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12-3 Closed Proceedings and Sealed Documents Open Courts and the Constitution – The Press-Enterprise Test 1.The party seeking closure must advance an overriding interest that is likely to be harmed if the proceeding or document is open 2.Whoever seeks the closure must demonstrate that there is a “substantial probability” that this interest will be harmed if the proceeding or document remains open
Citation preview
Mass Media Law18th Edition
Don PemberClay Calvert
Chapter 12Free Press–Fair Trial:
Closed Judicial ProceedingsMcGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.
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Closed Proceedings and Sealed Documents• Open Courts and the Constitution
– Press-Enterprise v. Riverside Superior Court (1980)• The U.S. Supreme Court ruled there was a right
under both common law and the U.S. Constitution for the public and the press to attend a criminal trial
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Closed Proceedings and Sealed Documents• Open Courts and the Constitution
– The Press-Enterprise Test 1. The party seeking closure must advance an overriding
interest that is likely to be harmed if the proceeding or document is open
2. Whoever seeks the closure must demonstrate that there is a “substantial probability” that this interest will be harmed if the proceeding or document remains open
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Closed Proceedings and Sealed Documents• Open Courts and the Constitution
– The Press-Enterprise Test 3. The trial court must consider reasonable alternatives to
closure 4. If the judge decides that closure is the only reasonable
solution, the closure must be narrowly tailored so there is an absolute minimum of interference with the rights of the press and public to attend the hearing or see the document
5. The trial court must make adequate findings to support the closure decision
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Closed Proceedings and Sealed Documents• Open and Closed Trials
– Juvenile Hearings• Traditionally, judicial hearings involving
journalists have been closed to the press and the public
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Closed Proceedings and Sealed Documents• Open and Closed Trials
– Today, most states classify juvenile hearings into two groups:
1. Those in which the juvenile is charged with a criminal offense. These hearings are presumptively open.
2. Those in which the juvenile is the subject of a hearing relating to parental neglect, abuse or a similar concern. These hearings are open in some states and closed in others.
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Closed Proceedings and Sealed Documents• Open and Closed Trials
– Victim and Witness Protection• The U.S. Supreme Court has ruled it is
permissible for a state to attempt to protect the victim of a sexual assault by permitting the closing of a trail during the victim’s testimony
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Closed Proceedings and Sealed Documents• Open and Closed Trials
– Victim and Witness Protection• Appellate courts usually permit the closure of
those portions of a trial during which an undercover police officer testifies
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Closed Proceedings and Sealed Documents• Open and Closed Trials
– Military tribunals• Press and public access to military courts is
generally open under military law• In 2006, the Supreme Court ruled that special
military commissions to try persons suspected of terror activities were unconstitutional
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Closure of Other Hearings• Presumptively Open Judicial Proceedings:
– Pretrial detention hearings– Bail hearings– Voir dire proceedings– Sentencing hearings– Attorney disciplinary hearings
• These proceedings may be closed only by a strong showing of the substantial probability of harm or other compelling interest
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Closure of Other Hearings• Closed judicial proceedings:
– Summary jury trial - a hearing to get the parties in the case to settle their dispute before going to a full-blown jury trial
– Grand jury proceedings - are secret and always have been
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Closure of Other Hearings– Deportation hearings
• The law here remains unsettled• There have been decisions both for and against
openness in deportation hearings
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Accessible and Inaccessible Documents• Presumptively open documents:
– Evidence introduced in open court– Documents filed in pretrial proceedings– Presentencing and postsentencing reports
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Accessible and Inaccessible Documents• Presumptively open documents:
– Plea agreements– Information, indictments, search warrants and
supporting affidavits, evidence and other materials related to sentencing
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Accessible and Inaccessible Documents• Documents that may be closed to
inspection include:– Juror records– Out-of-court settlements– Protective court orders– National security
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Accessible and Inaccessible Documents• Tips for Reporters When Judicial Hearing
Is Closed– Call the editor immediately to get a lawyer on
the job– Make a formal objection to the closure– Ask the judge to delay the closure until the
lawyer arrives
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Access and the Broadcast Journalist• Access to the judicial process for the
broadcast journalist involves two issues that normally don’t concern reporters in print media:– Is it possible to obtain copies of evidence
contained on audio- or videotape, and then air these tapes?
– Is it possible to broadcast or telecast the entire judicial proceeding?
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Access and the Broadcast Journalist
• Access to Evidence– Courts consider a variety of factors when
determining whether to permit the broadcast or telecast of audio- or videotaped evidence:1. Was the material introduced into evidence in open
court, or have written transcripts of the material been provided?
2. Could broadcast of the material prejudice the fair trial rights of the defendant?
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Access and the Broadcast Journalist• Access to Evidence
– Courts consider a variety of factors when determining whether to permit the broadcast or telecast of audio- or videotaped evidence:3. What people are on the audio- or videotape?4. Will airing the tape serve a public purpose?
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Recording and Televising Judicial Proceedings
• In nearly all states, cameras and/or recording devices are permitted in both trial and appellate courts
• In some states, the right to use this equipment in a courtroom is presumed; in other states, permission must be granted
• In some instances, parties involved in the legal proceeding must agree before they can be photographed
• Jurors cannot be photographed in some states
Recording and Televising Judicial Proceedings
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– The U.S. Supreme Court ruled in Chandler v. Florida (1981) that the mere presence of cameras in the courtroom does not prejudice a defendant’s right to a fair trial
Recording and Televising Judicial Proceedings
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Recording and Televising Judicial Proceedings • Federal courts refuse to permit cameras in
the courtroom• Cameras are also barred from executions
and jury deliberations in most states
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Bench-Bar-Press Guidelines• Tell law enforcement officers what kind of
information about a criminal suspect and a crime can be released and published with little danger of harm to the trial process, and
• Inform journalists that publication of certain kinds of information about a case can be harmful to the trial process
