Chapter Overview

Closed Proceedings and Sealed Documents:

The public and the press have a right to attend trials and pretrial proceedings. This right is presumed when the proceeding has been historically or traditionally open, or when opening the hearing plays a significant positive role in the functioning of the judicial process. Although the right to attend a trial is not absolute, such a proceeding can be closed only in rare circumstances. Courts have permitted the closure of juvenile hearings as well as a portion of the public testimony of rape victims. The right of access to pretrial proceedings and documents is qualified. The presumption that these hearings are open can only be overcome by a showing that there is an overriding interest that must be protected, that there is a "substantial probability" that an open hearing will damage this right, that the closure is narrowly tailored to deny access to no more of the hearing than is necessary to protect this interest, that the court has considered reasonable alternatives to closure, that closure of the hearing would in fact protect the interest that has been raised, and that the trial judge has articulated findings--which may be reviewed by an appellate court--that support these four points.

Broadcast journalists are given somewhat less access when they seek to obtain copies of audio- or videotaped evidence or seek to record or televise a judicial proceeding. Access to the taped evidence is developing through a case-by-case approach, and courts have granted journalists increasing rights to make copies of this material for later broadcast. Cameras and recording devices are now permitted in courts in all but two states and the District of Columbia. The Supreme Court has ruled that the mere presence of such devices does not in and of itself prejudice a defendant's right to a fair trial. The federal courts refuse to permit cameras in the courtroom.

Bench-Bar-Press Guidelines:

In some states the press, attorneys and judges have agreed to try to solve the problems surrounding the free press-fair trial controversy through voluntary bench-bar-press agreements. Such agreements usually contain suggestions to all parties as to what information should and should not be publicized about criminal cases. When the guidelines work, there is usually a cooperative, rather than a combative, spirit among the members of the press, the judiciary and the bar. These guidelines often reduce or eliminate the need for restrictive orders or closed hearings.