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Connecticut

Open Courts Compendium

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Author

Dan Barrett, Elana Bildner, and Grace Sinnott
ACLU Foundation of Connecticut
765 Asylum Avenue
Hartford, CT 06105

With thanks to Geraldo Parrilla, Quinnipiac University School of Law ’19.

Last updated Oct. 29, 2019.

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

There are two kinds of courts in Connecticut: state and federal.  Each has its own rules and case law governing public access; some of the federal case law binds the state courts but not vice versa (because of U.S. Const. art. 6, the Supremacy Clause).  The state court system has three levels: the Superior Court (trial-level, located in about twenty locations around the state); the Appellate Court (appeals court to which almost every superior court case has a right to go after decision, located in Hartford); and the Supreme Court (the final say on appeals; almost all cases must be given permission to be heard here; located in Hartford).  Although the state court system hears two kinds of cases (civil and criminal), it breaks the category of civil cases down into many sub-categories and at the trial level hears some of them in separate sessions, such as family, complex litigation, housing, small claims, and probate.

The federal system also has three levels: the District Court (trial-level, located in Hartford, New Haven, and Bridgeport with cases randomly assigned to each); the U.S. Court of Appeals for the Second Circuit (appeals court binding Connecticut, Vermont, and New York to which almost every district court case may go if desired; located in lower Manhattan); and the Supreme Court (where virtually no case goes without permission; decides only about 80 cases a year).  The federal system divides cases into one of two categories, civil or criminal, and all are heard by the same judges on the same docket.  The national government also operates the bankruptcy court (called the United States Bankruptcy Court for the District of Connecticut), which hears only specific matters relating to the sorting-out of debts; there is one bankruptcy judge in Hartford, New Haven, and Bridgeport.  Lastly, the executive branch operates something colloquially referred to as “immigration court,” which is not a court but an administrative hearing mechanism within the Department of Justice.  Hearings occasionally occur in the Hartford federal building (450 Main Street), but as of this writing have almost exclusively been moved to the Kennedy buildings on New Sudbury Street in Boston, Massachusetts.

Connecticut’s courts have recognized the presumption of open court proceedings as “a fundamental principle of our judicial system” dating back to the legal system of the state’s former colonial ruler, Great Britain.  Doe v. Conn. Bar Examining Comm., 263 Conn. 39, 65, 818 A.2d 14, 31 (2003); see also State v. Kelly, 45 Conn. App. 142, 148, 695 A.2d 1, 4 (1997) (noting that courtroom closure should be “sparingly granted” because the openness of the judicial system “enhances the basic fairness of that system”).

The federal court system recognizes that both federal decisional law and the First Amendment guarantee public access to courts, although the access depends upon the type of court proceeding occurring.  See generally, e.g., United States v. Doe, 63 F.3d 121, 125–26 (2d Cir. 1995).  As in the state system, closure of court proceedings is generally viewed as a rare, extreme measure.

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B. Overcoming a presumption of openness

In 2003, Connecticut codified the presumption of openness, formally extending it to both civil and criminal courts, as well as records of court proceedings. It also established a procedure courts must follow in order to close proceedings or seal documents.

As of that time: In civil, criminal, and family cases, the court may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. (“Practice Book”) § 11-20(c) (civil); id. § 42-49(c) (criminal); id. § 25-59(c) (family).  Any closure order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.”  Id. § 11-20(c) (civil), id. § 42-49(c) (criminal), id. § 25-59(c) (family).

Probate proceedings (disposition of estates, trusts, whether a person needs a conservator or guardian, or commitment of adults for psychiatric or substance abuse disorder) are open by default, although certain aspects may be subject to closure by statute.  Conn. R. Probate P. 16.1.  They may be closed if “necessary to preserve an interest that overrides the public interest in open court proceedings,” “there are no reasonable alternatives to closure,” and closure “is no broader than necessary to protect the overriding interest.”  Conn. R. Probate P. 16.8(a).  The parties’ agreement to close the courtroom cannot suffice to order it closed.  Conn. R. Probate P. 16.8(b).

Juvenile delinquency proceedings (adjudicating allegations that children have committed crimes) are closed except as to complaining witnesses.  Conn. Gen. Stat. § 54-76h(b).

In federal civil proceedings to which a First Amendment right of access applies (which is most), “the Court must make particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).  In federal criminal proceedings, the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.”  D. Conn. Local Crim. R. 57(b)(1)(A).

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C. Procedural prerequisites to closure

A party wishing to close a superior courtroom must file a motion asking for closure.  In civil and family cases, the motion must be filed fourteen days before the closure sought, Conn. R. Super. Ct. § 11-20(e) (civil); id. § 25-59(e) (family).  In criminal ones, the motion can be filed at any time.  Id. § 42-49(e).  In probate cases, a closure motion must be filed “at least three business days before” the closure sought.  Conn. R. Probate P. 16.6(a).

Hearings on motions to close civil, criminal, or family proceedings must be listed for the public on the court’s docket and clerk’s offices’ billboards.  Id. § 11-20(e) (civil), id. § 25-59(e) (family), id. § 42-49(e) (criminal).  Hearings on motions to close civil or family proceedings must also be posted on the state judiciary’s website.  Id. § 11-20(e) (civil); id. § 25-59(e) (family).  Probate closure motion hearings must be posted “at a location in or adjacent to the court that is accessible to the public,” and the court has discretion to “give notice by another method if necessary to notify the public of the hearing.”  Conn. R. Probate P. 16.7(a).

Family, criminal, or civil closure motions must be heard by the court so as “to afford the public an opportunity to be heard on the motion under consideration.”  Conn. R. Super. Ct. § 11-20(e) (civil), id. § 25-59(e) (family), id. § 42-49(e) (criminal).  Hearings on probate closure motions are open to the public, Conn. R. Probate P. 16.9(a), and “[a]ny person whom the court determines to have an interest in the proceeding may present evidence and argument concerning the public and private interests at issue.”  Conn. R. Probate P. 16.7(b).

Unless specifically otherwise allowed by statute, any family, civil, or criminal order excluding the public from a proceeding may not take effect fewer than seventy-two hours after it has been issued.  Id. § 11-20(f) (civil), id. § 25-59(e) (family), id. § 42-49(f) (criminal).

An order closing a civil or criminal proceeding must identify “the overriding interest being protected [by closure] and shall specify its findings underlying such order,” must be docketed, posted online, and on the clerk’s office bulletin board.  Conn. R. Super. Ct. § 11-20(d) (civil), id. § 42-49(d) (criminal).  Either the closure order must be written, or, the court must prepare a transcript of its verbal order and docket the transcript.  Id. § 11-20(d) (civil), id. § 42-49(d) (criminal).

Any order closing a probate proceeding must identify “the interest being protected that overrides the public interest in open court proceedings,” the “the alternatives to closure . . . that the court considered and the reasons why the alternatives were unavailable or inadequate,” the reasons why the closure order “is no broader than necessary to protect the interest that overrides the public interest,” and the “the scope and duration of the order.”  Conn. R. Probate P. 16.8(c).

Anyone affected by a civil or criminal closure order has the right to appeal the order to the state’s mid-level appellate court within seventy-two hours; an appeal stays the closure order.  Conn. R. Super. Ct. § 11-20(f) (civil), id. § 42-49(f) (criminal).  The rules do not provide the same appeal right or automatic stay for a family court closure order.  See id. § 25-59(f).

In a federal civil proceeding, a motion to close the courtroom “shall be made as far in advance of the pertinent proceeding as possible in order to permit the public to intervene for the purpose of challenging the court closure,” and any order closing the courtroom generally may not take effect “except upon advance notice to the public.”  D. Conn. Local Civ. R. 5(e)(1)(b).  In civil proceedings to which a First Amendment right of access applies (which is most), “the Court must make particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(a).

In a federal criminal proceeding, any motion to close the courtroom “must be made as far in advance of the pertinent proceeding as possible to permit any member of the public to intervene for the purpose of challenging any such order.”  D. Conn. Local Crim. R. 57(b)(1)(B).  The court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.”  D. Conn. Local Crim. R. 57(b)(1)(A).

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

Courts have generally recognized that, as surrogates of the public, journalists and news outlets have standing to challenge a court’s order sealing records or closing proceedings. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (1982) (“[R]epresentatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’”) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).

At the trial level in the state courts, there is no specific mechanism for media to challenge court closures or motions to seal. In the past, media organizations have either filed motions to intervene in proceedings to close or seal, or have simply testified at the required statutory hearing on a motion to close or seal. Conn. R. Super. Ct. § 11-20(e) (civil), id. § 25-59(e) (family), id. § 42-49(e) (criminal).

In Connecticut federal trial court, anyone—press or otherwise—may ask at any time for a sealed document or closed proceeding in a civil case to be opened or unsealed.  D. Conn. Local Civ. R. 5(e)(6).

Once a sealing/closure order is issued by the superior court, anyone affected by a civil or criminal closure order has the right to appeal the order to the state’s mid-level appellate court. Conn. Gen. Stat. § 51–164x. They must do so within seventy-two hours from the issuance of the order; an appeal stays the closure order.  Conn. R. Super. Ct. § 11-20(f) (civil), id. § 42-49(f) (criminal).  The rules do not provide the same appeal right or automatic stay for a family court closure order.  See id. § 25-59(f).

Anyone—press or otherwise—wishing to contest a District of Connecticut sealing or closure order must appeal to the Second Circuit, which generally gives opportunities to be heard on such questions.  E.g., Trump v. Deutsche Bank AG, 940 F.3d 146 (2d Cir. 2019).

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B. Procedure for requesting access in criminal cases

At the trial level, there is no specific mechanism for media to challenge court closures or motions to seal. In the past, media organizations have either filed motions to intervene in proceedings to close or seal, or have simply testified at the required statutory hearing. Conn. R. Super. Ct. § 42-49(e) (criminal).

Once a sealing/closure order is issued: Anyone affected by a civil or criminal closure order has the right to appeal the order to the state’s mid-level appellate court. Conn. Gen. Stat. § 51–164x. They must do so within seventy-two hours from the issuance of the order; an appeal stays the closure order.  Conn R. Super. Ct. § 42-49(f) (criminal).

In Connecticut federal trial court, anyone—press or otherwise—may ask at any time for a sealed document or closed proceeding in a criminal case be normally docketed or opened by “mov[ing] for leave to intervene for the limited purpose of pursuing that relief.”  D. Conn. Local Crim. R. 57(b)(9)(A).  Anyone wishing to contest a District of Connecticut sealing or closure order must appeal to the Second Circuit, which generally gives opportunities to be heard on such questions.  E.g., Trump v. Deutsche Bank AG, 940 F.3d 146 (2d Cir. 2019).

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C. Procedure for requesting access in civil matters

At the trial level, there is no specific mechanism for media to challenge court closures or motions to seal. In the past, media organizations have either filed motions to intervene in proceedings to close or seal, or have simply testified at the required statutory hearing. Conn. R. Super. Ct. § 42-49(e) (criminal).

Once a sealing/closure order is issued: Anyone affected by a civil or criminal closure order has the right to appeal the order to the state’s mid-level appellate court. Conn. Gen. Stat. § 51–164x. They must do so within seventy-two hours from the issuance of the order; an appeal stays the closure order.  Conn R. Super. Ct. § 42-49(f) (criminal).

In Connecticut federal trial court, anyone—press or otherwise—may ask at any time for a sealed document or closed proceeding in a criminal case be normally docketed or opened by “mov[ing] for leave to intervene for the limited purpose of pursuing that relief.”  D. Conn. Local Crim. R. 57(b)(9)(A).  Anyone wishing to contest a District of Connecticut sealing or closure order must appeal to the Second Circuit, which generally gives opportunities to be heard on such questions.  E.g., Trump v. Deutsche Bank AG, 940 F.3d 146 (2d Cir. 2019).

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D. Obtaining review of initial court decisions

Anyone affected by a superior court civil or criminal closure order has the right to appeal the order to the state’s mid-level appellate court. Conn. Gen. Stat. § 51–164x. They must do so within seventy-two hours from the issuance of the order; an appeal stays the closure order.  Conn. R. Super. Ct. § 11-20(f) (civil), id. § 42-49(f) (criminal).  The rules do not provide the same appeal right or automatic stay for a family court closure order.  See id. § 25-59(f).  Media organizations and journalists have routinely filed appeals as “affected” entities or persons. No reported case law defines the “anyone affected” language.

Anyone wishing to contest a District of Connecticut sealing or closure order must appeal to the Second Circuit, which generally grants opportunities to be heard on such questions.  E.g., Trump v. Deutsche Bank AG, 940 F.3d 146 (2d Cir. 2019).

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III. Access to criminal proceedings

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A. In general

State criminal proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal criminal proceedings, the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.”  D. Conn. Local Crim. R. 57(b)(1)(A).

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B. Pretrial proceedings

State criminal proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id. Even before this codification, the Connecticut Supreme Court specifically recognized a presumption of openness that extended to pretrial criminal proceedings. See State v. Kelly, 45 Conn. App. 142, 145, 695 A.2d 1, 3 (1997) (“A right of public access to pretrial criminal proceedings has been recognized by the United States Supreme Court and this court.”) (citing Press–Enterprise v. Superior Court478 U.S. 1 (1986); State v. Franzese, 23 Conn. App. 433, 580 A.2d 538 (1990)).

Note: Connecticut has largely abandoned the use of grand juries, which are not necessary for criminal prosecution. In the event one is impaneled to decide whether a person should be charged with a crime, the proceedings are closed to everyone aside from the prosecutor(s), witness(es), and jurors. E.g., State v. Canady, 187 Conn. 281, 290 (1982).

In federal criminal proceedings—regardless of phase—the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.”  D. Conn. Local Crim. R. 57(b)(1)(A).

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C. Criminal trials

State criminal proceedings are presumed open at all phases and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal criminal proceedings—at any stage—the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.”  D. Conn. Local Crim. R. 57(b)(1)(A).

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D. Post-trial proceedings

State criminal proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal criminal proceedings—at any stage—the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.”  D. Conn. Local Crim. R. 57(b)(1)(A).

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E. Appellate proceedings

Appellate proceedings are presumed open.  See Conn. R. App. P. § 70-9.  The sole exception is appellate court proceedings involving juvenile matters. These may be closed to those “whose presence is unnecessary,” at the discretion of the court. Conn. R. App. P. § 79a-13.  There is also a presumption that appellate proceedings may be covered by camera or electronic media. See Conn. R. App. P. § 70-9 (coverage by camera/electronic media).

The federal court system recognizes that both federal decisional law and the First Amendment guarantee public access to courts, although the access depends upon the type of court proceeding occurring.  See generally, e.g., United States v. Doe, 63 F.3d 121, 125–26 (2d Cir. 1995).  Closure of appellate proceedings is generally viewed as a rare, extreme measure.

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IV. Access to criminal court records

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A. In general

In both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in criminal cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

Accordingly, in state court, criminal filings are presumed to be publicly available, with limited exceptions. Conn. R. Super. Ct. § 42-49A. As with access to criminal proceedings more generally, records may be sealed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest” viewing the materials, and only after the court “first consider[s] reasonable alternatives to” sealing.  Id.  Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.”

Conn. Gen. Stat. § 51–164x(c) authorizes appellate review of sealing orders.  See State v. Patel, 174 Conn. App. 298, 320, 166 A.3d 727, 741 (2017) (striking, as procedurally insufficient under Conn. R. Sup. Ct. § 42–49A, order barring media access to copies of trial exhibits).

Connecticut’s judicial branch website maintains a criminal case look-up function (https://jud.ct.gov/crim.htm) that is searchable by both last name and/or docket number. It can be used to search for both pending cases and conviction histories.  Charges ending in a resolution other than conviction (acquittal, dismissal, nolle prosequi, diversion, accelerated rehabilitation) are not listed online.  Conn. Gen. Stat. § 54-56L(c) (diversion), id. § 54-142a (all other dispositions).

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).

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B. Arrest records

Though state arrest warrants are presumed to be public, their supporting affidavits may—upon “good cause shown”—be sealed at the request of the prosecutor. Conn. R. Super. Ct. § 36-2(b). Such a sealing order must, however, be time-limited, not normally to exceed two weeks.  Arrest warrants for certain violations are also searchable via the judicial branch website at https://www.jud2.ct.gov/VOP/.

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).

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C. Dockets

State law recognizes that “every case filed in the superior court shall be identified as existing in the records of the court by docket number and by the names of the parties, and this information shall be available to the public,” Conn. R. Super. Ct. § 7-4a, unless a statute or sealing order provides otherwise.  Additionally, the First Amendment provides the same qualified right to inspect court dockets (listings of cases and parties) as it does to inspect things filed with the courts.  Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004).

Note that Connecticut’s judicial branch website maintains a case look-up function (https://jud.ct.gov/crim.htm) that is searchable by both last name and/or docket number. The charges and dispositions, if any, will appear, but not the full docket.

In Connecticut federal trial court, judicial documents in criminal cases (including the very docket entries themselves) 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).

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In cases of arrest without a warrant, assuming the person is still in custody post-arraignment, Connecticut law requires a probable cause hearing. Affidavits submitted for that hearing are presumptively public. Conn. R. Super. Ct. § 37-12(d). The judge presiding at that hearing may order the materials sealed only for good cause, via a process laid out by statute. Conn. R. Super. Ct. § 37-12(b), (c).

As for other pretrial documents: 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). Noting that the Connecticut Appellate Court had, on this basis, already held that the presumption of openness includes pretrial documents, the Court assumed, without deciding, that a pretrial witness list in a criminal case would normally be subject to disclosure. Id. (Nevertheless, it ultimately upheld nondisclosure against the media intervenors’ request, citing concerns about a fair trial).

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).

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E. Discovery materials

Discovery materials are generally exchanged between the parties to a court action and not filed with the court; in those instances a person seeking access to them must use either the state or federal freedom of information acts to obtain them (although Connecticut’s prosecutorial arm is largely exempt from the act under Conn. Gen. Stat. § 1-201).

However, if discovery materials are filed with a court (typically in support of a motion or other request for the court to do something), they may become “judicial documents,” to which the public has access.  In state court, the presumption of openness codified at Conn. R. Super. Ct. § 42-49A applies to all such records, 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).

In federal 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).

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F. Pretrial motions and records

In cases of arrest without a warrant, assuming the person is still in custody post-arraignment, Connecticut law requires a probable cause hearing. Affidavits submitted for that hearing are presumptively public. Conn. R. Super. Ct. § 37-12(d). The judge presiding at that hearing may order the materials sealed only for good cause, via a process laid out by statute. Conn. R. Super. Ct. § 37-12(b), (c).

As for other pretrial documents: 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). Noting that the Connecticut Appellate Court had, on this basis, already held that the presumption of openness includes pretrial documents, the Court assumed, without deciding, that a pretrial witness list in a criminal case would normally be subject to disclosure. Id. (Nevertheless, it ultimately upheld nondisclosure against the media intervenors’ request, citing concerns about a fair trial).

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).

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G. Trial records

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).

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H. Post-trial records

In state court, as with all other types of filings, post-trial records enjoy the presumption of openness codified at Conn. R. Super. Ct. § 42-49A applying 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, post-trial filings 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).

State appellate records are presumed available to the public. Conn. R. App. Ct. § 77-3. Even before this codification, Connecticut had recognized the presumptive openness of appellate records. See State v. Ross, 543 A.2d 284 (Conn. 1988) (recognizing right of access to a criminal trial transcript filed with the appellate court, as part of appellate court record).  As with superior court records, appellate records may only be sealed “only if the court concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such document.”  Conn. R. App. P. 77-3(c).  An order to seal records may be made only after hearing, with notice to the public. Conn. R. App. Ct. § 77-4.

In both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in criminal cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

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I. Appellate records

State appellate records are presumed available to the public. Conn. R. App. Ct. § 77-3. Even before this codification, Connecticut had recognized the presumptive openness of appellate records. See State v. Ross, 543 A.2d 284 (Conn. 1988) (recognizing right of access to a criminal trial transcript filed with the appellate court, as part of appellate court record).  As with superior court records, appellate records may only be sealed “only if the court concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such document.”  Conn. R. App. P. 77-3(c).  An order to seal records may be made only after hearing, with notice to the public. Conn. R. App. Ct. § 77-4.

In both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in criminal cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

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J. Other criminal court records issues

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V. Access to civil proceedings

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A. In general

Like criminal proceedings, civil proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 11-20(c) (civil, generally); § 25-59(c) (family). Any closure order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal civil proceedings to which a First Amendment right of access applies (which is most), “the Court must make particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).

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B. Pre-trial proceedings

In state court, pre-trial proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any closure order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal court, pre-trial proceedings to which a First Amendment right of access applies (which is most), are open unless “the Court . . . make[s] particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).

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C. Trials

Civil proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal court, civil trials to which a First Amendment right of access applies (which is most), are open unless “the Court . . . make[s] particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).

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D. Post-trial proceedings

Civil proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal court, post-trial proceedings to which a First Amendment right of access applies (which is most), are open unless “the Court . . . make[s] particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).

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E. Appellate proceedings

Appellate proceedings are presumed open. The sole exception is appeals from juvenile matters. These may be closed to those “whose presence is unnecessary,” at the discretion of the court. Conn. R. App. Ct. § 79a-13.

There is also a presumption that appellate proceedings may be covered by camera or electronic media. A separate Practice Book provision provides further detail. See Conn. R. App. Ct. § 70-9 (coverage by camera/electronic media).

The general First Amendment right of access should apply to appellate court proceedings under the Press-Enterprise test, which holds that access is protected if (1) history shows that the appellate proceeding is the kind usually conducted in public and (2) experience shows that public access is beneficial to the proceeding.  Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986).

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VI. Access to civil records

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A. In general

In both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

Connecticut’s courts presume civil case records to be open to the public.  Conn. R. Super. Ct. §§ 11-20A(a), (b). As with access to civil proceedings more generally, records may be sealed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest” viewing the materials, and only after the court “first consider[s] reasonable alternatives to” sealing.  Id.  Any sealing order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the records shall be sealed “shall not constitute a sufficient basis for the issuance of such an order.” Id. § 11-20A(c).

The District of Connecticut’s rules mandate that “[n]o judicial document shall be filed under seal, except upon entry of an order of the Court” that “include[s] particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons,” while forbidding sealing “merely by stipulation of the parties.”  D. Conn. Local Civ. R. 5(e)(3).

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B. Dockets

State law recognizes that “every case filed in the superior court shall be identified as existing in the records of the court by docket number and by the names of the parties, and this information shall be available to the public,” Conn. R. Super. Ct. § 7-4a, unless a statute or sealing order provides otherwise.  Additionally, the First Amendment provides the same qualified right to inspect court dockets (listings of cases and parties) as it does to inspect things filed with the courts.  Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004).

In state cases, parties may not proceed under pseudonyms in civil matters unless they demonstrate that theirs is the “rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest.”  Buxton v. Ullman, 147 Conn. 48, 60, 156 A.2d 508, 515 (1959).  Nowadays, that inquiry is phrased as whether the person seeking anonymity “has a substantial privacy right which outweighs the customary . . . presumption of openness in judicial proceedings.”  Doe v. Connecticut Bar Examining Comm., 263 Conn. 39, 69-70, 818 A.2d 14, 34 (2003) (internal quotation omitted).  The state courts have found such an outweighing, for example, where a plaintiff with a medical condition making childbearing dangerous challenged the state’s then-existing prohibition on contraception, Buxton v. Ullman, 147 Conn. 48, 52–53, 156 A.2d 508, 511 (1959), where the plaintiff alleged to have been sexually assaulted by clergy as a child, Doe v. Diocese Corp., 43 Conn. Supp. 152, 161, 647 A.2d 1067, 1072 (Super. Ct. 1994), and where an indigent person in need of abortion services challenged the state Medicaid program’s restriction of funding for such services.  Doe v. Maher, 40 Conn. Supp. 394, 395, 515 A.2d 134, 135 (Super. Ct. 1986).

In federal cases, parties generally may not proceed under pseudonyms unless, among other things, the case (1) involves matters that are “highly sensitive and of a personal nature,” (2) “poses a risk of retaliatory physical or mental harm to the . . . party seeking to proceed anonymously or even more critically, to innocent non-parties,” (3) presents other harms, particularly where they would “be incurred as a result of the disclosure of the plaintiff's identity,” (4) involve a particularly vulnerable party seeking to hide his or her identity, (5) where the suit challenges the actions of private parties or the government, (6) the parties’ identities have thus far been kept confidential, or (7) where no suitable alternatives to secrecy exist.  Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189–90 (2d Cir. 2008) (internal quotations and citations omitted).

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C. Discovery materials

Discovery materials are, for the most part, understood to be public so long as filed with a court; otherwise, they are not necessarily accessible.

If filed with the court, in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

The Connecticut Appellate Court has explained that Conn. R. Super. Ct. §§ 11-20A(a),(b) “codifies the common-law presumption of public access to judicial documents,” which it defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function, including discovery related motions and their associated exhibits.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 47–48, 970 A.2d 656, 683 (2009). As the Court explained,

Because of their impact on the judicial process, the public interest in judicial monitoring extends to such motions. The actions of the court during the pretrial period ultimately shape issues between the parties at trial or settlement, and the public surely has a vested interest in ensuring that those actions are carried out equitably, free from corruption or error.

Id. On this basis, the Appellate Court held that the only non-judicial documents in the Rosado case file—and thus, the only ones exempt from disclosure—were documents “not marked in support of any motion or other determination,” including “two deposition transcripts that were not filed in connection with any motion.” Id. at 51-52, 685.   

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D. Pre-trial motions and records

Pretrial motions and records are like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).The Connecticut Appellate Court has explained that Conn. R. Super. Ct. §§ 11-20A(a),(b) “codifies the common-law presumption of public access to judicial documents,” which it defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function, including discovery related motions and their associated exhibits.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 47–48, 970 A.2d 656, 683 (2009). As the Court explained,

Because of their impact on the judicial process, the public interest in judicial monitoring extends to such motions. The actions of the court during the pretrial period ultimately shape issues between the parties at trial or settlement, and the public surely has a vested interest in ensuring that those actions are carried out equitably, free from corruption or error.

Id. On this basis, the Appellate Court held that the only non-judicial documents in the Rosado case file—and thus, the only ones exempt from disclosure—were documents “not marked in support of any motion or other determination,” including “two deposition transcripts that were not filed in connection with any motion.” Id. at 51-52, 685.   

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E. Trial records

Trial records are like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

The Connecticut Appellate Court has explained that Conn. R. Super. Ct. §§ 11-20A(a),(b) “codifies the common-law presumption of public access to judicial documents,” which it defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function, including discovery related motions and their associated exhibits.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 47–48, 970 A.2d 656, 683 (2009).

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F. Settlement records

The presumption of openness does not apply to records from settlement conferences or negotiations, or related documents. Conn. R. Sup. Ct. §§ 11-20A(i) (civil); 25-59A(g) (family). It does, however, apply to settlement agreements filed with the court or “incorporated into a judgment of the court.” Id.  When filed with a court, settlement records become like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

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G. Post-trial records

Post-trial records are like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

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H. Appellate records

Appellate records are like any other filing: in both state and federal court, the First Amendment provides a strong presumption of public access to documents filed in civil cases “that directly affect an adjudication;” these are referred to as “judicial documents.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995).  Records of that type may be sealed only if “specific, on the record findings are made demonstrating that [sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,” provided that the “right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of the right to a fair trial.”  In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations and alterations omitted).

Appellate records are presumed available to the public. Conn. R. App. Ct. § 77-3. As with superior court records, records may only be sealed if—upon written motion, or the court’s own motion—the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure. Id. Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id. An order to seal records may be made only after hearing, with notice to the public. Conn. R. App. Ct. § 77-4.

Records of appellate proceedings involving juvenile matters are open only to counsel of record and “others having a proper interest therein only upon order of the court.” Conn. R. App. Ct. § 79a-12.

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I. Other civil court records issues

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VII. Jury and grand jury access

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A. Access to voir dire

Public access to pretrial proceedings includes access to voir dire. See, e.g., State v. Komisarjevsky, 302 Conn. 162, 183, 25 A.3d 613, 626 (2011).  That access, both in state and federal court, is protected by the First Amendment.  ABC, Inc. v. Stewart, 360 F.3d 90, 102 (2d Cir. 2004).

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B. Juror identities, questionnaires and other records

The First Amendment right of access to records generally extends to blank and completed juror questionnaires, although the trial court may require redactions, or may delay release of completed questionnaires until the jury is seated if it finds facts supporting the conclusion that earlier release would cause prospective jurors to lie in their questionnaire responses.  United States v. King, 140 F.3d 76, 82–83 (2d Cir. 1998).  A Connecticut statute declares that completed questionnaires “shall not constitute a public record,” Conn. Gen. Stat. § 51-232(c), but it appears that no state court has yet had occasion to apply the First Amendment right of access to the statute.

In federal court, the names of all prospective jurors who appear in open court for voir dire will be released upon request to the clerk’s office.  D. Conn. Jury Plan § 17; 28 U.S.C. § 1863(b)(7); see also United States v. Quattrone, 402 F.3d 304, 312 (2d Cir. 2005) (in either state or federal court, juror names revealed in open court are all but guaranteed to be available to the public).  The Second Circuit has not opined on when the district judge may keep the list of juror names secret; other circuits have held that the open knowledge of jurors’ names benefits public confidence in trials.  See United States v. Blagojevich, 612 F.3d 558, 561-62 (7th Cir. 2010); In United States v. Wecht, 537 F.3d 222 (3d Cir. 2008); In re Globe Newspaper Co., 920 F.2d 88 (1st Cir.1990); In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988).

Any prohibition against publishing jurors’ names would be assessed the same as any prior restraint on speech, i.e., would be exceedingly unlikely to be lawful unless the court found that disclosure of the names was a very serious threat to the trial, and that no lesser restriction would adequately address that threat.  United States v. Quattrone, 402 F.3d 304, 309–10 (2d Cir. 2005).

State law has no specific prohibition against publication of juror names. See State v. Miller, 202 Conn. 463, 476, 522 A.2d 249, 256 (1987) (pretrial publication of names of jurors in local newspaper did not deprive defendant of right to fair and impartial jury, where jurors claimed it would not affect their judgment).

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C. Grand jury proceedings and records

Indicting grand juries have not been necessary to prosecute someone under Connecticut law since 1983, and are rarely used. In the event one is impaneled to decide whether a person should be charged with a crime, the proceedings are closed to everyone aside from the prosecutor(s), witness(es), and jurors. E.g., State v. Canady, 187 Conn. 281, 290 (1982). Transcripts of grand jury proceedings are available only to the prosecutor and to the person accused of a crime as a result of the grand jury. Conn. Gen. Stat. § 54-45a(a).

Connecticut law also provides for investigatory grand juries in certain instances (enumerated in Conn. Gen. Stat. Ann. § 54-47b(2)); these comprise one or three judges rather than a group of laypeople serving as grand jurors.  The State’s application requesting an investigatory grand jury and the court order authorizing an investigatory grand jury investigation are both subject to absolute seal. Conn. Gen. Stat. § 54-47e; In re Judicial Inquiry Number, 293 Conn. 247, 268 (Conn. 2009).

“The finding of the investigation”—which “may include all or such part of the record as the investigatory grand jury may determine”—“shall be open to public inspection and copying,” unless a state prosecutor files a timely objection with the grand jury. Conn. Gen. Stat. § 54–47g(b). In that case, the burden is on the objector, who must establish that there is a substantial probability that one of the several enumerated interests will be prejudiced by disclosure, and that there are no reasonable alternatives to nondisclosure. Id.; Conn. Gen. Stat. § 54–47g(c)(1)–(4). After the grand jury holds a hearing to decide the issue, “any person aggrieved by an order of the panel” may appeal, within 72 hours, to the state’s appellate court. Conn. Gen. Stat. § 54–47g(b); see also In re Judicial Inquiry No. 2005-02, 293 Conn. 247, 268 (2009) (discussing statute in light of media request for disclosure).  Although any part of the record of the investigation the grand jury does not include with its finding is presumptively sealed, “any person may file an application with the panel for disclosure of any such part of the record.” Conn. Gen. Stat. § 54–47g(a). After a hearing, the panel may, by majority vote, disclose any part of the record it deems to be in the public interest. Once again, “[a]ny person aggrieved by an order of the panel” has the right to appeal within 72 hours to the state’s appellate court. Id.  Notwithstanding any orders of nondisclosure, witnesses and the person subject to criminal proceedings as a result of the investigatory grand jury proceeding may request access to their testimony from the proceeding. Conn. Gen. Stat. § 54–47g(g).

In federal court, by contrast, grand jury indictment is required for all felony charges unless waived by the defendant.  U.S. Const. amend. IV.  Grand jury proceedings are purely a tool of the prosecution, are not done in a courtroom or with a judge present, and are closed to the public.  Fed. R. Crim. P. 6(d)(1).  Grand jury records are automatically off-limits by default, Fed. R. Crim. P. 6(e)(6), although they may be ordered released if that “is needed to avoid a possible injustice in another judicial proceeding, . . . the need for disclosure is greater than the need for continued secrecy, and [the] request is structured to cover only material so needed.”  Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979).

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D. Interviewing jurors

In both federal and state court, sitting jurors are not permitted to speak about their deliberations.  D. Conn. Local R. 83.5(1)(b) (federal); Conn. Gen. Stat. § 51-245(a) (state).

Extreme caution should be used when considering contacting sitting federal grand jurors, as contact could be viewed as a crime if characterized as an attempt to influence the juror.  See 18 U.S.C. §§ 1503, 1504.  Jurors who have completed their service may not speak about their deliberations.  Fed. R. Crim. P. 6(e)(2)(B)(i).  Grand jury witnesses, however, may speak freely about their testimony after the end of the grand jury’s term unless specifically barred from doing so by a court.  Butterworth v. Smith, 494 U.S. 624, 632–33 (1990).

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VIII. Proceedings involving minors

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A. Delinquency

Juvenile delinquency proceedings (adjudicating allegations that children have committed crimes) in state court are closed except as to complaining witnesses.  Conn. Gen. Stat. § 54-76h(b).

State law also mandates the confidentiality of all information pertaining to a delinquency proceeding. Conn. Gen. Stat. § 46b-124; Conn. R. Sup. Ct. § 30a-8. This includes police records concerning the arrest of a juvenile; all court proceedings, including detention and probation, which are administered by the Judicial Branch; and post-adjudication secure treatment facilities, which are administered by DCF.

Disclosure is allowed only to those involved with the case or those “who may have a legitimate need for the information.” These include court personnel who require access to the records; employees of agencies involved in the proceedings or providing services to the juvenile; law enforcement conducting criminal investigations. The victim of the act at issue may also receive certain information. Conn. Gen. Stat. § 46b-124a. Redisclosure is strictly limited. Conn. Gen. Stat. §§ 46b-124(c), (d), (e).

The Supreme Court has held that the strong presumption of confidentiality of juvenile records justifies a narrow construction of the discretion afforded a trial court with regard to releasing information. See In re Sheldon G., 216 Conn. 563, 568, 583 A.2d 112, 115 (1990) (construing disclosure statute), abrogated in part by Conn. Gen. Stat. § 46b-124a (allowing increased access to information by victims of the offense).

Although federal law provides for the possibility of the District of Connecticut hearing both federal juvenile delinquency matters, 18 U.S.C. § 5032, and of trying juveniles over the age of fifteen as adults for federal crimes, id., both are vanishingly rare.

Under the Juvenile Transfer Act, adopted by the Connecticut legislature in October 2019, defendants between the ages of fifteen and eighteen who are charged with certain felonies and whose cases are transferred to adult criminal court will have their cases shielded from public view, even though these are not delinquency proceedings. Conn. Gen. Stat. Ann. § 46b-127(a)–(b). The Hartford Courant has filed suit challenging the constitutionality of this provision.

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B. Dependency

Child protection proceedings are exclusively heard in state court and are presumptively open, but may be closed at the court’s discretion. Conn. Gen. Stat. § 46b-122; Conn. R. Super. Ct. §§ 1‐10B(b)(2). While judges “may permit any person whom the court finds has a legitimate interest in the hearing or the work of the court” to attend, they may also exclude “any person whose presence is, in the court's opinion, not necessary.” Judges in child protection proceedings may further bar those present, “including a representative of the news media,” from “disclosing any information that would identify the child, the custodian or caretaker of the child or the members of the child's family involved in the hearing.” Id.

In practice, Connecticut’s juvenile courts have operated as closed to everyone except those directly involved in the case.  The Connecticut Appellate Court has upheld this protocol on grounds of protecting a juvenile's right to privacy. See In re Brianna B., 785 A.2d 1189, 66 Conn. App. 695 (2001). Recently, the Connecticut legislature briefly experimented with a pilot program to make child protection proceedings public, but it ultimately abandoned the idea. See Juvenile Access Pilot Program Advisory Board: Report to the Connecticut General Assembly , December 31, 2010, available at https://www.jud.ct.gov/Committees/juv_access/Final_report_123010.pdf.

Disclosure of juvenile matters records is allowed only to those involved with the case or those “who may have a legitimate need for the information.” For child protection matters, these include court personnel who require access to the records; DCF; and other courts. Conn. Gen. Stat. § 46b-124 (b).

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C. Other proceedings involving minors

Under the Juvenile Transfer Act, adopted by the Connecticut legislature in October 2019, defendants between the ages of fifteen and eighteen who are charged with certain felonies and whose cases are transferred to adult criminal court will have their cases shielded from public view, even though these are not delinquency proceedings. Conn. Gen. Stat. Ann. § 46b-127(a)–(b). The Hartford Courant has filed suit challenging the constitutionality of this provision.

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D. Prohibitions on photographing or identifying juveniles

Note that no electronic coverage of juvenile matters, including the photographing of courtroom proceedings, is permitted at either the state trial or appellate courts. Conn. R. Sup. Ct. § 1-10B(2); Conn. R. App. Ct. § 70-9(c)(1).  No photography or electronic coverage of any kind is permissible in the United States District Court.  D. Conn. Local Civ. R. 83.11.

In state court proceedings other than juvenile ones, the court may restrict photo- or videography only if “there exists a compelling reason to do so, there are no reasonable alternatives to such limitation or preclusion, and such limitation or preclusion is no broader than necessary to protect the compelling interest” in the restriction, Conn. R. Super. Ct. § 1-11B(d) (civil), id. § 1-11C(f) (criminal), which are limited to “substantial reason[s] to believe” that photo- or videography will “will undermine the legal rights of a party or will significantly compromise the safety or significant privacy concerns of a party, witness or other interested person.”  Id. § 1-11B(e) (civil), id. § 1-11B(g) (criminal).

Bars against identifying anyone in a public proceeding would be analyzed as a gag order: gag orders on anyone are governed by the First Amendment’s generally applicable speech protections, and would need to meet the most stringent standards, i.e., that the speech restriction (1) furthered a compelling government interest and (2) was the least restrictive means of meeting that interest.  E.g., Beal v. Stern, 184 F.3d 117, 124–25 (2d Cir. 1999).  That standard is unlikely to be met outside of sitting jurors and judges, and those witnesses who will testify to information that would qualify for courtroom closure (for example, the identity of a confidential informant, or a corporation’s internal assessment of its competitive weaknesses).  The standard will never be met as applied to information that the trial participant learned through public documents or proceedings in an open courtroom, since anyone could have learned the same information.  See Oklahoma Publ’g Co. v. District Court, 430 U.S. 308, 311 (1977).  The rules differ significantly in state family court, where the public is not allowed, and participants are barred from revealing certain information.  See In re Brianna B., 66 Conn. App. 695 (2001) (upholding contempt order issued by trial court for party who published child’s name and photo on website).

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E. Minor testimony in non-juvenile courts

Note that no photography or electronic coverage of any kind is permissible in the United States District Court.  D. Conn. Local Civ. R. 83.11.

In federal civil proceedings to which a First Amendment right of access applies (which is most), “the Court must make particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).  In federal criminal proceedings, the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.”  D. Conn. Local Crim. R. 57(b)(1)(A).

Bars against identifying anyone in a public proceeding would be analyzed as a gag order: gag orders on anyone are governed by the First Amendment’s generally applicable speech protections, and would need to meet the most stringent standards, i.e., that the speech restriction (1) furthered a compelling government interest and (2) was the least restrictive means of meeting that interest.  E.g., Beal v. Stern, 184 F.3d 117, 124–25 (2d Cir. 1999).  That standard is unlikely to be met outside of sitting jurors and judges, and those witnesses who will testify to information that would qualify for courtroom closure (for example, the identity of a confidential informant, or a corporation’s internal assessment of its competitive weaknesses).  The standard will never be met as applied to information that the trial participant learned through public documents or proceedings in an open courtroom, since anyone could have learned the same information.  See Oklahoma Publ’g Co. v. District Court, 430 U.S. 308, 311 (1977).  The rules differ significantly in state family court, where the public is not allowed, and participants are barred from revealing certain information.  See also State v. Sheppard, 182 Conn. 412 (Conn. 1980)(holding that trial court erred by excluding general public other than the press from testimony of juvenile witness in rape prosecution).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

Connecticut’s two tribal court systems maintain their own rules of procedure. See Mashantucket Pequot Rules of Court, available at http://www.mptnlaw.com/TribalLaws.htm; Mohegan Tribal Court, Mohegan Rules of Civil Procedure, adopted June 1, 2019, available at https://www.mohegan.nsn.us/explore/government/tribal-court-system. Both have presumptions of open access to court proceedings with certain exceptions.

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B. Probate

Probate proceedings (disposition of estates, trusts, whether a person needs a conservator or guardian, or commitment of adults for psychiatric or substance abuse disorder) are are exclusively a state court matter and are open by default, although certain aspects may be subject to closure by statute. Conn. R. Probate P. 16.1. They may be closed if “necessary to preserve an interest that overrides the public interest in open court proceedings,” “there are no reasonable alternatives to closure,” and closure “is no broader than necessary to protect the overriding interest.” Conn. R. Probate P. 16.8(a). The parties’ agreement to close the courtroom cannot suffice to order it closed. Conn. R. Probate P. 16.8(b).

Any order closing a probate proceeding must identify “the interest being protected that overrides the public interest in open court proceedings,” the “the alternatives to closure . . . that the court considered and the reasons why the alternatives were unavailable or inadequate,” the reasons why the closure order “is no broader than necessary to protect the interest that overrides the public interest,” and the “the scope and duration of the order.” Conn. R. Probate P. 16.8(c).

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C. Competency and commitment proceedings

Probate proceedings (disposition of estates, trusts, whether a person needs a conservator or guardian, or commitment of adults for psychiatric or substance abuse disorder) are exclusively handled by the state court system and are open by default, although certain aspects may be subject to closure by statute.  Conn. R. Probate P. 16.1.  They may be closed if “necessary to preserve an interest that overrides the public interest in open court proceedings,” “there are no reasonable alternatives to closure,” and closure “is no broader than necessary to protect the overriding interest.”  Conn. R. Probate P. 16.8(a).  The parties’ agreement to close the courtroom cannot suffice to order it closed.  Conn. R. Probate P. 16.8(b).

Any order closing a probate proceeding must identify “the interest being protected that overrides the public interest in open court proceedings,” the “the alternatives to closure . . . that the court considered and the reasons why the alternatives were unavailable or inadequate,” the reasons why the closure order “is no broader than necessary to protect the interest that overrides the public interest,” and the “the scope and duration of the order.”  Conn. R. Probate P. 16.8(c).

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D. Attorney and judicial discipline

State attorney discipline proceedings are confidential unless the committee decides to hold a public hearing.  Conn. Statewide Grievance Comm. R. P. 1(d), 7.

The federal district court’s disciplinary procedures for lawyers are separate from the state’s, and proceedings and filings are generally off-limits to the public unless they are requested to be opened by the attorney alleged to have committed misconduct.   D. Conn. Local Civ. R. 83.2(c), 83.2(d)(5).  However, if the court finds that misconduct occurred and sanctions the attorney with a punishment other than private reprimand, the filings are unsealed.  D. Conn. Local Civ. R. 83.2(d)(7).

Discipline of federal trial and appellate court judges is handled by the regional appellate court, the U.S. Court of Appeals for the Second Circuit.  Federal judicial disciplinary filings and proceedings are generally private, Fed. R. Jud. Conduct P. 23, unless the case has concluded with the imposition of discipline upon the judge, whereupon most records become public.  Fed. R. Jud. Conduct P. 24.

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

In federal court, media will generally have standing to challenge speech restrictions on third parties if (1) the media has a bona fide desire to gather news by speaking with the subject of the order, and (2) the subject of the order wishes to speak with the media but cannot but for the gag order.  E.g., Spargo v. N.Y. Comm’n on Judicial Conduct, 351 F.3d 65, 83–84 (2d Cir. 2003).  That rule of standing is likely to be the same in a state court, because Connecticut’s courts have developed standing requirements very similar to the ones adhered to in the national courts.

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B. Gag orders on the press

The First Amendment to the United States Constitution all but forbids state or federal courts from imposing gag orders on the press.  E.g., United States v. Quattrone, 402 F.3d 304, 309–10 (2d Cir. 2005).

Connecticut’s appellate courts have not directly addressed this issue under state law. However, protections against prior restraints (orders forbidding speech before it is said) are even stronger under Sections 4 and 5 of Article 1 of the Connecticut Constitution than under their federal counterpart. State v. Linares, 232 Conn. 345, 380-81 (1995). The Connecticut Supreme Court has, in dicta, referenced the history of Article I, Sections 4 and 5, and intimated that these sections taken together mean that prior restraints on publication are absolutely barred. Cologne v. Westfarms Associates, 192 Conn. 48, 63 n.9 (1985).

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C. Gag orders on participants

Connecticut’s appellate courts have not yet addressed the appropriate legal standard for imposing a gag order on trial participants. As of this writing, the Connecticut Supreme Court is preparing to do so. See Order Certifying Appeal, State of Connecticut v. Dulos, S.C. 190077 (October 2, 2019), available at http://appellateinquiry.jud.ct.gov/DocumentDisplayer.aspx?AppId=2&DocId=Y3FqKozra6kQ89kEHGztNA%3d%3d.

The state’s appellate court has previously upheld a self-imposed gag order by parties. See Perricone v. Perricone, 292 Conn. 187, 216, 972 A.2d 666, 686 (2009) (upholding private confidentiality agreement signed by parties to divorce that prevented them from speaking publicly, over wife’s objection, as not implicating open court access under state constitution).  It is deeply unlikely that such an agreement would be valid if one party to the litigation were a government agency or employee.

In both federal and state court, gag orders on anyone are governed by the First Amendment’s generally applicable speech protections, and would need to meet the most stringent standards, i.e., that the speech restriction (1) furthered a compelling government interest and (2) was the least restrictive means of meeting that interest.  E.g., Beal v. Stern, 184 F.3d 117, 124–25 (2d Cir. 1999).  That standard is unlikely to be met outside of sitting jurors and judges, and those witnesses who will testify to information that would qualify for courtroom closure (for example, the identity of a confidential informant, or a corporation’s internal assessment of its competitive weaknesses).  The standard will never be met as applied to information that the trial participant learned through public documents or proceedings in an open courtroom, since anyone could have learned the same information.

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D. Interviewing judges

Reporters are free to seek interviews with judges, but both the state and federal judicial conduct rules forbid judges from speaking about cases that are pending in front of them (or are on appeal from their court and therefore could return to them one day) in a way that affect the outcome of the case.  Conn. Code of Jud. Conduct 2.10; Code of Conduct for United States Judges Canon 3(A)(6).   Judges typically err on the side of caution and avoid making any statement whatsoever about pending cases.  The one outlier group is the justices of the United States Supreme Court, who are not bound by the rules applicable to all other federal judges and so can from time to time appear to speak in ways that no other federal judge might.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

In criminal cases, the most frequently cited interests are the fair trial rights of defendants, the identities of confidential informants, and certain policing techniques.  None are treated as weightier or more special than any other reason advanced in support of courtroom closures, though, for First Amendment purposes.  The need cited must be specific, i.e., the entity seeking closure must explain precisely how the cited interest is threatened by normal proceedings, and, must prove that closing the courtroom is the narrowest way to address the interest (as against, for example, obscuring a witness’s face, permitting them to testify behind a screen, etc.).

In civil cases, the most frequently cited interests are trade secrets, competitive financial details, and items of intimate privacy.  As in criminal cases, the same general rule applies: the party seeking closure must demonstrate the problem with specificity and must prove that closure is narrowest means possible to cure the problem.  Even when closure is warranted, the narrowness requirement necessitates the briefest possible closure, for example, during a limited portion of a single witness’s testimony.

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B. Cameras and other technology in the courtroom

Connecticut’s state rules address “broadcasting, televising, recording or photographing by the media” of courtroom proceedings, organized by type of proceeding. See Conn. R. Super. Ct. § 1-10B (general); § 1-11A (arraignments); § 1-11B (civil proceedings); § 1-11C (criminal proceedings); § 70-9 (appellate proceedings).

There is a blanket prohibition on any electronic coverage of:

  • Family relations matters;
  • Juvenile matters; and
  • Proceedings involving sexual assault or trade secrets.

In addition, no electronic coverage is allowed of any proceedings held without the jury (in jury trials); jury selection or jurors; any proceedings during recess; or any bench conferences.

As a threshold matter, someone who proposes to electronically cover a proceeding must be designated as “media” by the Office of the Chief Court Administrator. Conn. R. Super. Ct. § 1-10A. Approval may be obtained by contacting external.affairs@jud.ct.gov or by calling (860) 757-2270.

Requests to cover proceedings electronically must go through a specific process depending on type of proceeding. In every case, the judicial decision on requests for coverage is final.

Arraignments. Coverage of arraignments must be authorized by the person presiding over the arraignment. Media desiring to cover an arraignment must first e-mail a request to a person designated by the Chief Court Administrator. At the time of writing, this was Alison.Chandler@jud.ct.gov, with cc to Rhonda.Hebert@jud.ct.gov. That request is sent to an administrative judge, who in turn informs counsel for the parties. The parties must have an opportunity to object on the record; if they do, the judge must issue a decision articulating the reasons for allowing or denying coverage. “To the extent practicable,” electronic coverage should not include close-ups of counsel’s documents; coverage of the defendant entering or exiting lock-up; any restraints on the defendant, those escorting the defendant; and anyone other than court personnel and those participating in the arraignment. Additional rules govern the mechanics of coverage and comportment of media in the courtroom.

Criminal proceedings. In addition to Conn. R. Super. Ct. § 1-11C, the Connecticut Judicial Branch maintains an FAQ-type document on its website. See Rules regarding the Electronic Coverage of Criminal Court Proceedings by the Media, January 1, 2012, available at https://www.jud.ct.gov/external/media/camera_rules_010112.pdf.

Requests to cover criminal proceedings must be submitted to the administrative judge of the judicial district where the proceeding will take place at least three days before it begins. The administrative judge will inform the presiding judge, who “shall allow such coverage except as otherwise permitted.” Objections to coverage may be filed by “any interested person” if “there is substantial reason to believe that such coverage will undermine the legal rights of a party or will significantly compromise the safety of a witness or other person or impact significant privacy concerns.” Once an objection is filed, the presiding judge must hold a hearing, after notice via the Judicial Branch website, at which “any person, including the media, whose rights are at issue” may participate. The burden is on the objector. The judge shall “consider all rights at issue” and “shall limit or preclude . . . coverage only if there exists a compelling reason to do so, there are no reasonable alternatives to such limitation or preclusion, and such limitation or preclusion is no broader than necessary to protect the compelling interest at issue.” Even if no objection is filed, the presiding judge may sua sponte decide to hold such a proceeding, using the same process and considerations. The judge must articulate the reasons for a decision, and the decision is final. Additional rules govern the mechanics of coverage and comportment of media in the courtroom.

Civil proceedings. The Connecticut Practice Book does not specify that a request to an administrative judge is required to electronically cover civil proceedings. Otherwise, the process for objections, notice and hearing mirrors that for criminal proceedings. Additional rules govern the mechanics of coverage and comportment of media in the courtroom.

Appellate proceedings. Per Conn. R. App. Ct. § 70-9, the appellate courts do not allow coverage of cases involving sexual assault, child protection issues, child custody issues, and terminations of parental rights. Otherwise, someone who wants to cover appellate proceedings electronically—or someone who objects to that coverage—must file a motion no later than a week before the start of the term in which the case will be heard. In doing so, the proponent must notify all counsel of record, victims of the offense, and minor children involved. The appellate court must provide an opportunity to respond in writing to “any media outlet expected to cover the proceeding” (in cases of an objection) or the parties, any minor children involved, and any victims of the offense (in cases of a request). The appellate panel may also act on its own motion.

In determining whether to preclude coverage, “the panel of jurists will apply the presumption that all judicial courtroom proceedings are subject to coverage by cameras and electronic media” and may only limit coverage for “good cause”; if there is no reasonable alternative; and the limitation is no broader than necessary. If the panel limits electronic coverage, it must provide a statement of the reasons for doing so.

The federal trial court flatly prohibits video- and photography during court sessions, as well as radio or television broadcasting.  D. Conn. Local Civ. R. 83.11.

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C. Tips for covering courts in the jurisdiction

The State of Connecticut Judicial Branch maintains a “Media Resource Center” at  https://www.jud.ct.gov/external/media/. The site includes a brief overview of the Connecticut court system; summaries of the relevant Practice Book rules; and relevant contacts for media requests.

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