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Washington

Open Courts Compendium

Author

Eric M. Stahl and Ben Robbins
Davis Wright Tremaine LLP
920 Fifth Avenue, Suite 3300
Seattle, WA 98104-1610

Last updated June 14, 2019

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

The U.S. Supreme Court has repeatedly held that the public’s right to open court proceedings is protected by the First Amendment.  See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press Enterprise Co. v. Superior Court, 478 U.S. 1, 9, 10 (1986).

In Washington, the right to open court proceedings is constitutionally mandated by article I, section 10 of the state constitution, which provides: “[j]ustice in all cases shall be administered openly, and without unnecessary delay.”  Washington courts have a duty to ensure “the right of the people to . . . freely observe the administration of civil and criminal justice.”  Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 211, 848 P.2d 1258 (1993).

The Washington Supreme Court has expressly held that art. I, sec. 10 “guarantees the public and the press a right of access to judicial proceedings and court documents in both civil and criminal cases.”  Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861, 866 (2004).  The Court has relied on this constitutional requirement to guarantee meaningful public access to judicial proceedings and records in a variety of contexts, as further detailed below.

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B. Overcoming a presumption of openness

Limitations on access under the state’s constitutional provisions may be permitted when the following five-prong analysis (commonly referred to as the Bone-Club or Ishikawa analysis) is conducted:

1) the proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a "serious and imminent threat" to that right;

2) anyone present when the closure motion is made must be given an opportunity to object to the closure;

3) the proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests;

4) the court must weigh the competing interests of the proponent of closure and the public; and

5) the order must be no broader in its application or duration than necessary to serve its purpose.

Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).

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C. Procedural prerequisites to closure

As part of the Bone-Club/Ishikawa analysis, the judge must provide anyone present at the time of the closure motion the opportunity to object to closure.  See Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).

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

A. Media standing to challenge closure

Members of the media have standing to challenge closures of court proceedings.  Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 35, 640 P.2d 716 (1982).

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B. Procedure for requesting access in criminal cases

As part of the Bone-Club/Ishikawa analysis, the judge must provide anyone present at the time of the closure motion the opportunity to object to closure.  See Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).  Often this is done informally, without the need for formal intervention in the case.

Normally, third parties have no right to intervene in criminal cases.  The Washington Supreme Court has held, however, that members of the media may seek to intervene in criminal matters for limited purposes, including moving to unseal records after trial is completed.  Yakima v. Yakima Herald-Republic, 170 Wn.2d 775, 800, 246 P.3d 768 (2011).

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C. Procedure for requesting access in civil matters

As part of the Bone-Club/Ishikawa analysis, the judge must provide anyone present at the time of the closure motion the opportunity to object to closure.  See Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).  Third parties are entitled to intervene in civil matters, though in practice, courts often hear media arguments on access issues without the need for formal intervention.

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D. Obtaining review of initial court decisions

Where formal intervention has occurred, the intervening party has a right to appeal a trial court’s final judgment.  Access decisions more typically are decided on interlocutory orders, which may be reviewed by requesting discretionary review from the appellate courts.

Where intervention is not available, the Washington Supreme Court has recognized that an original mandamus action is a “proper form of action for third party challenges to closure orders in criminal proceedings.”  Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 35, 640 P.2d 716 (1982); Seattle Times Co. v. Serko, 170 Wn.2d 581, 590, 243 P.3d 919 (2010) (“[W]e have affirmed the use of a writ of mandamus for a third party seeking the disclosure of information that potentially impacts a criminal trial.”).

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III. Access to criminal proceedings

A. In general

The public’s right of access to court proceedings extends to all stages of criminal proceedings.  State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012) (“There is a strong presumption that courts are to be open at all stages of the trial.”).

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B. Pretrial proceedings

The public’s right of access to court proceedings extends to all stages of criminal proceedings because, as the Washington Court of Appeals has noted, a “criminal proceeding is more than just the actual trial.”  State v. Loukaitis, 82 Wash. App. 460, 469, 918 P.2d 535 (1996).  The public’s right of access extends generally to all “pretrial proceedings,” State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006), including suppression hearings, State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), voir dire, State v. Paumier, 176 Wn.2d 29, 35, 288 P.3d 1126 (2012); individual questioning of potential jurors, State v. Wise, 176 Wn.2d 1, 4, 288 P.3d 1113 (2012), and jury selection, State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009).

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C. Criminal trials

Both the public and criminal defendants have a constitutional right to public criminal trial proceedings.  State v. Easterling, 157 Wn.2d 167, 137 P.3d 825, 828 (2006).  This right does not extend to a jury’s rehearing of evidence during deliberations.  See State v. Magnano, 181 Wash. App. 689, 326 P.3d 845 (2014).

A restriction on access to a criminal trial requires the court to conduct a Bone-Club/Ishikawa analysis.  A failure to perform a Bone-Club/Ishikawa analysis can amount to constitutional error requiring reversal of criminal convictions or a new trial.  See, e.g., State v. Frawley, 181 Wn.2d 452, 460, 467, 469, 334 P.3d 1022 (2014) (in-chambers questioning of prospective jurors without performing Bone-Club analysis required reversal). But see State v. Schierman, 192 Wn.2d 577, 438 P.3d 1063 (2018) (holding as a matter of first impression that defendant’s absence from arguments and rulings on for-cause juror challenges was de minimis violation of public trial right that did not require reversal of his conviction and sentence) (lead opinion).

Washington courts have applied the “experience and logic” test when considering whether in camera proceedings should be open or closed.  See, e.g., State v. Miller, 179 Wash. App. 91 (2014).

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D. Post-trial proceedings

The public’s right of access to court proceedings extends to all stages of criminal proceedings.  State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012).

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E. Appellate proceedings

Appellate hearings are open to the public.  The Washington Court of Appeals makes available audio recordings of oral arguments, which can be accessed at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showDateList&courtId=a01&archive=y. Video recordings of hearings before the Washington State Supreme Court are available at www.tvw.org.

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IV. Access to criminal court records

A. In general

The public’s right of access to court proceedings includes the right of access to case records, and any limitations are subject to the five-factor Bone-Club/Ishikawa test.  Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004).  Under the Bone-Club/Ishikawa framework,

1) the proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “serious and imminent threat” to that right;

2) anyone present when the closure motion is made must be given an opportunity to object to the closure;

3) the proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests;

4) the court must weigh the competing interests of the proponent of closure and the public; and

5) the order must be no broader in its application or duration than necessary to serve its purpose.

Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).

In addition to the Bone-Club/Ishikawa factors, decisions to seal or redact records must comply with state court General Rule 15.  In re Dependency of M.H.P., 184 Wn.2d 741, 364 P.3d 94 (2015); State v. Waldon, 148 Wn. App. 952, 962-67, 202 P.3d 325 (2009).        GR 15(c) permits court files and records to be sealed or redacted only after a hearing and written findings by the judge that compelling privacy or safety concerns outweigh public interest in access.  Failure to comply with either Ishikawa or GR 15 is reversible error.  See In re Marriage of R.E., 144 Wn. App. 393, 404-06, 183 P.3d 339 (2008) (reversing trial court when sealing order “[did] not comply with GR 15”).

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B. Arrest records

Arrest records in criminal case files are treated like other court records and are presumptively accessible to the public unless they have been sealed pursuant to the stringent tests applicable to all court records.

Records held by state or local police agencies are subject to Washington’s Public Records Act, RCW ch. 42.56, and are presumptively subject to disclosure upon request unless a specific exemption applies.  Police investigative records may be withheld or redacted to the extent nondisclosure is essential to law enforcement or to protect a person’s right to privacy.  RCW 42.56.240(1).  Investigative records related to pending criminal matters are presumptively subject to disclosure once a suspect has been arrested and referred to the prosecutor for a charging decision.  Seattle Times Co. v. Serko, 170 Wn.2d 581, 243 P.3d 919 (2010); Cowles Publ’g Co. v. Spokane Police Dep’t, 139 Wn.2d 472, 987 P.2d 620 (1999).

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C. Dockets

Court dockets are subject to the constitutional right of access.  State v. Richardson, 177 Wn.2d 351, 360, 302 P.3d 156 (2013) (the “presumption that court records are open would be meaningless if court dockets could be sealed without justification”).

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Executed search warrants and accompanying affidavits are presumed open unless a law enforcement or privacy interest amounts to “good cause” for closure under the common law.  See Cowles Publ’g Co. v. Murphy, 96 Wn.2d 584, 637 P.2d 966 (1981); Washington v. Gutierrez, 1993 WL 568713 (Wash. Super. Ct. 1993).  However, the public does not have a right to access a search warrant or accompanying affidavit in an unfiled criminal case.  Seattle Times Co. v. Eberharter, 105 Wn.2d 144, 157, 713 P.2d 710 (1986) (reasoning that public interest in discovering and capturing the perpetrator of a criminal act outweighed public interest in affidavit accompanying search warrant in unfiled criminal case).

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E. Discovery materials

The state constitution does not entitle the public to access unfiled discovery materials.  Discovery materials may be sealed after a showing of “good cause,” which is less stringent than the Bone-Club/Ishikawa standard.  See Dreiling v. Jain, 151 Wn.2d 900, 909–10, 93 P.3d 861 (2004); Rufer v. Abbott Labs., 154 Wn.2d 530, 541 114 P.3d 1182 (2005).

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F. Pretrial motions and records

The public’s right of access extends to “transcripts of pretrial hearings or trials” and “exhibits introduced at pretrial hearings or trials.”  Seattle Times Co. v. Eberharter, 105 Wn.2d 144, 155, 713 P.2d 710 (1986).  An exception may exist for records that are filed but never considered by the court, such as sealed documents that are filed in support of a motion that is not decided because the case settles before the motion is heard.  Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 291 P.3d 886 (2013).

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G. Trial records

The public’s right of access extends to “transcripts of pretrial hearings or trials” and “exhibits introduced at pretrial hearings or trials.”  Seattle Times Co. v. Eberharter, 105 Wn.2d 144, 155, 713 P.2d 710 (1986).

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H. Post-trial records

I. Appellate records

Appellate hearings are open to the public.  The Washington Court of Appeals makes available audio recordings of oral arguments, which can be accessed at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showDateList&courtId=a01&archive=y.  Video recordings of hearings before the Washington State Supreme Court are available at www.tvw.org.

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J. Other criminal court records issues

V. Access to civil proceedings

A. In general

The public’s right of access to court proceedings includes the right of access to case records, and any limitations are subject to the five-factor Bone-Club/Ishikawa test.  Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004).  Under this framework:

1) the proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “serious and imminent threat” to that right;

2) anyone present when the closure motion is made must be given an opportunity to object to the closure;

3) the proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests;

4) the court must weigh the competing interests of the proponent of closure and the public; and

5) the order must be no broader in its application or duration than necessary to serve its purpose.

Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).

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B. Pre-trial proceedings

The constitutional standards governing access to civil trials apply equally to pre-trial procedures.

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C. Trials

The state constitution “mandates an open public trial in a civil case” absent an applicable statutory exception or compelling reasons for closure.  Cohen v. Everett City Council, 85 Wn.2d 385, 388–89, 535 P.2d 801 (1975).

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D. Post-trial proceedings

The constitutional standards governing access to civil trials apply equally to post-trial procedures.

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E. Appellate proceedings

Appellate hearings are open to the public.  The Washington Court of Appeals makes available audio recordings of oral arguments, which can be accessed at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showDateList&courtId=a01&archive=y.  Video recordings of hearings before the Washington State Supreme Court are available via www.tvw.org.

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VI. Access to civil records

A. In general

The sealing of court records in civil and criminal cases is governed by the five-factor Bone-Club/Ishikawa test.  Dreiling v. Jain, 151 Wn.2d 900, 915, 93 P.3d 861, 870 (2004).  Under the Bone-Club/Ishikawa framework,

1) the proponent of closure or sealing must make some showing of the need for doing so, and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “serious and imminent threat” to that right;

2) anyone present when the closure motion is made must be given an opportunity to object to the closure;

3) the proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests;

4) the court must weigh the competing interests of the proponent of closure and the public; and

5) the order must be no broader in its application or duration than necessary to serve its purpose.

Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36–39 (1982); State v. Bone-Club, 128 Wn.2d 254, 258–59 (1995).

In addition to the Bone-Club/Ishikawa factors, decisions to seal or redact records must comply with state court General Rule 15.  In re Dependency of M.H.P., 184 Wn.2d 741, 364 P.3d 94 (2015); State v. Waldon, 148 Wn. App. 952, 962-67, 202 P.3d 325 (2009).        GR 15(c) permits court files and records to be sealed or redacted only after a hearing and written findings by the judge that compelling privacy or safety concerns outweigh public interest in access.

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B. Dockets

Court dockets are subject to the constitutional right of access.  State v. Richardson, 177 Wn.2d 351, 360, 302 P.3d 156 (2013) (the “presumption that court records are open would be meaningless if court dockets could be sealed without justification”).

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C. Discovery materials

The state constitution does not entitle the public to access discovery materials. Discovery materials may be sealed after a showing of “good cause,” which is less stringent than the Bone-Club/Ishikawa standard.  See Dreiling v. Jain, 151 Wn.2d 900, 909–10, 93 P.3d 861 (2004); Rufer v. Abbott Labs., 154 Wn.2d 530, 541 114 P.3d 1182 (2005).

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D. Pre-trial motions and records

The heightened presumption of openness applicable to trials “applies equally” to motions filed in civil cases.”  Rufer v. Abbott Labs., 154 Wn.2d 530, 542, 114 P.3d 1182 (2005); Dreiling v. Jain, 151 Wn.2d 900, 93 P.3d 861 (2004).  Such motions may only be sealed as permitted under GR 15 and the Bone-Club/Ishikawa factors.  Dreiling v. Jain, 151 Wn. 2d 900, 915, 93 P.3d 861, 870 (2004).  An exception may exist for records that are filed but never considered by the court, such as sealed documents that are filed in support of a motion that is not decided because the case settles before the motion is heard.  Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 291 P.3d 886 (2013).

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E. Trial records

F. Settlement records

G. Post-trial records

H. Appellate records

I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

The public right of access to criminal proceedings extends to voir dire.  See In re Personal Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004) (reversing conviction where trial court closed voir dire for reasons of space limitations and vague reference to security concerns).

One court has found that this presumption of access does not apply to individual questioning in chambers of a juror about alleged misconduct.  See State v. Halverson, 176 Wash. App. 972, 309 P.3d 795 (2013).

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B. Juror identities, questionnaires and other records

The public right of access to court documents and proceedings does not extend to juror questionnaires.  See State v. Beskurt, 176 Wn.2d 441, 448, 293 P.3d 1159 (2013).

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C. Grand jury proceedings and records

RCW 10.27.090 prohibits the disclosure of grand jury proceedings.  The Washington Supreme Court has stated that the right of public access does not extend to “judicial proceedings in the investigatory process.”  Seattle Times Co. v. Eberharter, 105 Wn.2d 144, 157, 713 P.2d 710 (1986) (reasoning that public interest in discovering and capturing the perpetrator of a criminal act outweighed public interest in affidavit underlying search warrant in unfiled criminal case).

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D. Interviewing jurors

VIII. Proceedings involving minors

A. Delinquency

B. Dependency

Under RCW 13.34.110 and 13.50, juvenile dependency proceedings and records are confidential. Appellate proceedings are not governed by these statutes and may only be closed if compelling circumstances are present.  See In re: J.B.S., 856 P.2d 694 (1993).

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C. Other proceedings involving minors

Juvenile justice proceedings appear to be an exception to the state constitutional right of access. State v. S.J.C., 183 Wn.2d 408, 352 P.3d 749 (2015) (sealing of juvenile court records not subject to article I, §10; courts should apply statutory test, not Ishikawa factors, in deciding whether to seal); In re Lewis, 51 Wn.2d 193, 198 (1957).

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D. Prohibitions on photographing or identifying juveniles

A Washington statute prohibiting the identification of child sexual assault victims was found to violate the state constitution’s guarantee of open courts.  Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 212, 848 P.2d 1258 (1993).  Courtroom photography is governed by General Rule 16, which does not contain a per se prohibition on photographing juveniles but permits courts to impose limits on photography based on compelling, particularized circumstances.

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E. Minor testimony in non-juvenile courts

IX. Special proceedings

A. Tribal Courts in the jurisdiction

B. Probate

C. Competency and commitment proceedings

Once competency records become judicial records, they become subject to the constitutional presumption of access.  However, particular information may be redacted to protect privacy interests.  See State v. Chen, 178 Wn.2d 350 (2013).

The Washington Supreme Court held that a procedural rule automatically closing commitment hearings violated the state constitution, which extends the right of access to commitment proceedings.  In re Det. of D.F.F., 172 Wn.2d 37, 42, 256 P.3d 357 (2011).

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D. Attorney and judicial discipline

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

B. Gag orders on the press

The Washington Supreme Court has recognized that “the United States Constitution … prohibits prior restraints against publication or broadcast of information lawfully obtained from court records or proceedings.”  State v. Coe, 101 Wn.2d 364, 380, 679 P.2d 353 (1984).

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C. Gag orders on participants

A trial court order that forbids future communication is a prior restraint on the exercise of free speech that is presumptively unconstitutional.  State v. Bassett, 128 Wn.2d 612, 615, 911 P.2d 385 (1996) (holding pretrial gag order against attorneys was unconstitutional prior restraint).  Such a restriction is only permissible if the court finds at least a “reasonable likelihood that pretrial publicity will prejudice a fair trial.”  Id. at 616.

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D. Interviewing judges

XI. Other issues

A. Interests often cited in opposing a presumption of access

The Washington Supreme Court has stated that the “defendant’s right to a fair and speedy trial, the potential jurors’ right to privacy, the judge’s obligation to provide a safe and orderly courtroom, and many other considerations may justify a courtroom closure.”  State v. Slert, 181 Wn.2d 598, 604, 334 P.3d 1088, 1091 (2014) (plurality opinion) (holding in-chambers examination of jury questionnaires, leading to dismissal of potential jurors, did not violate defendant’s right to public trial).  But such claims rarely result in closure:  a generalized concern for the defendant’s fair trial rights, without articulation of the particular unfairness or prejudice that would result, is insufficient to justify a closure.  See Seattle Times Co. v. Serko, 170 Wn.2d 581, 594–96, 243 P.3d 919 (2010).

Resolution of “mundane issues,” such as those resolved at sidebar conferences, does not rise to the level of public interest necessary to implicate the public’s right to access court proceedings.  See State v. Smith, 181 Wn.2d 508, 515, 334 P.3d 1049, 1053 (2014).

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B. Cameras and other technology in the courtroom

General Rule 16 provides that “video and audio recording and still photography by the news media are allowed in the courtroom” unless the judge makes “particularized findings on the record” that “sufficient reasons exist to warrant limitations on courtroom photography or recording.”  Although permission to video and audio record must be expressly granted by the judge before recording, open access is “presumed.”  GR 16 further instructs that in “determining what, if any, limitations should be imposed the judge shall be guided by the following principles”:

(1) Open access is presumed; limitations on access must be supported by reasons found by the judge to be sufficiently compelling to outweigh that presumption;

(2) Prior to imposing any limitations on courtroom photography or recording, the judge shall, upon request, hear from any party and from any other person or entity deemed appropriate by the judge; and

(3) Any reasons found sufficient to support limitations on courtroom photography or recording shall relate to the specific circumstances of the case before the court rather than reflecting merely generalized views.

Commentary to the rule includes “illustrative guidelines,” carried over from earlier access rules, suggesting the following practices are favored (though subject to the trial judge’s discretion):

  • Broadcasters wishing to record a proceeding should contact the courtroom bailiff prior to the start of a court session.
  • Generally, a single television camera will be allowed, and interested media should arrange for “pooling” outside the courtroom.
  • Broadcast equipment should be unobtrusive and handled inconspicuously and quietly and should be in place at least 15 minutes before the start of each court session.

Broadcasting a trial does not infringe on a criminal defendant’s due process rights, unless he can show specific prejudice.  See State v. Wixon, 30 Wash. App. 63, 631 P.2d 1033 (1981).

Washington courts have upheld prohibitions on photographing juvenile witnesses without their consent.  See State v. Russell, 141 Wash. App. 733, 172 P.3d 361 (2007).

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C. Tips for covering courts in the jurisdiction

Washington was one of the first judiciaries in the country to permit broadcasting of state court proceedings.  Camera access is presumptively allowed, and fairly routine in larger jurisdictions.  Reporters should contact the courtroom bailiff to make their “GR 16 request,” preferably with as much advance notice as possible, so that any legal or logistical concerns can be worked out ahead of time.

The Bench-Bar-Press Committee of Washington was formed in 1963 and has served as a national model for fostering working relationships and mutual understanding among judges, lawyers and journalists regarding access issues.  The committee has developed a set of voluntary “Bench-Bar-Press Principles,” which are not binding, but which provide practical guidance to litigants, judges, and the press regarding news coverage of trials and judicial proceedings.  A subcommittee, known as the “Fire Brigade,” is available to address or mediate access issues, and can be a useful informal resource for journalists facing barriers to access.  Information about these resources is available through the Bench-Bar-Press Committee website, http://www.courts.wa.gov/committee/?fa=committee.home&committee_id=77.

 

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