Mississippi
Author
Haley F. Gregory
Butler Snow LLP
1020 Highland Colony Parkway, Suite 1400,
Ridgeland, MS 39157
601-985-4458
haley.gregory@butlersnow.com
www.butlersnow.com
Last updated March 22, 2019
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
The Mississippi Supreme Court has stated that “[f]reedom of the press and speech are fundamental rights guaranteed by the First Amendment,” and that “this constitutional right of speech and the press is satisfied by allowing the press to attend the trial and report what they have heard.” Associated Press v. Bost, 656 So. 2d 113, 117 (Miss. 1995). However, the court continued, “there is no constitutional right to have testimony recorded and broadcast.” Id.
The Mississippi Supreme Court has also stated that there is a presumption of openness to the criminal process, and that this presumption includes the pretrial setting. See Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163, 1165 (Miss. 1987). Although the court stated that the right to a public trial “belongs to the accused and no one else,” id., the U.S. Supreme Court has held that the public has a First Amendment right to attend criminal trials. See, e.g., Press-Enter. Co. v. Superior Court, 464 U.S. 501 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
The Mississippi Supreme Court has stated that there is no constitutional right to access public records. See Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163, 1167 (Miss. 1987). Rather, the court noted, the right to access such records “is a right derived from the common law and from applicable statues.” Id. Where common law rights clash with federal constitutional rights, “under the supremacy clause the former must yield.” Id.
However, a party seeking to view a public record does not have to maintain an interest in the record. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200 So. 716, 719 (1941) (“A mere reading of these granted powers shows clearly that the appellee has the right to
inspect and make copies of all the land records in the entire state of Mississippi and to compile independent abstracts for future use. Denial of that right by counties would nullify the explicit powers granted it by the state.”).
The Mississippi Constitution provides that in prosecutions for rape, adultery, fornication, sodomy or a crime against nature,“the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.” Miss. Const. art. 3, § 26. This is echoed in the Rules of Criminal Procedure of the state, which observe that all proceedings “shall be open to the public unless the court finds, upon application of the defendant, that an open proceeding presents a danger to the defendant's right to a fair trial by an impartial jury.” MRCrP 10.3. Citing section 26 of the Mississippi Constitution, MRCrP Rule 10.3 observes that “the court may exclude from the courtroom all persons except those necessary in the conduct of the trial.” Id.
CompareB. Overcoming a presumption of openness
The Mississippi Supreme Court, quoting Press-Enterprise I, has held that the presumption of access to a trial can be overcome only by demonstrating that closure “is essential to preserve higher values and is narrowly tailored to serve that interest.” Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163, 1165 (Miss. 1987) (emphasis added). Such a decision must be supported by “specific, on the record findings of fact which show in what manner the coverage will cause a party to lose the right to a fair trial.” In re WLBT, Inc., 905 So. 2d 1196, 1199 (Miss. 2005).
In a pretrial setting, a preliminary hearing can be closed “only if specific findings are made demonstrating that first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s free trial rights.” Id. at 1165-66 (quoting Press-Enterprise II).
CompareC. Procedural prerequisites to closure
Where a presumption of access applies, courts must make specific, on the record findings about the need for closure. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986).
The Mississippi Supreme Court explained the requirements for closing a court file or proceeding in Gannett River States Pub. Co. v. Hand, 571 So.2d 941, 943 (Miss. 1990). The court established that notice must be given to the media and the public at least 24 hours before a hearing on the closure. To provide adequate notice, a motion for closure must be docketed in the court clerk’s office. Id. at 945. At the hearing, the party seeking closure must: “advance an overriding interest that is likely to be prejudiced; the closure order must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure.” Id. The press also must be allowed to present its argument, if any, against closure. Id. A court that grants closure must explain the alternatives it considered and why they were rejected. Id.; see also Pierce v. State, 250 So. 3d 493, 498 (Miss. Ct. App. 2018) (citing Presley v. Georgia, 558 U.S. 209, 214 (2010)).
A transcript of the closure hearing should be made public. Gannett River, 571 So.2d at 945. If a petition for extraordinary relief is filed, the petition should be accompanied by the transcript, the court's findings of fact and conclusions of law, and the evidence adduced at the closure hearing. Id.
CompareII. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
The U.S. Supreme Court noted that the public and the press have a right to challenge closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).
The Mississippi Supreme Court has acknowledged that “[i]t is well settled that representatives of the news media have standing to contest court orders restricting public access to legal proceedings.” Miss. Publishers Corp. v. Coleman, 515 So.2d 1163, 1164-65 (Miss. 1987).
CompareB. Procedure for requesting access in criminal cases
The Mississippi Supreme Court has not explicitly discussed whether a formal procedure should be followed to request access in criminal cases, though in at least two Mississippi Supreme Court cases, media organizations filed writs of mandamus (pursuant to what is now Mississippi Rule of Appellate Procedure 21) when seeking to vacate a lower court’s closure order.
In Mississippi Publishers Corp. v. Coleman, 515 So.2d 1163 (Miss. 1987), a newspaper publisher petitioned the court for writ of mandamus or other extraordinary relief when files and pretrial proceedings in a murder case were closed to the public. In Gannett River States Pub. Co. v. Hand, 571 So. 2d. 941 (Miss. 1990), the publisher also sought a writ of mandamus compelling a trial court judge to vacate a closure order in a murder case. Id. at 942. The court in Gannettalso outlined what procedures a court must take prior to granting a closure order. Among other things, the court explained that a trial court must hold a hearing “in which the press is allowed to intervene on behalf of the public and present argument, if any, against closure.” Id. at 945.
CompareC. Procedure for requesting access in civil matters
Mississippi courts have not addressed whether the procedure for the press requesting access in criminal and civil matters differs or if any such differences are material. See “Procedure for requesting access in criminal cases” above.
CompareD. Obtaining review of initial court decisions
In general, a notice of appeal must be filed with the clerk of the trial court within 30 days after the date the judgment or order is issued. The procedure for reviewing a trial court’s decision on closure issues has not been specifically addressed. However, in In re WLBT Inc., 905 So. 2d 1196 (Miss. 2005), a television station petitioned the Mississippi Supreme Court for an emergency writ of mandamus to compel the trial court to allow televised coverage of sentencing proceedings after the trial court initially denied the request, and the Mississippi Supreme Court remanded with directions.
Federal law instructs that the process for reviewing the trial court’s determination on closure should be swift because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
CompareIII. Access to criminal proceedings
CompareA. In general
The Mississippi Supreme Court has held that the “criminal process should be open to public scrutiny. Exceptions can be made, but only for good cause,” Miss. Publishers Corp. v. Coleman, 515 So. 2d 1163, 1165 (Miss. 1987). For instance, the court has stated that the public may be excluded “to the extent necessary to avoid embarrassment or emotional disturbance to a witness which might result from that witness giving testimony in a particular case.” Lee v. State, 529 So. 2d 181 (Miss. 1988). Also, when a trial court determines that there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity, and where there is no less restrictive alternative to closure, “[p]ress access to the trial and pretrial processess may be qualified.” Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 942 (Miss. 1990).
The Mississippi Supreme Court established the requirements for closing a court file or proceeding in Gannett River States Pub. Co. v. Hand, 571 So.2d. 941, 943 (Miss. 1990). The court established that notice must be given to the media and the public at least 24 hours before a hearing on the closure. To provide adequate notice, a motion for closure must be docketed in the court clerk’s office. Id. at 945. At the hearing, the party seeking closure must: “advance an overriding interest that is likely to be prejudiced; the closure order must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure.” Id. The press also must be allowed to present its argument, if any, against closure. Id. A court that grants closure must explain the alternatives it considered and why they were rejected. Id.
A transcript of the closure hearing should be made public. Id. If a petition for extraordinary relief is filed, the petition should be accompanied by the transcript, the court's findings of fact and conclusions of law, and the evidence adduced at the closure hearing. Id.
CompareB. Pretrial proceedings
Likewise, the Mississippi Supreme Court has stated that there is a presumption of openness to pretrial criminal proceedings. “The preliminary hearing shall be closed only if specific findings are made demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's free trial rights.” Miss. Publishers Corp. v. Coleman, 515 So.2d 1163, 1164-65 (Miss. 1987) (quoting Press Enterprise II); see also Edmonds v. State, 955 So. 2d 864, 899 (Miss. Ct. App. 2006) (upholding the trial court’s decision to restrict access to suppression hearing to protect the constitutional right of another defendant to a fair trial), rev'd on other grounds, 955 So. 2d 787 (Miss. 2007).
CompareC. Criminal trials
The Mississippi Constitution affords the accused the right to a public trial, but explicitly authorizes the exclusion of the public in certain instances. Article 3, § 26 states that “in prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.” Id. (emphasis added).
CompareD. Post-trial proceedings
The Fifth Circuit has recognized a right of access to post-trial proceedings. In re Hearst Newspapers, L.L.C., 641 F.3d 168, 176 (5th Cir. 2011) (“We conclude, as have the other courts that have considered this question, that the public and press have a First Amendment right of access to sentencing proceedings.”).
The Mississippi Supreme Court has likewise held that the press has a right of access to sentencing hearings. In re WLBT, Inc., 905 So. 2d 1196 (Miss. 2005).
CompareE. Appellate proceedings
The Mississippi courts have not expressly addressed the right of access to appellate proceedings.
CompareIV. Access to criminal court records
CompareA. In general
The Supreme Court has recognized a common law right “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).
The Mississippi Supreme Court agreed that there is a common law right and has ruled that there is no constitutional right of access to public records, and that no one has rights under the Public Records Act that would deprive the criminally accused of his right to a fair trial. Miss. Publishers Corp. v. Coleman, 515 So.2d 1163, 1167 (Miss. 1987) (“The petitioners are simply wrong in their claim that the right of access to public records is of constitutional dimensions. It is a right derived from the common law and from applicable statutes.”).
The court established the requirements for closing a court file or proceeding in Gannett River States Pub. Co. v. Hand, 571 So. 2d. 941, 943 (Miss. 1990). The court established that notice must be given to the media and the public at least 24 hours before a hearing on the closure. To provide adequate notice, a motion for closure must be docketed in the court clerk’s office. Id. at 945. At the hearing, the party seeking closure must: “advance an overriding interest that is likely to be prejudiced; the closure order must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure.” Id. The press also must be allowed to present its argument, if any, against closure. Id. A court that grants closure must explain the alternatives it considered and why they were rejected. Id.
A transcript of the closure hearing should be made public. Id. If a petition for extraordinary relief is filed, the petition should be accompanied by the transcript, the court's findings of fact and conclusions of law, and the evidence adduced at the closure hearing. Id.
CompareB. Arrest records
CompareC. Dockets
Some, but not all, Mississippi trial courts maintain their own websites or provide web access through a private vendor. Some of these sites include docket information. For cases on appeal, the docket of the Mississippi Supreme Court and the Court of Appeals is available online at https://courts.ms.gov/. The docket is searchable by party name, attorney name, and case number. The site provides a docket entry for each appeal listing the parties to the appeal and a publicly accessible PDF copy of every filing, order, and opinion in each case, unless the document has been placed under seal pursuant to a protective order.
Records not available online can be viewed or copied in the office of the Clerk of the Mississippi Supreme Court, which maintains Supreme Court and Court of Appeals case files, unless the records have been placed under seal pursuant to court order. The clerk’s office may require advance notice of a request to view or copy a file. The telephone number is 601-359-3694. Because of limited space, older files are transferred to and stored at the State Department of Archives and History. Those records should be obtained directly from Archives and History.
CompareD. Warrants, wiretaps and related materials
The Mississippi courts have not ruled on public access to warrants and wiretap materials.
CompareE. Discovery materials
CompareF. Pretrial motions and records
CompareG. Trial records
CompareH. Post-trial records
CompareI. Appellate records
CompareJ. Other criminal court records issues
CompareV. Access to civil proceedings
CompareA. In general
The Mississippi Rules of Civil Procedure mandate that “[a]ll trials upon the merits shall be conducted in open court, except as otherwise provided by statute.” Miss. R. Civ. P. 77(b). Further, Miss. R. Civ. P. 43(a) states that in all trials, “the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Mississippi Rules of Evidence.”
CompareB. Pre-trial proceedings
Under Mississippi law, a protective order entered by the court under Rule 26(d) of the Mississippi Rules of Civil Procedure upon a finding of good cause, may provide that trade secrets and other confidential commercial and financial documents that are produced in discovery under such a protective order may be exempt from disclosure to unauthorized third persons. American Tobacco Co. v. Evans, 508 So. 2d 1057, 1062 (Miss. 1987) (citing, for example, Seattle Times Co. v. Rinehart, 467 U.S. 20 (1984)).
Rule 26(d) and a protective order entered under Rule 26(d) make confidential documents produced under the order exempt from disclosure under the State Public Records Act. See Miss. Code Ann. § 25-61-11 (2018) (“The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional law, state or federal statutory law, or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.”); see also Estate of Cole v. Ferrell, 163 So. 3d 921 (Miss. 2012) (trial court, relying on Public Records Act, abused its discretion in denying motion to preserve confidentiality of settlement agreement reached in wrongful death action against motor vehicle manufacturer).
CompareC. Trials
The Mississippi Rules of Civil Procedure mandate that “[a]ll trials upon the merits shall be conducted in open court, except as otherwise provided by statute.” Miss. R. Civ. P. 77(b). Further, Miss. R. Civ. P. 43(a) states that in all trials, “the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Mississippi Rules of Evidence.”
CompareD. Post-trial proceedings
CompareE. Appellate proceedings
CompareVI. Access to civil records
CompareA. In general
“The courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).
An individual seeking to inspect a public record need not have a cognizable interest in the record. Logan v. Miss. Abstract Co., 190 Miss. 479, 200 So. 716, 719 (1941) (“A mere reading of these granted powers shows clearly that the appellee has the right to inspect and make copies of all the land records in the entire state of Mississippi and to compile independent abstracts for future use. Denial of that right by counties would nullify the explicit powers granted it by the state.”).
CompareB. Dockets
Some, but not all, Mississippi trial courts maintain their own websites or provide web access through a private vendor. Some of these sites include docket information. For cases on appeal, the docket of the Mississippi Supreme Court and the Court of Appeals is available online at https://courts.ms.gov/. The site provides a docket entry noting each filing, order and opinion in each case. The docket is searchable by party name, attorney name, and case number.
Records not available online can be viewed or copied in the office of the Clerk of the Mississippi Supreme Court, which maintains Supreme Court and Court of Appeals case files. Records may be viewed in the clerk’s office or copied. The clerk’s office may require advance notice of a request to view or copy a file. The telephone number is 601-359-3694. Because of limited space, older files are transferred to the state Department of Archives and History. Those records should be obtained directly from Archives and History.
CompareC. Discovery materials
CompareD. Pre-trial motions and records
CompareE. Trial records
CompareF. Settlement records
Under Mississippi law, settlement agreements may be protected from the reach of Public Records Act requests. See Estate of Cole v. Ferrell, 163 So. 3d 921 (Miss. 2012) (trial court, relying on Public Records Act, abused its discretion in denying motion to preserve confidentiality of settlement agreement reached in wrongful death action against motor vehicle manufacturer).
CompareG. Post-trial records
CompareH. Appellate records
CompareI. Other civil court records issues
CompareVII. Jury and grand jury access
CompareA. Access to voir dire
The Supreme Court recognized a First Amendment presumption of access to voir dire in Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984). Despite the agreement of the parties, the Supreme Court found the closure unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505.
Federal appellate courts have made clear that a generalized interest in juror privacy is insufficient to close voir dire. In In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990), for example, the court noted that “the better practice is for the district court, rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys.”
Reporters in Mississippi may attend jury selection but are not permitted to take photographs or make audio or video recordings inside the courtroom. Additionally, the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC) prohibit photographing, videotaping or recording serving jurors inside or outside the courtroom until the jurors are discharged from service.
The Mississippi Supreme Court has held that peremptory challenges should be exercised at the bar in open court unless compelling reasons dictate otherwise; if compelling reasons exist, the court must follow notice and hearing procedures for closure. In re Gannett River States Publ’g Corp., 27 Media L. Rep. 1096 (Miss. 1998).
The Mississippi Supreme Court also held that a trial court erred in a murder prosecution by conducting individual voir dire of prospective jurors without first docketing such request for closure, without holding a pre-closure hearing, and without issuing findings of fact and conclusions of law. In re Gannett River States Publ’g Corp., 630 So. 2d 351 (Miss. 1994).
CompareB. Juror identities, questionnaires and other records
Under Mississippi law, according to Miss. Code Ann. § 13-5-32, “The names of jurors drawn from the jury box shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.” In applying this statute, the Mississippi Supreme Court has ruled that juror names should be kept secret “only in rare and exceptional cases.” Valentine v. State, 396 So.2d 15, 16 (Miss. 1981).
The U.S. Supreme Court indirectly addressed the right of access to voir dire transcripts, noting that in the unusual circumstance where voir dire must be held behind closed doors, “the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.” Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 512 (1984).
Jury records are exempt from Mississippi’s Public Records Act. Miss. Code. Ann. § 25-61-11.
CompareC. Grand jury proceedings and records
Grand jury proceedings in Mississippi are confidential, and grand jurors are prohibited from disclosing the nature or substance of their deliberations. “The only persons who may be present in the state grand jury room when a state grand jury is in session, except for deliberations and voting, are the state grand jurors, the Attorney General or his designees, an interpreter if necessary and the witness testifying.” Miss. Code Ann. § 13-7-29.
In Mississippi, “[r]ecords, orders and subpoenas related to state grand jury proceedings shall be kept under seal to the extent and for the time that is necessary to prevent disclosure of matters occurring before a state grand jury.” Miss. Code. Ann. § 13-7-39.
CompareD. Interviewing jurors
Petit jurors. The court’s interest in the administration of justice generally trumps any speech interests during trial, and courts have the authority to prevent the press from interviewing jurors about the proceedings.
In United States v. Harrelson, 713 F.2d1114, 1118 (5th Cir. 1983), the court upheld an order that prohibited repeated requests for interviews or inquiries “into the specific vote of any juror other than the juror being interviewed.”
Grand jurors. The rule governing federal grand jury secrecy, Federal Rule of Criminal Procedure 6(e), places no restriction on witnesses. These rules recognize the Supreme Court’s admonition in Butterworth v. Smith, 494 U.S. 624, 626 (1990), that witnesses have a First Amendment right to publish the details of their grand jury testimony. In that case, the Court held that “insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment,” reasoning that “the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent’s First Amendment right to make a truthful statement of information he acquired on his own.” Id. at 626, 636.
CompareVIII. Proceedings involving minors
In Mississippi, records involving children “shall not be disclosed . . . except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure.” Miss. Code Ann. § 43-21-261. Disclosure of such records is limited to situations in which the youth court determines that disclosure would advance the child’s best interest, public safety, or the functioning of the youth court; and such disclosure is limited to certain persons, enumerated by statute. Id.
CompareA. Delinquency
The Supreme Court has not recognized a right of access to juvenile proceedings or records. In an early case, In re Gault, 387 U.S. 1, 25 (1967), the Court found that “[t]here is no reason why, consistently with due process, a state cannot . . . provide . . . for the confidentiality of records of police contacts and court action relating to juveniles.” Jurisdictions vary widely in allowing access to juvenile delinquency proceedings.
In Mississippi, law enforcement agencies may publicly disclose information involving the taking of a child into custody for the commission of a delinquent act without an order from the youth court. However, the information “shall not identify the child or his address unless the information involves a child convicted as an adult.” Miss. Code Ann. § 43-21-261.
Media and electronic media coverage of delinquency or “child in need of supervision” proceedings “is strictly prohibited except upon findings of facts and conclusions of law by the court of extraordinary and compelling circumstances.” Uniform Rules of Youth Court Practice, Rule 5 (U.R.Y.C.P. 5).
CompareB. Dependency
CompareC. Other proceedings involving minors
Mississippi cases involving domestic relations, specifically the custody of children, are not subject to the same standards of closure set out in Gannett River States Publishing Co. v. Hand, 571 So. 2d 941, 945 (Miss. 1990). See In re Memphis Publ’g Co., 823 So. 2d 1150, 1151 (Miss. 2001).
Miss. Code Ann. § 93-5-21 (1994) provides wide discretion for a chancery court to close trials in divorce and custody cases, stating: “The court may, in its discretion, exclude all persons from the court room during the trial except the officers of the court, attorneys engaged in the case, parties to the suit and the witness being examined.” The chancellor’s discretionary authority is particularly important in cases that involve confidential or sensitive testimony or other evidence that may affect the emotional well-being of the children involved. In re Memphis Publ’g Co., 823 at 1151. However, matters concerning the estate of the child are financial matters and lack such protection. Id. “We find that these matters, as to both hearings and the case file, should be open to the public.” Id.
CompareD. Prohibitions on photographing or identifying juveniles
Even where juvenile proceedings are closed, the Supreme Court has made clear that a court may not “punish the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by a newspaper.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 105-06 (1979). In Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 308 (1977), the Court likewise reversed an order that “enjoined members of the news media from ‘publishing, broadcasting, or disseminating, in any manner, the name or picture of [a] minor child’ in connection with a juvenile proceeding involving that child then pending in that court.”
The Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC) do not categorically prohibit the media from photographing juveniles. However, Rule 3 does “expressly prohibit” electronic media coverage of the following matters, which may involve children in the courtroom: child custody; support; guardianship; commitment; adoption; delinquency and neglect of minors; determination of paternity; and termination of parental rights.
CompareE. Minor testimony in non-juvenile courts
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Id. (footnotes omitted).
In Tillman v. State, 947 So.2d 993 (Miss. App. 2006), the Mississippi Court of Appeals held that the defendant's right to a public trial was not violated when the trial court excluded the public from the courtroom during testimony of a child sexual assault victim. The court recognized the sensitive nature of the testimony, the family dynamics, the emotional state of the child and the child’s age. Id. at 995. During the child’s testimony, the court was closed to everyone except necessary court personnel, the defendant, and the defendant's attorney. Id. Everyone else was allowed to return at conclusion of testimony. Id.
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
The Indian Civil Rights Act of 1968 guarantees rights similar to the First Amendment, providing that “[n]o Indian tribe in exercising powers of self-government shall . . . make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances.” 25 U.S.C. § 1302. However, tribal courts interpret the ICRA in a variety of ways, and tribes retain the right to exclude nonmember journalists from tribal property. See generally, Reporters Committee for Freedom of the Press, A Reporters Guide to American Indian Law, https://www.rcfp.org/wp-content/uploads/imported/AMERINDIAN.pdf.
The Mississippi courts do not address this issue.
CompareB. Probate
CompareC. Competency and commitment proceedings
Though Mississippi courts do not specifically address the openness of commitment proceedings, they do note the importance of protecting private mental health records. In at least one case, the Court of Appeals of Mississippi held that a son was liable for a tort claim after releasing his father’s veteran mental health records to news agencies. “A review of the jury instructions shows that the instructions correctly stated the law, that being that Mr. Mack's c-file from the VA was private and that Donald had no right to possess or disclose those records unless the information had become public.” McCorkle v. McCorkle, 811 So. 2d 258, 267 (Miss. Ct. App. 2001). It should be noted that the case focused on liability of releasing private mental health information, not the right to obtain it. Access to competency proceedings has not been addressed by the state’s courts.
CompareD. Attorney and judicial discipline
The Mississippi Supreme Court has stated that even if information regarding attorney discipline is revealed during an Ethics Commission hearing, it is still considered confidential and not subject to public access. “Given the interest in protecting the confidentiality of the information revealed to the Mississippi Ethics Commission, the fact that the information has been previously divulged should be irrelevant. However, the records, files, and the deposition of the Mississippi Ethics Commission are subject to a valid subpoena properly issued by this Court.” Miss. Ethics Comm'n v. Comm. on Prof’l Responsibility, 672 So. 2d 1222 (Miss. 1996).
CompareE. Immigration proceedings
CompareF. Other proceedings
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
CompareB. Gag orders on the press
The Mississippi Supreme Court has noted that information obtained legally from a public proceeding or document cannot be restrained. Jeffries v. State, 724 So.2d 897, 900 (Miss. 1998). In Jeffries, a circuit court judge ordered a reporter not to publish information about the defendant’s juvenile record, which was discussed in open court. Id. at 898. The reporter chose to publish in violation of the order. Id. at 899. The judge issued an arrest warrant for the reporter for contempt of court. Id. However, the Mississippi Supreme Court ruled that the circuit court’s order barring the reporter from writing about the defendant’s juvenile record was a prior restraint and was therefore presumptively invalid. Id. “Once [the circuit court judge] made the matter public, those in attendance, including the press, had a right to further disseminate the information. Therefore, the prior restraint was an invalid interference with Jeffries's [F]irst [A]mendment rights.” Id. at 899-90.
CompareC. Gag orders on participants
The Mississippi Supreme Court has held that the “clear-and-present-danger” test applies to gag orders imposed on youth court participants where no governmental interested is implicated. In re R.J.M.B., 133 So. 3d 335, 345 (Miss. 2013). In In re R.J.M.B., the court distinguished the Fifth Circuit decision in United States v. Brown, 218 F.3d 415, 428 (5th Cir. 2000), which applied the less stringent substantial-likelihood-of-harm test because, unlike Brown, no governmental interest was implicated.
CompareD. Interviewing judges
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
Even where a court finds a constitutional presumption of access to proceedings or records, that presumption can be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984).
Trade secrets and confidential commercial information
Mississippi grants special protections to both trade secrets and confidential commercial or financial information.
The Mississippi Uniform Trade Secrets Act states that “a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.” Miss. Code Ann. § 75-26-11.
Additionally, the state’s Public Records Act extends protections to “private third parties who may be in possession of information regarding their financial status and business practices that they would legitimately consider confidential, even though that information might not meet the strict test of being a trade secret as that term is defined in the Trade Secrets Act or previous judicial opinions.” See Caldwell & Gregory, Inc. v. Univ. of S. Miss., 716 So. 2d 1120, 1122 (Miss. 1998).
Sex crimes
The Mississippi Constitution provides that in prosecutions for rape, adultery, fornication, sodomy or a crime against nature “the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial.” Miss. Const. § 26 (1890).
In Tillman v. State, 947 So. 2d 993 (Miss. Ct. App. 2006), the Mississippi Court of Appeals cited the state constitution in affirming a trial court’s decision to exclude the public from the courtroom during the testimony of a witness who accused the defendant of sexual abuse. The court also cited the sensitive nature of the testimony and the emotional state of the witness. “The State correctly points out that various federal courts and the Mississippi Supreme Court have held that a court may exclude the public to the extent necessary to avoid embarrassment or emotional disturbance to a witness which might result from that witness's giving testimony in a particular case.” Id. at 995 (internal quotations omitted).
Privacy
The Supreme Court repeatedly has recognized that, under some circumstances, privacy interests can overcome a presumption of access. In Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 512 (1984), for example, the Court held that despite the presumption of access “a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment.”
The Mississippi Supreme Court has stated that the right to a public trial “may be limited by exclusion of spectators to the extent necessary to avoid embarrassment or emotional disturbance to a witness.” Lee v. State, 529 So. 2d 181 (Miss. 1988).
CompareB. Cameras and other technology in the courtroom
The Mississippi Supreme Court has stated that “prohibiting cameras does restrict the ability of the public to access the proceedings, and . . . the complete exclusion of cameras should be resorted to only after less restrictive measures have been considered and found to be inadequate.” See In re WLBT, Inc., 905 So. 2d 1196, 1199 (Miss. 2005).
The use of photography and video cameras is governed by the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC). Members of the media seeking to use electronic equipment must notify the clerk and court administrator at least 48 hours before the proceedings begin, although the presiding judge can waive or shorten this requirement. MREPC 5. Notification can be done by filing a Camera Coverage Notice, a copy of which is available on the Mississippi judiciary website. Any party can object to electronic coverage by filing a written motion no later than 15 days before the proceedings begin. MREPC 7.
The Mississippi Supreme Court set aside the trial court’s denial of a request to allow television coverage of sentencing proceedings, noting there was neither a constitutional presumption in favor of allowing television coverage of courtroom proceedings nor a constitutional prohibition against it. In re WLBT, Inc., 905 So. 2d 1196, 1198–99 (Miss. 2005). The court stated that prohibiting coverage restricts the public’s ability to access courtroom proceedings, and such exclusion should only be resorted to after less restrictive alternatives have proven inadequate. Id. at 1199. The Supreme Court held the circuit judge failed to provide sufficient reasons as to why allowing television coverage of the proceedings would have a substantial impact on the defendant’s right to a fair trial. Id. at 1200.
Under the MREPC, electronic media coverage is permitted in Mississippi trial and appellate courts, subject to the authority of the presiding justice or judge to (i) control the conduct of the proceedings, (ii) ensure decorum and prevent distraction, and (iii) ensure fair administration of justice in the pending case. MREPC 3(a).
Electronic media equipment can only be moved in or out of the courtroom before judicial proceedings begin, during recess, or at the end of the day. MREPC 4(e) (this does not apply to small, handheld electronic devices). Cameras must be “minimally intrusive”; the equipment is prohibited if it produces distracting light or sound. MREPC 4(a).
No more than one TV camera, radio audio system or still photographer is permitted unless the presiding judge says otherwise. MREPC 4(f). If a pooling arrangement is established, the information must be made available equally to all pool participants free of charge. MREPC 4(f).
No jurors or potential jurors can be shown until they are discharged; camera coverage is also prohibited during the jury selection process. MREPC 4(b). No audio recording is allowed for off-the-record conferences in the courtroom between the court and counsel, between counsel and co-counsel, or between counsel and clients or witnesses. MREPC 4(c).
Coverage of the following witnesses is prohibited: police informants, minors, undercover agents, relocated witnesses, victims and families of victims of sex crimes, and victims of domestic abuse. MREPC 3(d).
Coverage of the following matters is prohibited unless authorized by the presiding judge: divorce; child custody; support; guardianship; conservatorship; commitment; waiver of parental consent to abortion; adoption; delinquency and neglect of minors; determination of paternity; termination of parental rights; domestic abuse; motions to suppress evidence; proceedings involving trade secrets; and in camera proceedings. MREPC 3(c).
Electronic media guidelines also apply to still cameras.
The Mississippi Supreme Court and Court of Appeals broadcast their oral arguments via the Internet.
Supreme Court oral arguments are viewable in real time at: https://courts.ms.gov/appellatecourts/sc/scoa.php.
Court of Appeals oral arguments are viewable in real time at: https://courts.ms.gov/appellatecourts/coa/coaoa.php.
CompareC. Tips for covering courts in the jurisdiction
The Mississippi Supreme Court is the state court of last resort. Decisions of the Chancery, Circuit and County Courts and of the Court of Appeals may be appealed to the Supreme Court. Appeals which go directly to the Supreme Court include annexations, bond issues, constitutionality challenges, death penalty cases, disciplinary matters involving attorneys and judges, election contests, certified questions from federal court, utility rates, cases of first impression and issues of broad public interest.
The Court of Appeals hears cases assigned by the Supreme Court. The Court of Appeals hears and decides appeals on issues in which the law is already settled, but the facts are in dispute. The Supreme Court may review Court of Appeals decisions. Otherwise, the Court of Appeals decision stands.
Circuit Courts hear felony criminal prosecutions and civil lawsuits. Circuit Courts hear appeals from County, Justice and Municipal courts and from administrative boards and commissions such as the Workers’ Compensation Commission and the Mississippi Department of Employment Security.
Chancery Courts handle disputes in matters involving equity; domestic matters including adoptions, custody disputes and divorces; guardianships; sanity hearings; wills; and challenges to constitutionality of state laws. Land records are filed in Chancery Court. Chancery Courts have jurisdiction over juvenile matters in counties that have no County Court.
County Courts have exclusive jurisdiction over eminent domain proceedings and juvenile matters, among other things. In counties that have a County Court, a County Court judge also serves as the Youth Court judge. County Courts share jurisdiction with Circuit and Chancery Courts in some civil matters. The jurisdictional limit of County Courts is up to $200,000. County Courts may handle non-capital felony cases transferred from Circuit Court. County Court judges may issue search warrants, set bond and preside over preliminary hearings. County Courts have concurrent jurisdiction with Justice Courts in all matters, civil and criminal.
Justice Courts handle small claims civil cases involving amounts of $3,500 or less, misdemeanor criminal cases and any traffic offense that occurs outside a municipality. Judges may conduct bond hearings and preliminary hearings in felony criminal cases and may issue search warrants.
Drug Courts handle crimes committed by those addicted to drugs or alcohol. These special courts seek to rehabilitate drug-using offenders through drug treatment and intense supervision with drug testing and frequent court appearances.
Municipal courts handle misdemeanor crimes, municipal ordinances and city traffic violations. Judges may conduct initial appearances in which defendants are advised of the charges being filed, as well as bond hearings and preliminary hearings.
Youth courts handle cases involving offenses committed by juveniles (those younger than 18) as well cases involving the abuse and neglect of juveniles. In the 20 counties that have a County Court, those judges also serve as Youth Court judges. In counties without a County Court, the Chancery Judge may hear Youth Court matters, or the Chancery Judge may appoint a lawyer to act as Youth Court Referee. Youth court records and proceedings are generally not open to the public.
Supreme Court Justices and Administration: (601) 359-3697
Supreme Court and Court of Appeals Clerk’s Office: (601) 359-3694
Court of Appeals Judges: (601) 576-4665
Circuit Courts and lower state court information is available from their individual websites.
Written transcripts for oral arguments are not available through the clerk’s office, but audio recordings are available on CD. The recordings cost $25 and can be purchased at the clerk’s office or by mailing a request the case number and date the case was argued along with payment to the clerk’s office.
Oral arguments before the Mississippi Supreme Court can be watched live on the courts website or can be watched later at http://judicial.mc.edu/vidbrief.php, a service provided by the Mississippi College Law School.
The court system does not provide information on decorum.
A media Frequently Asked Questions website can be found at: https://courts.ms.gov/records/media.php
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