Court Access

3. When can a courtroom be closed to the public?

In a series of cases decided during the 1980s, the U.S. Supreme Court concluded that the First Amendment gives the public and the press a presumptive right to attend criminal trials.^[5]   To protect this presumptive right, the Court ruled that trials (including preliminary hearings, jury selection, opening statements, witness examination and closing arguments) may not be closed unless and until the trial judge enters an order containing specific written findings.  Those findings must demonstrate:        

1) that closure is absolutely necessary to protect a “compelling” governmental interest;

2) that no less restrictive measure short of closing the courtroom will suffice to protect that interest; and

3) that the closure is “narrowly tailored” so that its scope and duration are as limited as possible.^[6]  

Although the U.S. Supreme Court has yet to address whether the public has a First Amendment right to attend civil court trials, the Court has noted that civil trials have historically been open to the public.^[7]   Several lower federal courts, including the U.S. Court of Appeals for the Fourth Circuit (the federal circuit that includes North Carolina), have held that certain civil trials are presumptively open under the First Amendment.^[8]  Accordingly, most court-closure cases have not distinguished between criminal and civil cases.

The First Amendment right of access applies to all federal and state court proceedings in North Carolina.  In addition to the federal constitutional right of access, a state constitutional right flowing from Article I, Section 18, of the N.C. Constitution also applies to proceedings in state courts.  Article I, Section 18, of the N.C. Constitution states, “All courts shall be open.”^[9]   The N.C. Supreme Court has held that this language guarantees the public a qualified constitutional right to attend civil court proceedings.^[10]

In 2001, the N.C. General Assembly passed legislation that codified the public’s right of access to civil proceedings in state courts.^[11]  Pursuant to that statute, any member of the public seeking access to a civil court proceeding or a judicial record in that proceeding may file a motion with the court to determine his or her right of access.^[12]  By law, the court must schedule a hearing on the motion before any other proceedings can move forward in the case relating to the matter for which access is sought.  In considering a motion under the statute, the court must take account of “such facts, legal authority, and argument as the movant and any other party to the action desire to present,” and the court’s ruling “shall contain a statement of reasons for the ruling sufficiently specific to permit appellate review.”^[13]  Any party or the movant may immediately appeal any ruling made pursuant to the statute.^[14] 

Thus, in state court cases, reporters possess two constitutional bases for arguing against closure—a presumptive right under the First Amendment and the state constitution—as well as a statutory basis.  In sum, civil court proceedings in North Carolina may be closed only if the trial judge makes specific findings of fact demonstrating that, after considering alternatives to closure, closure is necessary to protect a “compelling countervailing public interest.”^[15]  Unless such an overriding interest exists, civil court proceedings must be open to the public.  

Both federal and state courts in North Carolina have recognized that the general rule mandates open court proceedings.  For example, in the 1994 trial of Larry Demery for the murder of James Jordan, the father of basketball star Michael Jordan, Superior Court Judge Gregory Weeks denied the defendant’s motion to close the court.  Judge Weeks found that the “unambiguous provisions of the state constitution establish an absolute right on the part of the press and public to attend this criminal trial; accordingly, the closure motion must be denied.”^[16]  Similarly, in 1995 Laura Hart McKinney, a Winston-Salem screenwriter, moved to close the courtroom during her testimony in a hearing related to the criminal prosecution of O.J. Simpson.  Despite the commercial value of the information that necessarily would be disclosed, most notably her tape-recorded interviews with Los Angeles police officer Mark Fuhrman, Superior Court Judge William Wood recognized the N.C. constitutional provision relating to open courtrooms and denied the motion to close the courtroom.^[17]  In 2001, a Wake County Superior Court judge denied a motion to close a courtroom during a hearing in a civil case.  The case, Corrigan v. White,^[18]  involved a lawsuit filed by several young women who alleged that they had been the victims of sexual misconduct at a Raleigh shopping mall.  The judge said he found no “compelling, countervailing interests sufficient to justify closure of the courtroom.”^[19]

In 2003, the trial court in Goldsmith v. Henderson County Board of Public Education applied the 2001 access statute, granting a newspaper’s motion to unseal certain documents and denying the plaintiff’s motion to close the courtroom while the parties sought the court’s approval of a settlement agreement.^[20]  The case involved sex abuse allegations relating to minor students.

In 2011, the N.C. Court of Appeals affirmed a lower court ruling that had declined to close proceedings in a family law dispute.^[21]  In that case, France v. France, the parties had sought to close proceedings on the basis of a confidentiality provision in a separation agreement.  The court concluded that the parties did not meet their burden of overcoming the constitutional presumption of openness and that the contract provision alone was not enough to meet this requirement.^[22]  Nor was it sufficient, the court held, for the parties to argue that closure was justified because matters related to their minor child were at issue where there were other, more narrow means to protect the privacy interests of the minor short of closing the entire proceeding.^[23] 

The following are the major exceptions to the general rule mandating open court proceedings:

Commitment hearings.  The N.C. Court of Appeals has held that there is no right of access to involuntary civil commitment proceedings.^[24]   However, commitment hearings for people found not guilty by reason of insanity in criminal cases are public and must be held in the court where the original trial took place.^[25] 

Conferences.  Bench conferences between the judges and lawyers, conferences between lawyers and their clients, and the like are, for practical reasons, generally not intended for the public.  However, whatever one does hear in the courtroom can be reported.

Grand jury proceedings.  Grand jury proceedings are conducted in private pursuant to federal and state law.^[26]   This is appropriate because the purpose of a grand jury is to determine whether there is sufficient evidence to charge an individual with having committed a crime and to begin a criminal case.  Note that while it is a crime for a grand juror, prosecutor or other official to release information that is presented before the grand jury, it is not a crime for the news media to publish such information.  

Juvenile proceedings.  Historically, juvenile proceedings generally have been closed to the public and the news media as a matter of public policy.^[27]   The theory of this policy is that the undisciplined child should be treated, insofar as possible, in a fashion that promotes his or her ability to reform and become a useful, law-abiding citizen.  However, reforms in North Carolina’s juvenile code have made juvenile proceedings in North Carolina courts presumptively open to the public. The court must find “good cause” to close a proceeding.^[28]  No proceeding can be closed if the juvenile requests that it be open.^[29] 

When truly heinous crimes of violence are committed by juveniles, the news media may well have an obligation to the community to report not only the nature of the crime but also the name of the juvenile accused of committing it.  Such an action would obviously be contrary to the general goal of allowing juveniles to reform their conduct in relative anonymity so they can mature and develop unshackled by youthful mistakes and indiscretions.  The law is clear, however:  Under the First Amendment, if a reporter lawfully obtains the name of a juvenile charged with commission of a crime, the reporter may publish such information without sanction by the state.^[30] 

In Smith v. Daily Mail Publishing Co.,^[31]  the U.S. Supreme Court held unconstitutional a West Virginia law making it a crime to publish the name of a youth charged as a juvenile offender without obtaining the written approval of the juvenile court.  The case involved a 14-year-old charged with murder.  Two newspapers that had learned the juvenile’s identity through the use of routine reporting techniques—the monitoring of the police band radio frequency and interviews with police, witnesses and an assistant prosecutor at the scene of the killing—were indicted by a grand jury for publishing the juvenile’s name.  The Supreme Court held that the indictment could not stand because the asserted state interest in protecting the anonymity of juvenile offenders to further their rehabilitation was insufficient to outweigh the constitutional prohibition against prior restraints on speech.^[32]

Sex crime cases.  State law provides that in cases involving charges of rape, attempted rape, sex offense or attempted sex offense, the trial court may, during the testimony of the victim, “exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.”^[33]  Again, however, the media are free to publish what they lawfully learn.

In State v. Burney,^[34]  the N.C. Supreme Court affirmed a closure order over the objection of a criminal defendant who claimed that such an order deprived him of his constitutional right to a “public trial.”  In that case, the trial court cleared the courtroom during the testimony of a 7-year-old victim.  Significantly, no member of the public or news media objected to being excluded or attempted to intervene for the purpose of arguing against the decision to close the courtroom.  The N.C. Supreme Court said in its opinion, “Defendant cannot demand a new trial upon the assertion of an alleged violation of the constitutional rights of [the news media] under these particular facts.”^[35]

In State v. Kelly, the notorious child sex abuse case known as “the Little Rascals case,”^[36]  a state Superior Court judge ruled that the state could not close the courtroom during the testimony of approximately 20 alleged victims.  Superior Court Judge Marsh D. McLelland denied a prosecutor’s motion to close the courtroom to “all unnecessary persons” during the testimony of the victims.  The state argued that testifying in open court would traumatize the children.  However, the judge ruled that the state constitution provides an absolute right of access to criminal trials and that the state “made no offer of proof in support of the ‘overriding interest’ asserted in this case.”^[37] 

Potential for violence.  State law provides that a judge may limit access to the courtroom when necessary to ensure the safety of all present and to ensure an orderly trial, provided that the order limiting access must be entered on the record.^[38]  This law was adopted in 1977 as a result of several acts of violence that occurred in courtrooms in the early 1970s.  It is rarely used, and, if it were invoked, it probably would not call for exclusion of all persons.  In light of U.S. Supreme Court decisions, the closure order would have to be narrowly drawn.

Proceedings involving medical peer review records.  In Virmani v. Presbyterian Health Services Corp.^[39] the N.C. Supreme Court held that the public does not have a right to access court hearings that concern confidential information relating to medical peer review records.^[40]  The court reasoned that the presumptive right of access was outweighed by the “compelling public interest in protecting the confidentiality of the medical peer review process in order to foster effective, frank and uninhibited exchange among medical peer review committee members.”^[41] 

Trade secrets.  A court generally can order the courtroom closed while trade secrets are discussed.^[42]  Closure may be justified when there is no reasonable alternative to closure and substantial damage to property rights in trade secrets would occur without closure.^[43]

Victim’s compensation.  Hearings to determine whether a crime victim can be compensated for his or her injuries take place before administrative law judges.  The state statute governing such hearings provides that the administrative law judge may exclude from a hearing all persons not directly involved in the hearing during the taking of medical and law enforcement information as evidence.^[44]

^References