Door 8. Access to Courts

Criminal and civil trials and records are generally open to the public.  That means they’re also open to the press AND to bloggers and citizen journalists.

Rights of access to trials go way back to even before colonial America.  The notion that criminal trials should be accessible to the public is a foundation of the Anglo-American court system.  In the landmark U.S. Supreme Court decision Richmond Newspapers v. Virginia, Chief Justice Warren E. Burger explained that for hundreds of years, leading legal scholars recognized “the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality . . .”

Some federal courts have said that right extends to civil trials as well.  Whether you’re a blogger, citizen journalist or traditional media reporter, you have history and important principles on your side when you assert the right to attend a court proceeding.

Among the many types of court proceedings generally open to the public are pretrial proceedings, juror selection, trials and sentencing hearings.  There are exceptions, including grand jury hearings, judges’ sidebars and in-chamber conferences, settlement conferences, and in most cases, juvenile justice, mental competency and family court hearings. 

Court proceedings can’t be closed without an important reason — particularly in the case of criminal trials.  The press and public can’t be excluded from criminal trials unless there’s a “compelling governmental interest” and the barring of the public is narrowly limited to address that interest. 

Special Situations

Celebrity and other highly publicized trials may have limited seating for the public and for journalists.  In those cases, press attendees must obtain seats, sometimes by lottery or some rotation worked out by the court.  Here’s how Oregon handles such cases.

Bloggers won an important victory in obtaining press credentials to attend the trial of Lewis “Scooter” Libby, the former chief of staff for Vice President Dick Cheney.  Here’s Robert Cox, founder of the Media Bloggers’ Association, who won press credentials that allowed a rotating force of bloggers to share two seats ordinarily reserved for traditional media reporters.

Here is extremely helpful guidance on how to handle the closure of court proceedings from the Reporters Committee for Freedom of the Press and the Citizen Media Law Project.

Bottom line: You should generally expect that you can attend court proceedings of interest to you.  If you are told that a hearing is closed, stand up and formally register an objection and seek legal help.  If it’s closed when you arrive, send a letter of objection.  Either way, if you plan to hire a lawyer, ask that the proceeding be adjourned until you’ve had a chance to contact your attorney and the attorney has had a chance to object.  Some media law organizations will take on court-access cases for no charge for the public good, or “pro bono.”  Publicize any closure on your blog or Web site. 

Click here for another silly animation sequence, this time on access to courts.

Getting Court Documents:

Just as court proceedings are generally open to the public and can be closed only for particular types of hearings or for important reasons, there’s a similar general rule that court documents be available for public inspection.  Exceptions, mirroring exceptions that allow closed courts, include records relating to juveniles, mental health cases, grand jury proceedings and documents revealing trade secrets. 

Take the quiz

The quickest way to access court documents is to find a lawyer on the case who’s willing to provide them to you.  The lawyers have all of the relevant documents on either side of the case and, if they’re willing to be helpful, can direct you to what’s most relevant or, in their view, most damning to their opponent.  (If dealing with counsel on one side of a controversy, keep in mind that you’re hearing only one party’s self-interested perspective and try to balance it by reaching out to opposing counsel.) 

You also can go to the courthouse file room or clerk’s office.  Courthouse clerks have dockets listing all legal actions and proceedings in each case and files of documents such as pleadings, motions and briefs.  These should be readily available in the courthouse for public inspection.  Also check to see what’s available online by checking your court’s Web site.

The National Center for State Courts has a listing of links to state court Web sites:
( http://www.ncsc.org/information-and-resources/browse-by-state/state-court-websites.aspx)

For federal courts, this helpful site provides many routes by which you can access court information, including by ZIP code search, by clicking on a map location, or by finding federal courts in a particular region or category.  You’ll find links to the court Web site and reams of online information including court opinions, contact information for the news media, rules, publications, reports and statistics.

If a court document is under seal, don’t violate the seal but feel free to question it and legally challenge it if you believe the document was sealed without a strong reason.  Just as there’s a general legal right of access to court proceedings, there’s a general right of access to court documents and they should not be placed off-limits unless there’s some important justification. 

Legal challenges to unreasonable court secrecy are in the interest of the public and the courts.  Seek help from media lawyers and even local press associations if you’re wrongly refused access to court records.

REPORTING TIP:  Be very careful in covering any lawsuit or court case, whether criminal or civil, because, by definition, the opposing parties are going to have contradictory views on the facts.  Seek information and opinions from both sides, whether you’re interviewing attorneys or reading documents, and don’t be overly influenced by any side.

REPORTING TIP:  The secrecy of grand juries is carefully and forcefully guarded by the courts.  Do not report on anything that would compromise the secrecy of a grand jury.  If in doubt, contact a lawyer. Here’s a helpful resource on rights and risks relating to access to grand jury information: ( http://www.rcfp.org/secretjustice/grandjuries/pg1.html)

REPORTING TIP:  Courts have rules relating to the use of recording and other electronic equipment.  Find out what they are in advance.

REPORTING TIP (from the Reporters Committee for Freedom of the Press): “You may encounter problems gaining access to documents and exhibits used in a case but then returned to the parties at the conclusion of the litigation . . . Therefore, do not delay in asking to examine evidence.”  ( http://www.rcfp.org/handbook/c07p01.html)

REPORTING TIP: In addition to court clerks, bailiffs and frequent trial spectators (known as court buffs) can sometimes offer you insiders’ perspectives on what’s happening in court.  Judges, as a rule, in the interest of maintaining an appearance of impartiality, will not talk with you about their cases.  However, they will sometimes speak to reporters about issues of interest to them that do not directly relate to their current cases.
The Citizen Media Law Project has an excellent guide to covering the courts:
( http://www.citmedialaw.org/legal-guide/access-courts-and-court-records)

Poynter’s News University offers an online course on covering the courts:
( http://www.newsu.org/courses/course_detail.aspx?id=cjj_courts06)

Criminal Justice Journalists offers this guide:
( http://www.justicejournalism.org/crimeguide/)

The U.S. court system also offers a guide for journalists:
( http://www.uscourts.gov/News/JournalistsGuide.aspx)

FROM THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS HOTLINE:
Q: One of our reporters was recently in court covering the verdict in a high-profile criminal trial. Before the proceeding began, the judge told all assembled to turn off any recording devices, but our reporter clandestinely taped the hearing anyway, thinking that state law would have allowed the taping. Can we post the audio on our Web site?

A: This becomes a very complicated question very quickly, largely because each jurisdiction’s laws regarding recording courtroom hearings vary significantly. Although the Supreme Court has held that the federal Constitution does not prohibit states from allowing cameras in their courtrooms, it has never ruled that the Constitution requires states to allow cameras in their courtrooms.

As such, each state has come up with its own rules about recording courtroom hearings. Some states allow widespread use of recording devices, while others give the judge flexibility in imposing reasonable restrictions on the use of recording equipment. In all cases, judges are given a wide degree of deference in determining how and to what extent coverage will be allowed.

However, whether the judge’s ban on recording devices violated your specific state’s rule is ultimately an argument for another day. You must raise a challenge to a court order before you disobey it. Otherwise, not only would you be considered in violation of the judge’s order, but you would also lose your opportunity to challenge that decision.

Even where recording is allowed, it will almost always have to be done following a judge’s order on how it will be allowed. So recording without the judge’s knowledge will almost always get you in trouble, if you’re caught. And posting the audio on the Web is a good way to get caught.

Next: Door 9. Access to Resources