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Guidelines on the Public's Right of Access to Judicial Proceedings and Records
Massachusetts Supreme Judicial Court Rules
Sections 1 and 2
Originally from: http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/pubaccess1-2.html
As usual the Massachusetts family courts and district courts overstep their authority and bounds by restricting camera
and recording equipment, which is designed to keep the courts honest and in the public view.
Note that their policy is contrary to the letter and spirit of the U.S. Supreme court and obviously design to mask their unlawful activities and protect them from prosecution and scrutiny

    Judicial proceedings should not be shrouded in secrecy. Access fosters informed public discussion of governmental affairs. "It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). Only the most compelling reasons justify the closure of judicial proceedings or the nondisclosure of judicial records. Access to judicial records and proceedings shall not be restricted to any class or group of persons. (1) The media's right of access to judicial proceedings and records derives entirely from the public's right of access. The media has neither a greater nor a lesser right to be present than any other member of the public. (2)

    The general principle of publicity is embodied in multiple legal authorities: the First Amendment to the United States Constitution; article XVI of the Massachusetts Declaration of Rights (as amended by article LXXVII); legislative enactments; common law; and court rules. 


  1. Framework: There is a recognized common law and/or constitutional qualified right of access by the public to most criminal and civil proceedings. (3) When a qualified First Amendment right of access attaches to a proceeding, the proceeding cannot be closed 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." (4) Thus, if the interest asserted is the right of the accused to a fair trial, the proceeding only shall be closed if specific findings are made demonstrating, first, that there is a substantial probability the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent (5) and, second, that reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. (6) The trial court should consider all reasonable alternatives to closure and fashion a closure order that is no broader than necessary. (7)

  2. Procedural Issues: Those who oppose the entry or maintenance of a closure order must be given an opportunity to be heard by the trial court. (8) One need not file a formal motion to intervene in order to be heard in opposition to the order. (9) The hearing contesting closure should be completed expeditiously. (10) A closure order is immediately appealable.

  3. Specific Proceedings:

    1. Presumptively Open:

      1. Arraignment. (11)
      2. Bail hearings. (12)
      3. Probable cause hearings. (13)
      4. Voir dire. (14)
      5. Suppression hearings. (15)
      6. Trials, even during the testimony of a minor sex offense victim. (16)
      7. Post-trial hearings. (17)
      8. Juvenile proceedings where the Commonwealth has proceeded by indictment, or where the defendant is accused of having committed murder on or after July 27, 1996. (18)
      9. Proceedings to extend control of the Department of Youth Services over a person beyond the age of eighteen. (19)
      10. Plea hearings and sentencing hearings. (20)
      11. Trial of paternity proceedings for children born to parents not married to one another (c. 209C), unless a party objects. (21)

    2. Closed Proceedings:

      1. Inquests. (22)
      2. Juvenile proceedings where the Commonwealth has not proceeded by indictment and where the defendant is not accused of having committed murder on or after July 27, 1996. (23)
      3. Care and protection proceedings. (24)
      4. Grand jury proceedings. (25)
    3. Access Made Discretionary by Statute:
      1. Trial of district court criminal proceedings involving husband and wife. (26)
      2. Trial for incest or rape, if either of the parties requests closure and if the defendant by a written statement waives his right to a public trial for those portions of the trial from which spectators are to be excluded. (27)
    4. No Right of Attendance:
      1. Depositions. (28)
      2. Lobby conferences and side-bar discussions at trial. (29)
      3. Hearing on application for criminal complaint presumptively closed, but if the application is one of special public significance, and if, in the opinion of the Magistrate, the legitimate interest of the public outweighs the right of privacy of the accused, the hearing may be open to the public. (30)
  4. Television/Cameras/Microphones in the Courtroom: (31)
    1. S.J.C. Rule 1:19(a) provides: "A judge shall permit broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public," subject to certain limitations, including that "[a] judge may limit or temporarily suspend such news media coverage, if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence." (32) A trial judge must make specific findings of fact to support a decision to limit such coverage. Fear of jurors being exposed to potentially prejudicial information or of witnesses being exposed to the testimony of other witnesses generally will not be a valid basis for denying such coverage. A judge should not permit broadcasting, televising, electronic recording, or photographing of motion to suppress hearings, motion to dismiss hearings, probable cause hearings, or voir dire hearings. (33)
    2. Even if the potential for harm requires that television cameras be prohibited, S.J.C. Rule 3:09, Canon 3(A)(7) clearly provides that the trial court separately should determine whether electronic recording and/or still photography would create a substantial likelihood of harm to any person or other serious harmful consequence.
  5. Sketch Artists: Sketch artists should be permitted in a courtroom, absent extraordinary circumstances in which sketching would disrupt proceedings or distract participants. (34) The trial judge, however, has discretion to restrict artists from sketching jury members. (35)
  1. Reasonable Time and Place Limits: Access to judicial records and proceedings is subject to reasonable limitations as to time and place that may need to be imposed to avoid disrupting the orderly functioning of the courtroom or the clerk-magistrates' offices, and to protect the physical security of court records.(109) Such concerns may not be used as an excuse to deny public access at reasonable times and places.(110)
  2. Rationale for Requesting Access: Persons wishing to review records or attend public proceedings ordinarily should not be required to disclose the reason for their interest.(111)
  3. Exhibits: Following a civil trial, the clerk may return exhibits to the parties after the signing of a receipt acknowledging the return of the exhibits. Whether the court can order the parties to make these records available to the media or to retain such records beyond the appeals period has not been litigated in Massachusetts.(112)
  4. Tape-recorded Proceedings: A cassette copy of the original recording of an officially tape-recorded proceeding which was open to the public is available upon request, unless the record of the proceeding has been sealed or impounded.(113)
  5. Courthouse Interviews: In Hearst-Argyle Stations, Inc. v. Justices of the Superior Court, SJ-98-0604 and SJ-98-0605 (Oct. 23, 1998) (Greaney, J.), a single justice vacated a provision of an order that restricted the media's ability to conduct interviews concerning a high-profile case. Under the provision, the media was barred between 8:00 a.m. and 5:00 p.m. from conducting interviews inside the courthouse or on the sidewalks adjacent to the courthouse.
  1. Overview: "[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." (93)
  2. Public: "[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom." (94) A prior restraint on members of the media preventing pre-trial publicity, therefore, rarely will withstand scrutiny under the First Amendment and only can be entered if the trial judge holds a hearing and makes specific findings that: (1) release of the information will create a clear and present danger to the conduct of the trial; (2) no alternative means are available to avert the harm; and (3) the prior restraint will effectively prevent the anticipated harm. In addition, the First Amendment requires that a restrictive order may not be vague or overbroad with respect to information barred from publication. (95)
          "[A]bsent the most compelling circumstances," a court cannot even issue a temporary restraining order prohibiting a newspaper from publishing certain information while it takes time to reflect on the merits of the prior restraint: "[I]t is misleading in the context of daily newspaper publishing to argue that a temporary restraining order merely preserves the status quo." (96)
  3. Attorneys: The Massachusetts Rules of Professional Conduct, adopted in 1998, prohibit attorneys from engaging in certain forms of speech before and during trial. Paragraph(a) of Rule 3.6, "Trial Publicity," says that "[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." (97) The same prohibition applies to lawyers who are associated in a firm or government agency with a lawyer subject to paragraph (a). (98)

    The United States Supreme Court has held that a disciplinary rule using a "substantial likelihood of material prejudice" standard to restrict attorney speech does not violate the First Amendment. (99)
  4. Parties: Massachusetts applies the Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), standard to regulate prior restraints on parties' speech. (100)
  5. Trial Jurors: Post-trial, unless the standard set out in Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), can be met, judges should not forbid the media from speaking with jurors nor forbid jurors from speaking with the media. (101) It remains unresolved to what extent, if at all, a judge may limit the scope of a reporter's post-trial inquiry into jury deliberations. (102) A judge may provide a neutral area where the press can interview the jury after the verdict has been rendered and may take steps to prevent harassment of jurors by the press. A judge may inform jurors that they have a right not to speak with the press, (103) and may remind jurors of the value of their service and the crucial role that trust and confidentiality among jurors plays, in the fulfillment of their duty, by promoting frank discussion during deliberations. (104) It is preferable for a judge to make any such remarks on the record in open court in order to prevent subsequent challenges.
  6. Grand Jurors and Prosecutors Presenting Cases to a Grand Jury: A judge may direct that an indictment be kept secret until after arrest. If this occurs, the clerk shall seal the indictment and no person may disclose the finding of the indictment except as is necessary for the issuance and execution of a warrant. A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of official duties or when specifically directed to do so by the court. (105) In their statutory oath, Massachusetts' grand jurors swear not to divulge the testimony given to them as grand jurors, their deliberations, or their votes, (106) although there is some relaxation of this enforced silence after an indictment has come down. (107)
  7. Grand Jury Witnesses: No Massachusetts statute prohibits grand jury witnesses from discussing their testimony, even before an indictment has issued (108)
Although the Supreme Court has not held that the First Amendment right of public access applies to civil proceedings, several federal circuit courts have recognized a First Amendment public right of access to civil trials. See, e. g., Publicker Industries, Inc. v. Cohen, 733 F. 2d 1059 (3d Cir. 1984) (First Amendment secures to the public and the press a right of access to civil proceedings); Brown & Williamson Tobacco Corp. v. F. T. C., 710 F. 2d 1165 (6th Cir.), reh'g denied, 717 F. 2d 963 (6th Cir. 1983), cert. denied, 465 U. S. 1100 (1984) (same); see also Richmond Newspapers, Inc., 448 U. S. at 580 n. 17 (1980) (question of whether public has a First Amendment right to attend civil trials was not raised in case, but noting "that historically both civil and criminal trials have been presumptively open"); Poliquin v. Garden Way, Inc., 989 F. 2d 527, 533 (1st Cir. 1993) ("[ o] pen trials protect not only the rights of individuals, but also the confidence of the public that justice is being done by its courts in all matters, civil as well as criminal"). See also NBC Subsidiary (KNBC- TV, Inc.) v. Superior Court, 86 Cal. Rptr. 2d 778, 805, 20 Cal. 4 th 1178, 980 P. 2d 337 (Cal. 1999) (holding that "in general, the First Amendment provides a right of access to ordinary civil trials and proceedings" and that "constitutional standards governing closure of trial proceedings apply in the civil setting"). But see Dep't of Children and Family Services v. Natural Parents of J.B.,736 So.2d 111 (Fla. Dist. Ct. App. 1999) (upholding, against claim of unconstitutionality under First and Sixth Amendments, Florida statute barring public from all hearings involving termination of parental rights), question certified to Florida Supreme Court, id. at 118; id. at 113 n.3 (citing In re Adoption of H.Y.T., 458 So.2d 1127 (Fla. 1984) (upholding statute requiring closure in adoption cases); Mayer v. State, 523 So.2d 1171 (Fla. Dist. Ct. App. 1988) (upholding statute requiring closure of dependency proceedings)). The First Circuit never explicitly has decided whether the First Amendment creates a right of public access to civil trials. See United States v. Three Juveniles, 61 F. 3d 86 (1st Cir. 1995), cert. denied sub nom. Globe Newspaper Co. v. United States, 517 U.S. 1166 (1996). Cf. In re Cincinnati Enquirer, 94 F. 3d 198, 199 (6th Cir. 1996) (First Amendment does not grant right of access to "summary jury trial" ordered by court in effort to persuade parties in civil suit to civil case) (" A summary jury trial proceeding is not in the nature of a court hearing or a jury trial, but is essentially a settlement proceeding. Settlement proceedings are historically closed procedures.").
      In any event, free access to civil trials is well established under the common law. Boston Herald, Inc. v. Superior Court, 421 Mass. 502, 507 n. 7 (1995). Cf. Globe Newspaper Co. v. Commonwealth, 407 Mass. 879, 884 (1990) ("[ t] he tradition in the Commonwealth is that courts are open to the public. In the absence of a statute, a rule of court, or a principle expressed in an appellate opinion authorizing or directing a courtroom to be closed, the expectation is that courtrooms will be open").
      G. L. c. 220, ยง 13, authorizes courts to exclude minors as spectators from the courtroom if it is not necessary that they be present as witnesses or parties. The constitutionality of this statute has not been tested.