Criminal Case Proceedings Have a Constitutional Presumption of Openness
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (plurality opinion) The U.S. Supreme Court recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.”
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) The U.S. Supreme Court in this case decided whether a statute which required mandatory exclusion of the press and public from the courtroom when minors testify about sexual assaults violates the First Amendment as applied to the States through the Fourteenth Amendment. They concluded that although there is a compelling interest for doing so in many cases, the statute is unconstitutional due to its mandatory nature. However, the case left trial judges the discretion to close courtrooms on a case by case basis.
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I) The U.S. Supreme Court in this case was asked to decide if the closure of a portion of voir dire for the purposes of juror privacy and increased candor violates the First Amendment as applied to the States through the Fourteenth Amendment. In this case, all but three days of a six-week voir dire process was open to the press and public. The Court found a constitutional violation and reversed the case because there were no individualized findings to support the trial court's conclusion that an open proceeding would threaten the defendant's right to a fair trial and the prospective jurors' interests in privacy.
Waller v. Georgia, 467 U.S. 39 (1984) The defendants in this case were wiretapped by the state police. The state moved to close the suppression hearing regarding the admissibility of the tapes obtained by the wiretaps and the motion was granted over the objection of the defendant. The U.S. Supreme Court held that Under the Sixth Amendment, any closure of a suppression hearing over the objections of the accused must meet the following tests: the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; the closure must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the hearing; and it must make findings adequate to support the closure. The case was reversed and remanded.
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II) The U.S. Supreme Court determined that a qualified First Amendment right of access attaches to state court preliminary hearings. The proceedings cannot be closed to the press and/or public unless specific, on-the-record findings are made demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest."
Presley v. Georgia, 558 U.S. 209 (2010) In this case, the defendant asserted his right under the Sixth and Fourteenth Amendment to have voir dire open to public. The U.S. Supreme Court had previously determined that the press and public had a First Amendment Right to be present for voir dire. The Court determined that a criminal defendant has a qualified right to public voir dire which can only be circumvented with findings by the trial court that there was no other reasonable way to protect the safety of the jurors or integrity of the process.
Civil Case Proceedings Have a Constitutional Presumption of Openness
Newman v. Graddick, 696 F.2d 796 (1981, 11th Circuit) In this case, the press petitioned to get access to judicial records and gain access to hearings in a civil action regarding prison overcrowding. The crux of the problem was the media sought access to a list of inmates that may be released to alleviate the overcrowding. The court offered to allow the press to view the list, provided the press would promise not to publish it. The press declined the offer. The 11th Circuit determined that although this case was civil, it was sufficiently like a criminal trial in that it pertained to inmates so that the press had a First Amendment right to access the proceedings and the records. The court declined to extend this right to all civil cases.
In re Astri Invest., Management & Sec. Corp. 88 BR 730 (1988, DC Md) In this case, the press appealed from an order excluding them from attending a creditors' meeting in bankruptcy court. The district court noted that public access to a creditor’s meeting was one of first impression. The court stated, “Both the history and the function and policy of our bankruptcy laws require the conclusion that a presumptive First Amendment right of access to creditors' meetings exists a right which should not be denied unless, in a given case, there is a showing that a restriction of access "is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise I, 464 U.S. at 510, 104 S. Ct. at 824.”
Restraints on Publishing
Chandler v. Florida, 449 U.S. 560 (1981) The defendants in this case claimed that their right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments was violated by the trial judge authorizing television coverage of a portion of the case. The U.S. Supreme Court found no constitutional violation in this case. Furthermore, the broadcasting policy was implemented with strict guidelines intended to protect the right of a defendant to a fair trial. For example, the state required courts to protect certain witnesses from the "glare of publicity" and to hear and consider arguments from a defendant who feels that electronic coverage may bias the jury.
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) A Massachusetts statute required a closure of sexual assault cases to the public and press when the victim was under the age of 18 testified. Globe Newspaper Company challenged the statute as violating the First Amendment. The U.S. Supreme Court found that the statute did violate the first Amendment in that it precluded access in all circumstance falling under the statute. However, they also said that the right of access to criminal trials is not absolute, but the circumstances under which the press and public can be barred are limited. The State must show that denial of such right is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest.
Publicker Industries, Inc. v Cohen, 733 F2d 1059 (1984, 3rd Circuit) Appellants, Philadelphia Newspapers, Inc. and Dow Jones & Company, Inc., appealed a decision of the district court which closed a hearing on motions for preliminary injunctions to the public and the press. The appellate court determined that “the public and the press possess a First Amendment and a common law right of access to civil proceedings; indeed, there is a presumption that these proceedings will be open. The trial court may limit this right, however, when an important countervailing interest is shown.” The opinion then identifies certain procedural and substantive requirements that must be satisfied before a court can deny access to civil proceedings.
Confidentiality of Case Specific Juror Questionnaires
Note: Courts should never promise jurors that case-specific juror questionnaires will not be released to the press and/or public. There is a growing body of caselaw that supports the proposition that case-specific juror questionnaires are an alternative form of voir dire and are therefore available for public scrutiny. However, jurors may be entitled to have specific responses sealed based on finding(s) from the court. This is a similar concept to allowing jurors to answer particularly sensitive questions in camera. The following cases support these concepts:
State ex rel. Cincinnati Enquirer v. Ghiz, (The Court of Appeals, First Appellate District of Ohio, December 13, 2017.) The trial judge had noted on the record that “Of the 180 completed forms [juror questionnaires], the court found that 38 individuals had said that they would not be willing to serve if their identities became known publicly, and 39 individuals said they would be 'concerned about their personal safety, reputation or standing in their community among family, friends and associates' should they be asked to serve on the jury." Based on this, the trial judge refused to release the completed questionnaires to the media causing them to appeal. The appellate court found that the right to access completed juror questionnaires arises from the Free Speech and Free Press Clauses of the First Amendment to the United States Constitution, together with the analogous provision of Article I, Section 11 of the Ohio Constitution and the “open courts” provision of Article I, Section 16 of the Ohio Constitution. Therefore, they ruled that the juror questionnaires must be released to the media but the juror's names and addresses may be redacted.
Forum Communications Co. v. Paulson, 752 N.W.2d 177 (Supreme Court of North Dakota, 2008). The trial judge promised jurors that the case-specific juror questionnaires would remain sealed, that ruling was challenged by the media based on the First Amendment right of access to criminal trials. The Supreme Court of the State of North Dakota determined that there is a presumption of openness in the questionnaires which can only be overcome “by an overriding interest, which must be articulated along with specific findings sufficient to allow a reviewing court to determine whether the closure order was properly entered.” The case was remanded to allow the trial court to “articulate specific findings to establish whether the presumption of access has been rebutted with regard to any questions or categories of the questionnaire.”
Stephens Media, LLC v. Eighth Judicial Dist. Court, 125 Nev. 849 (Supreme Court of Nevada, 2009). This case started as a motion to intervene by the press for the limited purpose of obtaining a blank copy of the juror questionnaire before oral voir dire and completed questionnaires of the jurors and alternates who were ultimately selected to serve as members of the jury in the trial of Orenthal “O.J.” Simpson. The press alleged they had a First Amendment right to access a criminal trial and that right should extend to the questionnaires. The Supreme Court of Nevada agreed and determined that juror questionnaires are part of the jury-selection process and are, therefore, subject to the same public-access requirements as live voir dire.
In re Access to Jury Questionnaires, 37 A.3d 879 (DC Court of Appeals, 2012). This case is factually and legally very similar to Forum Communications Co. v. Paulson . The DC Court of Appeals held that the press, “as a surrogate for the public, has a presumptive right of access to the jury questionnaires used in this case, and the trial court erred in not recognizing that right. We further hold that the trial court erred by failing to exercise its discretion in making specific findings about the protectible privacy interests at stake and considering alternatives to complete closure. We therefore reverse and remand for further proceedings consistent with this opinion.”
Oregon v. Turnidge, 359 Ore. 364 (Supreme Court of Oregon, 2016).In this case, the juror questionnaires contained an express statement that they would be destroyed following the trial. Both the defense and the prosecution objected to their destruction, but this occurred after the questionnaires were completed. The trial judge did allow the attorneys to read any responses they wished into the record. On appeal, the defendant claimed a Fifth Amendment Due Process violation. The Supreme Court of Oregon found that the destruction of the questionnaires was not a violation of due process. However, they were critical of the decision to destroy the questionnaires as they acknowledged that they can be important for appellate review.