CHAPTER 22

PRESS ACCESS TO PROCEEDINGS AND DOCUMENTS

§ 22.01 Restricting Press Access to Proceedings and Documents

§ 22.02 - Closure of Proceedings

§ 22.03 - Access to Documents

§ 22.04 - Gag Orders

§ 22.05 - Procedure

§ 22.06 Cameras in the Courtroom

§ 22.01

Restricting Press Access to Proceedings and Documents

Attempts in high publicity cases to limit media access to proceedings and documents have met with little success in Vermont, the Vermont Supreme Court generally striking the free press/fair trial balance in the media's favor. Media access is not grounded on the sixth amendment right to a public trial, which is held to be personal to the defendant,{1} but on a qualified first amendment right, against which the defendant's sixth and fourteenth amendment rights to fair proceedings must be weighed.{2} While the Vermont Supreme Court acknowledges the potential for jury prejudice from pretrial publicity (Vermont being a small rural state where a major crime story can dominate media and public interest),{3} it has never upheld an order in a criminal case which barred the media from pretrial hearings, prevented press access to documents, or forbade public comment by lawyers and others in the court process.

§ 22.02

- Closure of Proceedings

In those proceedings to which the first amendment grants a right of access, closure can be ordered only by the rigorous standard of Press-Enterprise Co. v. Superior Court of California,{4} (Press-Enterprise II), that is,

only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.{5}

This standard will apply to a particular type of hearing if (1) it has been "historically open to the press and the public," and (2) public access will play "a significant positive role. . . ."{6} The Vermont Supreme Court has found the Press-Enterprise II test applicable to pretrial hearings on suppression motions{7} and will probably reach the same result for all other stages of the criminal process.{8}

That media access will lead to publication of information which may later be suppressed, that coverage has been intense and widespread, and that the events occurred in a small community, all suggest a substantial probability of prejudice and favor closure or other protective measures.{9} Countervailing factors include considerations of timing (e.g., that trial may not occur for many months after the news surfaces) and a track record of responsible noninflammatory reporting.{10}

The absence of reasonable alternatives to closure must be established by evidence and findings.{11} A trial judge's general skepticism about the effectiveness of voir dire (e.g., that a juror may consciously or unconsciously misrepresent his or her exposure to publicity){12} or a change of venue (because the press coverage will be statewide) is not good enough.{13} Other alternatives to closure include continuances, severance orders, jury sequestration, and "admonition of the jury."{14}

If the facts do warrant a closure order it must not be more restrictive of first amendment rights than necessary.{15} Hearings can be partly closed - open to the public except for those parts that involve potentially excludable evidence or other prejudicial matter,{16} or closed only to some members of the public and not others.{17}

These rules apply only to criminal cases: the first amendment right of access and the presumption of openness have no application to juvenile proceedings, and the absolute statutory confidentiality of juvenile proceedings does not violate the constitution, even in cases attracting substantial legitimate media interest.{18} But the confidentiality provisions do not shield preliminary stages of adult court proceedings involving a juvenile, even when a motion is pending to transfer the case to juvenile court.{19}

§ 22.03

- Access to Documents

The Press-Enterprise II standard also governs access to filed documents which have "historically been open" to the public and whose public disclosure will play a significant positive role.{20}

The press and public have a qualified right of access to such documents, guaranteed by the first amendment{21} and also by the common law and statutes.{22} Police affidavits filed with an information are public documents once the judge receives and reviews them for probable cause, after which "parties interested" in the proceeding - a term which includes the press and public - have a constitutional and common law right to inspect them.{23} A psychosexual evaluation, submitted on the defendant's behalf at sentencing, is also presumptively open to the press and public, even if the parties intended it to be confidential,{24} although the privacy rights of third parties may require redaction on proper findings.{24.5}

Any order sealing filed documents must be narrowly tailored in scope and duration. The document should be redacted if possible rather than sealed entirely, and a court rejecting that option must justify its decision with findings. The order should not extend "beyond the time necessary to protect defendant's fair trial rights[,]" and permanent sealing may never be justifiable.{25}

There is no right of access to documents that have not been filed in court, and even documents that have been physically filed can be briefly kept from the press until the question of access is decided.{26}

The right may also not apply to discovery materials, even those that have been filed.{27

§ 22.04

- Gag Orders

Courts have a freer hand to regulate the speech of lawyers, police, and others associated with the judicial system than to impose prior restraints on the media, but some of the same considerations apply. Ethical and professional obligations limit extrajudicial statements of lawyers and people who work for them.{28} In view of these obligations, a broad gag order is not justified "without a finding that, absent the order, one or more of the persons covered would make an improper disclosure."{29} When the order is issued it must be "narrowly tailored to cover only the improper disclosure that would occur in the absence of the order[,]" and an order generally prohibiting statements about the evidence in the case and other matters not of record is too broad.{30}

§ 22.05

- Procedure

Defense counsel, hoping to avoid sensational media coverage of the early stages of a case (e.g., publication of the police affidavits of probable cause or the prosecutor's allegations at the Rule 5 hearing), will have to be quick on the draw. The motion may have to be made orally and argued at a bench conference or in camera before further proceedings are held. Subsequent motions arguing a potential for prejudicial publicity should include newsclippings and circulation data, tapes or transcripts of radio and t.v. coverage, and other data establishing the type and extent of coverage and its impact on potential jurors.

The press has a right to intervene directly in a criminal case for purposes of contesting restrictions.{31} The Vermont Supreme Court has accepted pretrial challenges to sealing and closure orders as "collateral final order" appeals,{32} and as petitions for extraordinary relief.{33} It has warned, however, that a petition for extraordinary relief "may provide a more certain forum than a direct appeal" and that such petitions "should ordinarily be addressed to the superior courts in the first instance."{34}

§ 22.06

Cameras in the Courtroom

Since 1988 V.R.Cr.P. 53 has granted news reporters and other members of the public broad rights "to record proceedings of the court, in the courtroom and areas immediately adjacent thereto which are generally open to the public" except when the judge orders otherwise. "Recording" is generously defined as "the recording of sounds or images by microphone, tape recorder, camera or other audio or visual recording equipment for live transmission or for later transmission, broadcasting or other use. . . ."{35} The "proceedings" to which this permission applies include "any event which occurs in open court" with the exception of private conferences (between members of the court, co-counsel, or counsel and client), matters occurring during recesses, bench conferences, proceedings in chambers (unless the judge allows it), or any proceeding "which is by law closed to the public" or which the judge has specifically ordered closed.{36} The recording (or closeup photography) of jurors or prospective jurors is also ruled out.{37}

The rule specifies the mechanics and logistics in considerable detail, covering such matters as the type of equipment and the number of personnel.{38}

A motion to prohibit or restrict recording may be made by parties, witnesses, or the judge sua sponte, and a hearing must be held promptly (the press must be given notice and has a right to be heard). The rule sets forth the factors for the judge to consider, including "the impact of recording upon rights of the parties to a fair trial;" the probable effect of recording on the behavior of witnesses; "whether the private nature of the testimony outweighs its public value;" the age and mental and medical condition of the witness; the risk of emotional or physical damage to witnesses and victims; and the feasibility of alternatives "short of prohibition. . . ."{39} The burden is on the proponent of the restriction, by a preponderance of the evidence, and an order is not immediately appealable as of right.{40}

1. Herald Association v. Ellison, 138 Vt. 529, 531 (1980) (citing Gannett Co. v. DePasquale, 443 U.S. 368, 379-87 (1979)).

2. State v. Schaefer, 157 Vt. 339, 346 (1991); State v. Tallman, 148 Vt. 465, 470-71 (1987).

3. State v. Schaefer, 157 Vt. 339, 357 (1991) (Allen, C.J., concurring).

4. 478 U.S. 1 (1986).

5. State v. Schaefer, 157 Vt. 339, 346 (1991) (quoting State v. Tallman, 148 Vt. 465, 474 (1987), quoting Press-Enterprise II, 478 U.S. 1, 14 (1986)). Concurring opinions in both Tallman and Schaefer argued that the standard should be a "reasonable likelihood" rather than a "substantial probability" of prejudice. Schaefer, 157 Vt. at 355-56 (Allen, C.J., concurring); Tallman, 148 Vt. at 477-78 (Allen C.J., concurring).

6. Press-Enterprise II, 478 U.S. 1, 8 (1986); Greenwood v. Wolchik, 149 Vt. 441, 443 (1988).

7. Schaefer and Tallman both involved suppression hearings.

8. In In re K.F., 151 Vt. 211 (1989), the court held that arraignment and a transfer hearing in a case involving a juvenile defendant were entitled to a presumption of openness, although it did not specifically prescribe a standard for closure.

9. State v. Schaefer, 157 Vt. 339, 349 (1991).

10. State v. Schaefer, 157 Vt. 339, 349-50 (1991).

11. State v. Schaefer, 157 Vt. 339, 350-51 (1991); State v. Tallman, 148 Vt. 465, 475 (1987).

12. State v. Schaefer, 157 Vt. 339, 351-52 (1991). The court left open the possibility that the judge in a high publicity case may grant special voir dire rights, such as giving the defendant extra peremptory challenges. It also implied the right to make a searching inquiry into what publicity the venire members were exposed to. Id. at 352 and n.4. Compare id. at 358 (Allen, C.J., concurring) (citing Mu'Min v. Virginia, 111 S. Ct. 1899 (1991) (no sixth amendment right to ask what juror has read or heard about case)).

13. Change of venue should be resorted to sparingly, however, because it erodes the defendant's right to trial in the local community. Herald Association v. Ellison, 138 Vt. 529, 534 (1980).

14. Herald Association v. Ellison, 138 Vt. 529, 534 (1980) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 441 (1979) (opinion of Blackmun, J.)).

15. State v. Schaefer, 157 Vt. 339, 351 (1991).

16. This was the trial court's arrangement in State v. Tallman, 148 Vt. 465, 467 (1987).

17. See § 25.08, infra.

18. In re J.S., 140 Vt. 458 (1981).

19. In re K.F., 151 Vt. 211 (1989).

20. See Greenwood v. Wolchik, 149 Vt. 441, 443 (1988) (quoting Press-Enterprise II, 478 U.S. 1, 8 (1986)).

21. State v. Schaefer, 157 Vt. 339, 347-48 (1991).

22. State v. Tallman, 148 Vt. 465, 472-73 (1987).

23. State v. Tallman, 148 Vt. 465, 472-73 (1987) (interpreting 4 V.S.A. § 693). See Greenwood v. Wolchik, 149 Vt. 441 (1988) (rejecting an analogy between probable cause affidavits and grand jury proceedings, which are traditionally secret).

24. State v. Densmore, No. 91-434 (Vt. March 12, 1993). The court did not decide whether the same qualified right of access applies to presentence investigation reports and associated documents. Id., slip op. 5-6. Presentence reports in Vermont are confidential by statute. 28 V.S.A. § 204(d). Courts in other jurisdictions have rejected claims of access by third parties. See Department of Justice v. Julian, 486 U.S. 1, 12 (1988); United States v. Corbitt, 879 F.2d 224 (7th Cir. 1989) (no first amendment right of access to federal PSIs).

24.5. State v. Densmore, No. 91-434, slip op. 11-12 (Vt. March 12, 1993).

25. State v. Schaefer, 157 Vt. 339, 351 (1991); Herald Association v. Ellison, 138 Vt. 529, 535 (1980).

26. State v. Tallman, 148 Vt. 465, 473 (1987) (judge can "temporarily seal" affidavits pending hearing). Cf. Herald Association v. Judicial Conduct Board, 149 Vt. 233 (1988) (discovery materials mailed to judicial conduct board office were not "filed" for purposes of press access).

27. Herald Association v. Judicial Conduct Board, 149 Vt. 233, 239-40 (1988).

28. See generally Code of Professional Responsibility, D.R. 7-107. The rule imposes tighter restrictions on prosecutors than on defense counsel. In re Axelrod, 150 Vt. 136 (1988). See also Gentile v. State Bar of Nevada, 111 S. Ct. 2720 (1991) (discussing first amendment and due process protections for criminal defense lawyer's speech about pending cases).

29. State v. Schaefer, 157 Vt. 339, 353 (1991).

30. State v. Schaefer, 157 Vt. 339, 353-54 (1991).

31. State v. Schaefer, 157 Vt. 339, 344 (1991); State v. Tallman, 148 Vt. 465, 468 (1987).

32. State v. Schaefer, 157 Vt. 339, 344 (1991) (appeal by media intervenors); In re K.F., 151 Vt. 211, 212 (1989) (appeal by defendant).

33. State v. Tallman, 148 Vt. 465, 468 (1987); Herald Association v. Ellison, 138 Vt. 529, 324-25 (1980).

34. In re K.F., 151 Vt. 211, 214 n.3 (1989).

35. V.R.Cr.P. 53(a).

36. V.R.Cr.P. 53(a),(b)(2),(c).

37. V.R.Cr.P. 53(d).

38. V.R.Cr.P. 53(e)(1)-(6).

39. V.R.Cr.P. 53(b)(1)(i)-(ix).

40. V.R.Cr.P. 53(b)(1),(g). Rule 53(g) provides that "[t]here shall be no right of interlocutory appeal. . . ." The language denies an appeal as of right but arguably allows appeals by permission, under V.R.A.P. 5(b). The Reporter's Notes construe it more broadly to mean that the trial judge's Rule 53 decisions "are not subject to interlocutory appeal."