Court Access

The First Amendment brings with it the right to access to certain court proceedings and court records. Please check out our guide below to learn more about your First Amendment Rights to Court Access.

(The following guide is intended to be a quick reference and provide general information to journalists and citizens. It addresses some common court access problems, but does not substitute for research or consultation with a lawyer on detailed questions.)

Pocket Guide To Access to Courts and Court Records (PDF file)

 

A GUIDE TO ACCESS TO COURTS AND COURT RECORDS IN CALIFORNIA


ACCESS TO COURT PROCEEDINGS

THE BASICS

The First Amendment right of free speech carries with it the right to listen. Therefore, court proceedings are presumed open, unless specifically closed by law or a party proves that an overriding interest in justice requires closure. (Richmond Newspapers, Inc. v. Virginia, 44 U.S. 555 (1980); Globe Newspapers v. Superior Court, 457 U.S. 596 (1982); NBC Subsidiary Inc. v. Superior Court, 20 Cal. 4th 1178 (1999)).

WHAT'S OPEN

Criminal: All stages, from arraignment and bail hearings to change-of-plea hearings, pre-trial motions, jury selection, trial, and sentencing are presumed open. A proceeding may be closed if the court finds, on the public record, that the defendant’s constitutional right to a fair trial is threatened. The defendant must prove that closure is required because “substantial probability” exists that a fair trial will be impaired, that any closure or gag order will be effective, and that there is no alternative. (Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); Press-Enterprise v. Superior Court, 464 US 501 (1984); Press-Enterprise v. Superior Court, 478 US 1 (1986)).

Civil: : All court proceedings, including court hearings on discovery and pre-trial motions are presumed open. To close a proceeding, the court must find that (1) limiting public access serves an overriding interest; (2) there is a substantial probability that interest will be prejudiced without closure; (3) the closure order is narrowly con-structed to serve that interest; and (4) there is no less restrictive way to protect that interest. The order to close a proceeding must state the factual and legal bases on the record. (NBC Subsidiary, Inc. v. Superior Court, 20 Cal. 4th 1178 (1999) CRC 243.1) The court must give public notice that it intends to hold a hearing before closing a courtroom.

Note: In both criminal and civil matters, judges have wide discretion to impose gag orders on court personnel and trial participants such as parties and their lawyers.

General

  • side bar or in-chambers conferences, although transcripts of proceedings are usually available.
  • settlement conferences including mediation and arbitration hearings.

Criminal

  • juvenile proceedings, unless the minor (a) is charged with specified violent crimes or (b) asks the court to open the hearing. The court is also closed if the crime is a sex offense and the victim requests a closed hearing, or during victim's testimony if the victim is under age 16. (Welfare & Inst. Code §676)

Civil

  • many family law proceedings, e.g., adoption, visitation, custody, annulment, child support.
  • mental competency hearings for involun-tary commitment, unless a party asks that the hearing be open. (Civ. Code §5118)
  • out of court discovery such as depositions, interrogatories and document productions. (Seattle Times v. Rhinehart, 467 U.S. 20 (1984))

ACCESS TO COURT RECORDS

THE BASICS

Access to court records is as important as the right to attend the proceeding itself. Court records may be sealed only by statute or by a court order setting forth findings that (1) there exists an overriding in-terest supporting sealing; (2) there is a substantial probability the interest will be prejudiced absent sealing; (3) the proposed sealing order is narrowly tailored; and (4) there is no less restrictive means of achieving the overriding interest. (CRC 243.1, 243.2, NBC Subsidiary, Inc. v. Superior Court, 20 Cal.4th 1178 (1999); Copley Press v. Superior Court, 63 Cal.App.4th 367 (1998)). The order must specify the documents and pages, or portions of pages, that are to be sealed. Sealed records may be reviewed only upon an order of the court.

• Material not introduced in, or filed with the court is not public. Court records are not covered by the California Public Records Act. Thus, the Act’s provisions on access, time, and cost do not apply.

WHAT'S OPEN
Anyone is entitled to see any evidence introduced in open court and any unsealed court record (including transcripts) in the court file. No fee is required to view records, but there may be a fee for copies.

• Criminal: Executed search and arrest warrants after the 10th day after issuance (Penal Code §1534); grand jury testimony that resulted in an indictment after 10 days following delivery of the transcript to the defendant; (Penal Code §938.1) probation officer reports for the 60 days following sentencing or grant of probation (Pe-nal Code §1203.05); old probation reports when the subject is charged with a new crime; written victim statements (Penal Code §1191.15) after sentence is entered.

• Civil: Settlement agreements that are filed in court. A party seeking to keep an agreement secret must show that the need for secrecy outweighs the presumption of public access (Matter of Hearst, 67 Cal.App.3d 777 (1997)). If a party to the settlement is a public agency, the settlement is public under the Public Records Act (Govt. Code §6254(b)); Freedom Newspa-pers v. County of Orange, 158 Cal.App.3d 893 (1984)).

Note: A defendant's right to a fair trial is not the only reason to seal a record.

WHAT'S CLOSED

Criminal: Records of grand juries that do not enter an indictment (Penal Code §924.6); juvenile court records (Welf. & Inst. Code §827), ex-cept some records when minors escape deten-tion facilities (Welf. & Inst. Code §828), and after a §602 petition has been sustained for a Welf. & Inst. Code §676(a) offense; pre-sentencing mental evaluation records (Penal Code §1203.03) [the contents may be in Probation Officer Reports]; indigent applications (Penal Code §987.9); any record for which the court finds disclosure would jeopardize a defendant’s right to a fair trial.

Civil examples: Adoption records (Fam. Code 9200); trade secret information (Civ. Code 3426.5); civil attachment records for 30 days upon request of the plaintiff (Civ. Proc. Code 482.050); discovery records such as deposition transcripts, interrogatory answers and other documents obtained in discovery, until filed in court records or introduced in evidence. But a party may be willing to share them.

What To Do About Closed Records...

 

(last updated 12/16/03)