|
|
 |
| |
| |
| 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 |
| |
I.
GENERAL PRINCIPLE OF PUBLICITY
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.
II.
JUDICIAL PROCEEDINGS
- 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)
- 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.
- Specific
Proceedings:
-
Presumptively Open:
- Arraignment.
(11)
- Bail
hearings.
(12)
- Probable
cause hearings.
(13)
- Voir
dire.
(14)
- Suppression
hearings.
(15)
- Trials,
even during the testimony
of a minor sex offense
victim.
(16)
- Post-trial
hearings.
(17)
- 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)
- Proceedings
to extend control of the
Department of Youth Services
over a person beyond the
age of eighteen.
(19)
- Plea
hearings and sentencing
hearings.
(20)
- Trial
of paternity proceedings
for children born to parents
not married to one another
(c. 209C), unless a party
objects.
(21)
- Closed
Proceedings:
- Inquests.
(22)
- 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)
- Care
and protection proceedings.
(24)
- Grand
jury proceedings.
(25)
- Access
Made Discretionary by Statute:
- Trial
of district court criminal
proceedings involving
husband and wife.
(26)
- 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)
- No
Right of Attendance:
- Depositions.
(28)
- Lobby
conferences and side-bar
discussions at trial.
(29)
- 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)
-
Television/Cameras/Microphones
in the Courtroom:
(31)
- 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)
- 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.
- 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)
|
| |
| |
Supreme
Judicial Court
Guidelines
on the Public's Right of Access to Judicial
Proceedings and Records
Section 5 |
| |
| IV. MISCELLANEOUS
ISSUES |
| |
-
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)
-
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)
-
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)
-
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)
-
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.
|
| |
Supreme
Judicial Court
Guidelines on the Public's Right of
Access to Judicial Proceedings and Records
Section 4 |
| |
| |
IV.
RESTRAINTS ON SPEECH AND PUBLICATION
-
Overview: "[P]rior
restraints on speech and publication
are the most serious and the least
tolerable infringement on First
Amendment rights."
(93)
-
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)
-
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)
-
Parties: Massachusetts
applies the
Nebraska Press Ass'n v.
Stuart, 427 U.S. 539 (1976),
standard to regulate prior restraints
on parties' speech.
(100)
-
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.
-
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)
-
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.
|
| |
| |
| |
|
|
|
|
