Standard 8-5.2. Public Access to Judicial Proceedings and Related Documents and Exhibits

• Library: ABA Standards for Criminal Justice--Fair Trial and Public Discourse (ABA) (2019 Ed.)

Standard 8-5.2. Public Access to Judicial Proceedings and Related Documents and Exhibits

(a) Subject to the limitations set forth below, in any criminal matter, the public presumptively should have access to all judicial proceedings, related documents and exhibits, and any record made thereof not otherwise required to remain confidential. A court may impose reasonable time, place and manner limitations on public access.

(b) A court may issue a closure order to deny access to the public to specified portions of a judicial proceeding or to a related document or exhibit only after:

(i) conducting a hearing after reasonable notice and an opportunity to be heard on the proposed order has been provided to the parties and the public; and
(ii) setting forth specific written findings on the record that:

(A) public access would create a substantial probability of harm to the fairness of the trial or other overriding interest which substantially outweighs the defendant's or the public's interest in public access;
(B) the proposed closure order will effectively prevent or substantially lessen the potential harm; and
(C) there is no less restrictive alternative reasonably available to prevent that harm, including any of the measures listed in Standard 8-5.3 or permitting access to one or more representatives of the public.

(c) In determining whether a closure order should issue, the court may accept the items for which a seal is being requested under seal, in camera or in any other manner designed to permit a party to make a prima facie showing without public disclosure of that matter. The motion seeking to close access to those items must itself, however, be filed in open court unless the requirements of subsection (b) are met.

(d) If the court issues a closure or sealing order, the court should consider imposing a time limit on the duration of that order and requiring the party that sought the order to report back to the court within a specified time period as to whether continued closure or sealing is justified pursuant to the requirements set forth in subsection (b). If those requirements are no longer met, the documents or transcripts of any sealed proceeding should be unsealed.

Related Standards

ABA Standards for Criminal Justice, Special Functions of the Trial Judge 6-1.8 (3d ed. 2000)

Commentary

Paragraph (a)

This Standard adopts a broad presumption of public access to criminal proceedings and related documents that is substantively unchanged from the prior edition of these Standards. In Nixon v. Warner Communications,⁶⁰ the Supreme Court held that judicial documents are covered by a common law right of access and are therefore presumptively available to the public. Then, beginning with Richmond Newspapers Inc. v. Virginia,⁶¹ the Supreme Court has consistently held that the public has a broad First Amendment right of access to the workings of the criminal justice system.⁶² The Courts of Appeals and state supreme courts have accepted and extended the holdings of Richmond Newspapers and its progeny to a variety of contexts.⁶³ Many states also have open records laws that supplement this case law to ensure public access to judicial documents and proceedings.⁶⁴ Certain types of proceedings and documents, such as grand jury materials and jury deliberations, which historically have been secret, and for which secrecy serves an important function, still generally may be kept confidential.⁶⁵ Accordingly, the Standard takes the view that the public presumptively should have access to all judicial proceedings and related documents and exhibits, and records made thereof, not otherwise required to be confidential, for the duration of any criminal matter.

In contrast with the previous edition of this Standard, this Standard does not define "judicial proceedings" or "related documents and exhibits," leaving those terms to be construed broadly in accordance with their ordinary meaning and in light of Richmond Newspapers and its progeny. However, the definitions used in the prior edition remain instructive. They defined a "judicial proceeding" as including "all legal events that involve the exercise of judicial authority and materially affect the substantive or procedural interests of the parties, including courtroom proceedings, applications, motions, plea-acceptances, correspondence, arguments, hearings, trials and similar matters."⁶⁶ The prior edition defined "related documents and exhibits" as "all writings, reports, and objects, to which both sides have access, relevant to any judicial proceeding in the case which are made a matter of record in the proceeding."⁶⁷ The new edition contemplates that all of these enumerated events and documents still would fall within the standard. But whereas the prior edition also explicitly provided that the definition of "judicial proceeding" did not include "bench conferences or conferences on matters customarily conducted in chambers," today this caveat seems less than fully supportable as a blanket statement. Depending on the subject matter discussed at the bench conference or in chambers, there may indeed be a First Amendment or common law right of public access at least to the transcript of the proceedings.⁶⁸ That is not to say that all communications with counsel in the ordinary course of managing litigation, no matter how minor, must be open to the public. Nevertheless, the general presumption ought to be in favor of openness.

Acknowledging the public's right of access does not, however, imply that the trial judge does not have discretion in imposing reasonable time, place, and manner restrictions on that access. For example, certain brief evidentiary arguments may need to take place at sidebar, rather than in open court, during a jury trial.⁶⁹ The public may not immediately have access to that argument, but it will once the transcript is made available. The Standards contemplate that such delayed access is reasonable, in order to prevent the trial from grinding to a halt.⁷⁰ Similarly, trial exhibits, including physical evidence, videotapes, and audiotapes, may not be immediately available to the public upon being admitted into evidence but should be made available as soon as reasonably practicable thereafter—for example, by the next business day after they were published to the jury.⁷¹ Frequently, courts can work with members of the public and the media to make such documents available on a pool basis.⁷² Electronic filing also has lessened many of the practical and financial burdens associated with making documents widely available. Documents can be scanned by a court clerk and posted electronically on the court's website, allowing those who wish to access them to do so directly.⁷³ It is expected that advances in technology will make it ever easier and less expensive for courts to provide public access to a variety of materials.

Paragraph (b)

Paragraph (b) sets forth the considerations and procedures that a court should heed before closing a proceeding or sealing a document or transcript, or portion thereof, that would otherwise presumptively be open to the public. As was true of paragraph (a), the substance is largely the same as the prior edition of these Standards and derives from the Supreme Court's decisions in Richmond Newspapers and Press-Enterprises I and II.⁷⁴ First, before issuing a closure order, the court must afford reasonable notice and an opportunity to be heard to the parties and the public (unless such notice in and of itself would cause the harm that the closure seeks to avoid, a situation addressed in paragraph (c) of the Standard).⁷⁵ Second, after providing such an opportunity, the court should issue a closure order only if it finds that public access would create a substantial probability of harm to the fairness of the trial⁷⁶ or another overriding interest⁷⁷ that substantially outweighs the defendant or the public's interest in public access. Courts have found the following additional interests sufficient to justify full or partial closure: the privacy rights and safety of jurors,⁷⁸ witnesses,⁷⁹ and defendants;⁸⁰ the continuing nature of government investigations;⁸¹ the security of government buildings;⁸² and national security interests more broadly.⁸³ Proceedings involving juveniles also are frequently subject to closure.⁸⁴

Third, the court must find that the closure order is narrowly tailored to address the...