, 979 P.2d 982, 86 Cal. Rptr. 2d 623 (1999) (trial court had no authority to release grand jury materials except as provided by statute). However, a statute creates a right of access to some grand jury materials following an indictment. See Cal. Penal Code § 938.1(b).

No presumptive right of public access attaches to jury and grand jury deliberations proper. However, proceedings regarding the selection and administration of juries and grand juries are presumptively open.

“Grand jury proceedings are intended, to the extent possible, to be secret.”  In the Matter of the Petition for Review of Hearing Comm. of the Prof’l Conduct Bd. of the Idaho State Bar, 140 Idaho 800, 805, 102 P.3d 1119, 1124 (2004).

Access to jury information is somewhat limited to protect juror safety and privacy. See Jury Rule 10. Grand jury access is likewise limited given the policies behind grand jury secrecy, including preventing the escape of those who may be indicted and preventing attempts to influence grand jurors or witnesses. Hinojosa v. State, 781 N.E.2d 677, 681 (Ind. 2003).

Generally, the proceedings and records of a grand jury are closed, while trial jury (petit jury) selection and records relating to jury selection are public. All jury deliberations are conducted in secret.

Montana rarely commences criminal proceedings through a grand jury.  Almost all criminal prosecutions are initiated by an information containing an affidavit of probable cause filed by the prosecution.  The affidavit and information are open for inspection.

A “presumption of openness” applies to pretrial jury voir dire proceedings. Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). Because openness enhances both fairness and the appearance of fairness, this presumption allowing public access may be overcome only by an overriding interest based on findings that closure is: (1) essential to preserve higher values; and (2) is narrowly tailored to serve that interest. Press-Enterprise Co., 464 U.S. at 510; § 6:11. Openness of voir dire proceedings, Trial Handbook for South Carolina Lawyers § 6:11 (5th ed.).

Texas courts recognize a constitutional right of access to voir dire proceedings, and only permit closure when narrowly tailored to protect competing interests of higher value.  See Woods v. State, 383 S.W.3d 775, 779 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (quoting Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 510 (1984)); In re A.J.S., 442 S.W.3d 562, 566–67 (Tex. App.—El Paso 2014, no pet.) (“The public trial right extends not only to the guilt-innocence phase of trial, but to voir dire as well.”); Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (collecting United States Supreme Court cases on the issue and permitting court access to voir dire proceedings).

Jury deliberations are secret and closed to the public.  State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 209 n.7 (Tex. Crim. App. 2003) (“[W]e do not allow the parties or the public to impeach that verdict with evidence of what occurred between the jurors in the sanctity of that jury deliberation room.”); Tex. Code Crim. Proc. Ann. art. 36.22.

The same is true for all grand jury proceedings.  See San Antonio Express-News v. Roman, 861 S.W.2d 265, 267 n.1 (Tex. App.—San Antonio 1993, orig. proceeding); Tex. Code Crim. Proc. Ann. art. 20.011.  Transcripts and testimony from grand jury proceedings must generally be kept secret, but may, under certain circumstances, be disclosed by a court.  See Stern v. State ex rel. Ansel, 869 S.W.2d 614, 622 (Tex. App.—Houston [14th Dist.] 1994, writ denied).  Further, grand jury testimony is discoverable under certain circumstances in civil cases.  See Lesher v. Coyel, 435 S.W.3d 423, 430 n.3 (Tex. App.—Dallas 2014, pet. denied) (citing Euresti v. Valdez, 769 S.W.2d 575, 579 (Tex. App.—Corpus Christi 1989, no writ)).

Following the United States Supreme Court decision in Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 104 S. Ct. 2735 (1984), West Virginia courts have recognized a First Amendment-based right of access to jury selection proceedings and questionnaires. E.g., Daily Gazette Co. v. Comm. on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 364, 326 S.E.2d 705, 710 (1984). West Virginia limits the disclosure of jurors’ personal identifying information but provides a procedure for seeking that information by petition. See W. Va. Trial Ct. R. 8.10.