South Carolina
Author
Taylor M. Smith IV
Harrison, Radeker & Smith, P.A.
P.O. Box 50143
Columbia, SC 29250
(803) 779-2211
www.harrisonfirm.com
Michelle Mensore Condon
Charleston School of Law
P.O. Box 535
Charleston, SC 29407
www.charlestonlaw.edu
Special thanks to the previous guide author, Jay Bender of Baker, Ravenel & Bender, L.L.P., and Charleston School of Law student Paul Danna, who also assisted with this guide.
Last updated March 2020
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
The South Carolina Constitution in article 1, section 9 provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.” The United States Supreme Court has interpreted the guarantees of freedom of speech and of the press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). The right of access to the courts applies to the press as well as the public as the U.S. Supreme Court described in Cox Broadcasting v. Cohn, 420 U.S. 469 (1975).
Because courts (including South Carolina’s) view the access rights of the public and press as constitutionally guaranteed, the First Amendment analysis applies a strong presumption favoring open criminal proceedings. In re Charlotte Observer, 882 F.2d 850, 852 (4th Cir. 1989); In re Knight Publ’g Co., 743 F.2d 231, 234 (4th Cir. 1984).
CompareB. Overcoming a presumption of openness
The presumption in favor of open courts only may be overcome by an overriding interest based on specific findings that closure is necessary to preserve "higher values," and the closure must be narrowly tailored to serve that interest. Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86, 89, 369 S.C. 69, 74 (S.C. 2006) (citing In re Charlotte Observer, 882 F.2d 850, 852-53 (4th Cir. 1989)); Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 13-14 (1986) (Press Enterprise II)); In re Knight Publ’g Co., 743 F.2d 231, 234 (4th Cir. 1984) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“Press Enterprise I”)). One higher value may be a criminal defendant’s Sixth Amendment right to a fair trial by an impartial jury, but the trial judge must carefully weigh the competing interests.
CompareC. Procedural prerequisites to closure
When the justification for closure is protecting the defendant's Sixth Amendment right to trial by an impartial jury, a judge only may close a courtroom by making specific findings that: (1) there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by an open proceeding and the resulting publicity, (2) there is a substantial probability that closure would prevent that prejudice, and (3) reasonable alternatives to closure could not adequately protect the defendant’s rights. See Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86, 89, 369 S.C. 69, 74 (S.C. 2006); In re S.C. Press Ass'n, 946 F.2d 1037, 1041 (4th Cir. 1991); In re Charlotte Observer, 882 F.2d 850, 853 (4th Cir. 1989); In re Washington Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986).
CompareII. Procedure for asserting right of access to proceedings and records
The First Amendment to the United States Constitution and article 1, section 2 of the South Carolina Constitution protect an individual’s right to access proceedings. The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq. protects the right to access filed court records.
CompareA. Media standing to challenge closure
Working members of the press can rely on the free press clauses of both the state and federal constitutions for the right to access a proceeding. See U.S. Const. amend. I; S.C. Const. art. I, § 2. Article 1, section 9 of the South Carolina Constitution provides “[a]ll courts shall be public . . . .”
The United States Supreme Court also has noted that the public and press have a right to challenge the closure of court records and proceedings, holding that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.’” Globe Newspaper Co. v. Superior Court, 457 U.S. 609 n. 25 (1982) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)).
CompareB. Procedure for requesting access in criminal cases
Courts have held that members of the media can intervene in both civil and criminal cases under Rule 24 of the South Carolina Rules of Civil Procedure to challenge a protective order restricting access. See, e.g., Davis v. Jennings, 304 S.C. 502, 503–04, 405 S.E.2d 601, 602 (1991).
If courtroom closure is being requested by a party or the trial judge to a court proceeding and the reporter is present in the courtroom, the reporter should stand and politely address the trial judge. The reporter should identify his or herself by name as well as the outlet that person represents and then respectfully assert that the federal and state constitutions provide a strong presumption in favor of open court proceedings. Then the reporter should respectfully ask the court for a continuance, so a hearing may be held on closure and the reporter may contact an attorney to appear on behalf of the journalist (or his or her outlet) and the public at large.
If the reporter is not present in the courtroom but learns of a potential courtroom closure, the reporter should immediately contact an attorney to assist with stopping the closure. If an attorney cannot be reached, the reporter should contact the clerk of court regarding the potential closure and ask the clerk for the name and contact information (including email) of the chief administrative judge for the court where closure is anticipated. The reporter should then attempt to contact the judge and respectfully state that the federal and state constitutions provide a strong presumption in favor of open court proceedings and that a continuance is requested so a hearing can be had regarding closure and time may be afforded for the reporter to contact an attorney.
CompareC. Procedure for requesting access in civil matters
The procedure for requesting access in civil matters is the same as in criminal matters as described above.
CompareD. Obtaining review of initial court decisions
The South Carolina Court of Appeals was created to hear most types of appeals directly from circuit court and family court. The South Carolina Supreme Court may then decide if it will hear an appeal from the South Carolina Court of Appeals.
Although rarely used, the South Carolina Supreme Court will consider issues regarding unlawful courtroom closure on an emergency basis under the court’s original jurisdiction. See Rule 245, SCACR. The court may issue injunctions or writs of mandamus to reopen courtroom proceedings.
Often appeals regarding courtroom closure are not considered until after the closed courtroom doors are shut and the hearing occurs. State courts can still address closure, though, “despite its mootness because, as courts have generally held in these cases, closing the courtroom is a wrong "capable of repetition yet evading review." Ex Parte Hearst-Argyle Television, Inc., 631 S.E.2d 86 (S.C. 2006); see also In re S.C. Press Ass'n, 946 F.2d 1037, 1039 (4th Cir.1991); Ex parte Columbia Newspapers, Inc., 286 S.C. 116 (1985) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979) and Steinle v. Lollis, 279 S.C. 375 (1983)).
CompareIII. Access to criminal proceedings
CompareA. In general
The constitutional right for the press and public to attend a criminal trial, when read in light of South Carolina’s open courts provision, provides a clear basis for finding an independent right of the public and press to attend criminal proceedings. However there can be limits on access when balanced against a defendant’s right to a fair trial. Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86 (S.C. 2006).
Although this rule applies to electronic and photographic coverage, some judges apply it to print journalists as well.
CompareB. Pretrial proceedings
In Ex parte First Charleston Corp., 495 S.E.2d 423, 425 (S.C. 1998), the South Carolina Supreme Court held that the trial court had erred in closing a bond hearing because the record did not support “a finding of substantial probability of prejudice from publicity since extensive details had already been disclosed in the press regarding the defendant and the crime with which he was charged.”
In Ex parte Hearst-Argyle Television, Inc., 631 S.E.2d 86 (S.C. 2006), the South Carolina Supreme Court reversed the trial court’s closure of the courtroom during a pretrial suppression hearing in a capital murder case. The court held that concerns over pretrial publicity did not justify infringement upon First Amendment and state access rights because closure of the hearing would not prevent additional publicity at trial.
CompareC. Criminal trials
Although access to criminal trials and hearings are not procedurally different from civil cases in South Carolina, occasionally defendants, prosecutors, and judges may seek courtroom closure as a way to prevent pretrial publicity, which (in theory) could poison a jury pool and harm a defendant’s Sixth Amendment right to a trial by an impartial jury. A judge may close a courtroom “only if specific findings [by the court] are made that (1) there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity, (2) there is substantial probability that closure would prevent that prejudice, and (3) reasonable alternatives to closure would protect the defendant’s rights.” Ex Parte Hearst-Argyle Television, Inc., 631 S.E.2d 86, 90, 369 S.C. 69 (S.C. 2006) (citing In re S.C. Press Ass’n, 946 F.2d 1037, 1041 (4th Cir. 1991); In re Charlotte Observer, 882 F.2d at 853 (4th Cir. 1989)).
CompareD. Post-trial proceedings
In In re Washington Post Co., 807 F.2d 383, 389 (4th Cir. 1986), the Fourth Circuit found that the First Amendment right of access extends to plea hearings and sentencing hearings, noting that “[b]ecause the taking of a guilty plea serves as a substitute for a trial, it may reasonably be treated in the same manner as a trial for First Amendment purposes. Sentencing may also be viewed as within the scope of the criminal trial itself.” The court added that “even if plea hearings and sentencing hearings are not considered a part of the trial itself, they are surely as much an integral part of a criminal prosecution as are preliminary probable-cause hearings, suppression hearings, or bail hearings, all of which have been held to be subject to the public’s First Amendment right of access.” Id.
In Ex parte Greenville News, 482 S.E.2d 556 (S.C. 1997), the South Carolina Supreme Court held that the First Amendment right of access applies to post-conviction proceedings to inquire into potential juror misconduct. The court reversed the trial court’s decision and ruled that juror privacy interests can be protected by simply redacting jurors’ names or identifying information when unsealing records.
CompareE. Appellate proceedings
In United States v. Moussaoui, 65 F. Appx. 881, 890 (4th Cir. 2003), the Fourth Circuit noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”
Article 1, section 9 of the South Carolina Constitution provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.” The United States Supreme Court has interpreted the guarantees of free speech and freedom of the press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). Although South Carolina jurisprudence has dealt exclusively with pre-trial and trial court access, nothing in those cases suggests the presumption of openness is overcome or in any meaningful way abrogated in the state appellate courts.
CompareIV. Access to criminal court records
CompareA. In general
The South Carolina Public Index (https://www.sccourts.org/caseSearch/) provides the names of criminal court records filed with the clerk of court, but presently it is not possible to view the contents of a .pdf document online. Interested parties should visit the respective courthouse and clerk of court for general sessions case records to request certain records.
CompareB. Arrest records
Access to arrest records is not very broad, and attorneys likely won’t disclose them because of confidentiality. Inmate status via Vinelink will show incarceration records. Jail websites will show current incarceration but not necessarily past incarceration. Direct requests for criminal history reports may be made for a fee to the State Law Enforcement Division (https://catch.sled.sc.gov/).
CompareC. Dockets
The press and public have access to court dockets.
Because court schedules are subject to change, the court system usually does not publish them but sends them by email to attorneys who practice in general sessions courts (circuit courts that hear criminal felony cases).
Summary courts, also known as magistrate courts, are organized by county. Magistrate courts hear misdemeanor criminal cases with fines of $500 or less or jail time of 30 days or less and civil cases where the amount in controversy does not exceed $7,500. The magistrate courts will print their dockets and make them available online through each county’s public index.
CompareD. Warrants, wiretaps and related materials
Warrants, wiretaps and other enforcement and investigative records are available through a South Carolina Freedom of Information Act request. The records, assuming they exist and are responsive to the request, are discoverable, but the law enforcement agency may redact information that would disclose the contents of intercepted wire or other electronic communication not already disclosed at trial, information that would endanger the life or safety of any individual if released, or information that would disclose current techniques or procedures for law enforcement investigations, among other reasons provided. S.C. Code Ann. § 30-4-40(3).
CompareE. Discovery materials
Courts across the country have held that discovery documents that have not been filed with the court traditionally have not been open to the public, and therefore there is no First Amendment-based right of access. When discovery documents are filed with the court, however, they become part of the court record and are presumed to be open for review.
Court records are mandated to be open for public inspection under the South Carolina Freedom of Information Act. Exemptions related to discovery records might include law enforcement records or information of a personal nature. For example, materials that the prosecution provides to defense attorneys often fall under the law enforcement exemption because release could potentially prejudice an ongoing police investigation or affect a defendant’s right to a fair trial.
For more detailed information, see: https://www.sccourts.org/summaryCourtBenchBook/displaychapter.cfm?chapter=GeneralF.
Compare
F. Pretrial motions and records
As set forth above, both the South Carolina Constitution and statutes provide a presumptive right of public access to court records. This rule applies to pre-trial records in the criminal context.
As a practical matter, physical copies of these records are generally available at the court clerk’s office records department in each county. Although many court documents of civil proceedings are available through each county’s public index system, criminal court records are not available online but are kept in physical form at the clerk’s office and are available upon request.
CompareG. Trial records
As set forth above, both the South Carolina Constitution and statutes provide a presumptive right of public access to court records. This rule applies to trial records in the criminal context.
While trial is ongoing, the court will have exclusive access for parties, witnesses, and attorneys, and therefore there is no practical access for the public. However, once trial exhibits are admitted into evidence, they are presumed publicly available, although South Carolina, unlike other states, has not formally recognized this common law principle of access. Rule 606 of the South Carolina Appellate Court Rules provides that the clerk of court may temporarily release trial exhibits to any “person as may be ordered by the court.” Consequently, it is advised that any person make a request for coverage under Rule 605, SCACR, and note access to certain trial exhibits is also requested.
In criminal (non-death penalty) cases, the clerk of court must keep the trial exhibits for at least 18 months after verdict when the party who introduced the record is expected to reclaim it. Rule 606, SCACR. In civil cases, the clerk of court must keep the exhibits for 60 days after verdict or 60 days after an appellate court remands a case to circuit court. Rule 606, SCACR.
CompareH. Post-trial records
As set forth above, both the South Carolina Constitution and statutes provide a presumptive right of public access to court records. This rule applies to post-trial records in the criminal context. Ex parte Greenville News, 462 S.E.2d 165 (S.C. 1997).
CompareI. Appellate records
As set forth above, both the South Carolina Constitution and statutes provide a presumptive right of public access to court records. This rule applies to appellate records in the criminal context.
South Carolina’s court system has a portal to access appellate records at https://www.sccourts.org/ACMS. The portal describes records available online compared to records available at the courthouse and addresses a number of access issues.
CompareJ. Other criminal court records issues
Magistrate courts will likely have a harder time locating files because of sheer volume of records and expungement.
CompareV. Access to civil proceedings
CompareA. In general
Article 1, section 9 of the South Carolina Constitution provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.” The United States Supreme Court has interpreted the guarantees of free speech and press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).
The constitutional right of the public and the press are the same. Ex parte Columbia Newspapers, Inc., 286 S.C. 116, 333 S.E.2d 337 (1985) (interpreting S.C. Const. art. I, § 9). This right is not absolute; it is subject to a balancing of the interests involved. Ex parte Columbia Newspapers, 333 S.E.2d 337. The legislature may impose limitations on the right of access. Id. (applying S.C. Code Ann. § 20-7-755, which states that the general public “shall be excluded” from all hearings in the cases of children). Although S.C. Code Ann. § 20-7-755 says “shall,” the public or the press may challenge the closure. Ex parte Columbia Newspapers, 286 S.C. at 333. The court must make specific findings which explain the balancing of the interests involved and the need for closure. Id. The court does not need to make these findings until a closure is challenged. Id.; § 2:10. Exclusion of public, Trial Handbook for South Carolina Lawyers § 2:10 (5th ed.).
CompareB. Pre-trial proceedings
As set forth above, article 1, section 9 of the South Carolina Constitution provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.” The United States Supreme Court has interpreted the guarantees of free speech and press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).
There may be trials when one party wants to exclude the public and the press from preliminary hearings, although this occurs more often in criminal cases than in civil cases. South Carolina does not have a civil case on point, but courts may apply the standard for precluding the public from criminal preliminary proceedings to civil proceedings. To preclude the public from preliminary proceedings in criminal cases, the trial court must make specific findings that the closure is essential to preserve higher values and is narrowly tailored to serve that interest. In re Greenville News, 332 S.C. 394, 505 S.E.2d 340 (1998); Ex parte First Charleston Corp., 329 S.C. 31, 495 S.E.2d 423, 26 Media L. Rep. (BNA) 1733 (1998). When a party requests to close preliminary proceedings, the trial court must make specific findings that: (1) there is a substantial probability of prejudice from publicity that closure would prevent; and (2) there are no reasonable alternatives to closure that would adequately protect the defendant's right to a fair trial. In re Greenville News, 505 S.E.2d 340; Ex parte First Charleston Corp., 495 S.E.2d 423 (1998).
Only an overriding interest may overcome the presumption of openness. Closure orders must have specific findings so a reviewing court can determine whether the closure order was properly entered. In re Greenville News, 505 S.E.2d 340. Merely ruling that there is a substantial probability of prejudice and no reasonable alternative to closure, without substantiating facts, is not sufficient. Id. Proponents for openness should make a motion to reconsider if the order is deficient. See Ex parte First Charleston Corp., 495 S.E.2d at 423 (noting that the trial judge must make specific findings of fact when ruling on a closure motion); § 2:11.Closure of pretrial proceedings, Trial Handbook for South Carolina Lawyers § 2:11 (5th ed.)
CompareC. Trials
Article 1, section 9 of the South Carolina Constitution provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.” The United States Supreme Court has interpreted the guarantees of free speech and freedom of the press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).
Information about the structure of South Carolina courts, contact information for court personnel, rules governing the administration of justice (and practice of law), dockets for cases, and court case records can be found at https://www.sccourts.org/index.cfm.
The inside of the courthouse is subject to government regulation of a person’s First Amendment rights and is more likely to be regulated than the area immediately outside the courthouse, such as the public sidewalk. Article 1, section 9 of the South Carolina Constitution provides “all courts shall be public . . .”, but that does not mean that reasonable requests by bailiffs, clerks of court, or judges can be ignored. If courthouse or courtroom access is unreasonably denied, the affected individual should contact the South Carolina Press Association at (803) 750-9561 or a licensed attorney.
CompareD. Post-trial proceedings
As set forth above, both the South Carolina Constitution and statutes provide a presumptive right of public access to court records. This rule applies to post-trial records in the criminal context. Ex parte Greenville News, 462 S.E.2d 165 (S.C. 1997). There is not a case on point, but the law should apply the same as in criminal proceedings.
CompareE. Appellate proceedings
In United States v. Moussaoui, 65 F. Appx. 881, 890 (4th Cir. 2003), the Fourth Circuit noted that “the First Amendment guarantees a right of access by the public to oral arguments in the appellate proceedings of this court. Such hearings have historically been open to the public, and the very considerations that counsel in favor of openness of criminal trial support a similar degree of openness in appellate proceedings.”
Article 1, section 9 of the South Carolina Constitution provides that “[a]ll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained.” The United States Supreme Court has interpreted the guarantees of free speech and press found in the First Amendment to the United States Constitution to include a guarantee of open and public courts. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). Although South Carolina jurisprudence has dealt exclusively with pre-trial and trial court access, nothing in those cases suggests the presumption of openness is overcome or in any meaningful way abrogated in the state appellate courts.
CompareVI. Access to civil records
CompareA. In general
The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq., protects rights of access to court records, and all filed records are available through each county’s public index website. A link to each county public index webpage is available at https://www.sccourts.org/caseSearch/.
Because South Carolina has a long history of maintaining open court proceedings and records, the state adopted Rule 41.1, SCRCP, to establish guidelines for the sealing of certain documents filed with the courts. Rule 41.1(d) provides that a court must provide the specific reasons for why sealing is necessary. Rule 41.1 (c) prohibits the sealing of settlement agreements involving a public body of the state.
An editor’s note under Rule 41.2 of South Carolina’s Rules of Civil Procedure states:
“Easy access to electronic court records raises privacy concerns. This rule details the type of personal information that parties are required to redact in court filings. Parties preparing or filing documents are prohibited from filing documents which contain personal identifying information delineated in S.C. Code Ann. § 30-2-330(A). Furthermore, parties should exercise caution in including other sensitive personal data in filings, such as medical records, employment history, individual financial information, proprietary or trade secret information, information regarding an individual's cooperation with the government, information regarding the victim of any criminal activity, or national security information.”
SCRCP 41.2.
CompareB. Dockets
The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq., protects rights of access to court dockets (also known as “rosters”), and all completed rosters are available through each county’s public index website. A link to each county public index webpage can be found at https://www.sccourts.org/clerks/roster_map.cfm.
CompareC. Discovery materials
While there is no South Carolina case law on point, courts across the country have held that unfiled discovery documents have not traditionally been open to the public, and therefore there is no First Amendment-based right of access. When discovery documents are filed with the court, however, they become part of the court record and are presumed to be open for review. Article I, § 9 of the South Carolina Constitution, providing that all courts shall be public, means that the public, and likewise the press, has a right of access to court proceedings subject to a balancing of interests with the parties involved. Ex parte Columbia Newspapers, Inc., 286 S.C. 116, 333 S.E.2d 337 (S.C. 1985).
Court records are open for public inspection under the South Carolina Freedom of Information Act (S.C. Code Ann. § 30-4-30). Public access to court records also is guaranteed by the open courts provision of South Carolina’s Code of Laws (S.C. Code Ann. § 14-3-410, § 14-5-10, § 14-8-240, and § 14-9-150).
CompareD. Pre-trial motions and records
The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq., protects rights to access court records, including pretrial motions, and all filed motions are available through each county’s public index website. A link to each county public index webpage can be found at https://www.sccourts.org/caseSearch/.
CompareE. Trial records
Exhibits become public records when they are admitted into evidence at a trial or hearing. Requestors can access them under the South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10, et. seq. Contact the local clerk of court if a trial is still pending regarding the availability of trial or motion records.
CompareF. Settlement records
Unless sealed by court order, settlement records filed with the court may be requested under the South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq., and all filed settlement records are available through each county’s public index website. A link to each county public index webpage can be found at https://www.sccourts.org/caseSearch/.
CompareG. Post-trial records
The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq. protects rights of access to post-trial records, and all filed post-trial records are available through each county’s public index website. A link to each county public index webpage can be found at https://www.sccourts.org/caseSearch/.
CompareH. Appellate records
South Carolina appellate courts are courts of record and these courts’ records are open to public inspection at all times. S.C. Code Ann. § 14-8-240. The South Carolina Freedom of Information Act, S.C. Code Ann. § 30-4-10 et. seq. protects rights of access to appellate court records, and all filed appellate records are available through C-Track Public Access system website. A link to the C-Track Public Access system is available at https://www.sccourts.org/ACMS/ (once you click accept at the bottom of the page, you can enter the system).
CompareI. Other civil court records issues
In South Carolina, a record does not become a public record until it is in the hands of a public body, like a court. Consequently, any record that is not entered into evidence, filed with a court, or signed by a judge, is likely not yet considered public information. Those seeking these records may request them from attorneys for the parties.
CompareVII. Jury and grand jury access
A “presumption of openness” applies to pretrial jury voir dire proceedings. Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). Because openness enhances both fairness and the appearance of fairness, this presumption allowing public access may be overcome only by an overriding interest based on findings that closure is: (1) essential to preserve higher values; and (2) is narrowly tailored to serve that interest. Press-Enterprise Co., 464 U.S. at 510; § 6:11. Openness of voir dire proceedings, Trial Handbook for South Carolina Lawyers § 6:11 (5th ed.).
CompareA. Access to voir dire
A “presumption of openness” applies to voir dire proceedings, and the proceeding is open to the public. Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (recognizing a right of access to voir dire in a criminal case). The Supreme Court in Press-Enterprise stated that a court can close the proceeding only by an overriding interest that is: (1) essential to preserve higher values; and (2) is narrowly tailored to serve that interest. Id. at 510.
If a juror has a legitimate privacy concern, such as if the voir dire questioning involves rape of a juror or a family member, then a court may close the proceeding and also may redact the transcript of the proceedings. Ex parte Greenville News, 326 S.C. 1 (1997) (discussing the general rule).
CompareB. Juror identities, questionnaires and other records
Potential juror lists are available from the clerk of court of the local county courthouse the week before trial for either common pleas (civil cases) or general sessions (criminal matters).
Juror drawings must be made openly and publicly in the office of the clerk of court of common pleas, and the jury commissioners shall give ten days' notice of the place, day, and hour of each of the drawings by posting in a conspicuous place on the courthouse door or by advertisement in a county newspaper. S.C. Code Ann. § 14-7-220.
The members of the jury may not be photographed except when they happen to be in the background of other subjects being photographed. Camera and audio coverage of prospective jurors during selection is prohibited. SCACR 605.
CompareC. Grand jury proceedings and records
Both state and county grand jury proceedings are secret and grand jurors are prohibited from revealing the nature or substance of a grand jury proceeding. S.C. Code Ann. § 14-7-1720.
CompareD. Interviewing jurors
South Carolina does not have a rule prohibiting the press from speaking with jurors when a case has concluded. But, jurors should not before submission of the case converse with outsiders or among themselves on any subject connected with the trial or form or express any opinion thereabout; the court should admonish jurors not to discuss the case when they are permitted to separate during trial. State v. Aldret, 327 S.C. 282 (Ct. App. 1997).
The U.S. Court of Appeals for the Fourth Circuit has held that the right of a party to interview jurors is governed by Federal Rule of Evidence 606, which “prohibit[s] the interrogation of jurors except with regard to ‘whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.’” United States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988).
CompareVIII. Proceedings involving minors
South Carolina law provides that “the general public must be excluded and only persons the judge finds to have a direct interest in the case or in the work of the court may be admitted.” S.C. Code Ann. § 63-3-590. However, because article I, section 9 of the South Carolina Constitution provides that “all courts shall be public,” the public and press also have rights concerning access to court proceedings. The presiding judge will be asked to balance the interests of the minor with those of the public. When challenged by the public or media, the decision of a judge to close any proceeding must be supported by findings that explain the balancing of interests and the need for closure of the proceeding.
CompareA. Delinquency
Under South Carolina’s Title 63 of the Children’s Code, the name, identity, or picture of a child under the jurisdiction of the court must not be provided to a newspaper or radio or television station unless:
(1) authorized by court order;
(2) the solicitor has petitioned the court to waive the child to circuit court;
(3) the child has been bound over to a court which would have jurisdiction of the offense if committed by an adult; or
(4) the child has been adjudicated delinquent in court for one of the following offenses:
(a) a violent crime, as defined in Section 16-1-60;
(b) grand larceny of a motor vehicle;
(c) a crime in which a weapon, as defined in Section 59-63-370, was used; or
(d) distribution or trafficking in unlawful drugs, as defined in Article 3, Chapter 53 of Title 44.
S.C. Code Ann. § 63-19-2040 (emphasis added).
CompareB. Dependency
All papers and records pertaining to a termination of parental rights are confidential and all court records must be sealed and opened only upon order of the judge for good cause shown. S.C. Code Ann. § 63-7-2600.
CompareC. Other proceedings involving minors
In Ex parte Island Packet, 417 S.E.2d 575 (S.C. 1992), the South Carolina Supreme Court held that the press had a First Amendment right of access to the transcripts of a juvenile transfer hearing and to the transfer proceedings themselves. The burden of proof is on the party seeking closure. Here, the court reversed the closure order, applying the Press-Enterprise II standard.
CompareD. Prohibitions on photographing or identifying juveniles
South Carolina law prohibits the disclosure of the name, identity, or picture of a juvenile who is subject to the jurisdiction of the family court. S.C. Code Ann. § 63-19-2040. Consequently, unless 1) a court has authorized the release of the juvenile’s identity, 2) the prosecutor has filed a petition to try the juvenile as an adult, or 3) the child has been adjudicated delinquent in court for grand larceny of an automobile, drug distribution or trafficking, or an offense involving a violent crime or one in which a weapon was used, the identity of the juvenile may not be disclosed. S.C. Code Ann. § 63-19-2040.
CompareE. Minor testimony in non-juvenile courts
Minor testimony before courts, like other juvenile proceedings before the family court, is public information and takes place in open courtrooms unless the presiding judge has either closed the proceeding or in some lawful way has obscured the identity of the testifying juvenile witness.
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
There are no federal or state-recognized tribal courts in South Carolina.
CompareB. Probate
Probate courts are courts of record that handle estate matters, guardianships and conservatorships, and competency proceedings and issue marriage licenses. Some probate courts also preside over treatment courts.
Except as otherwise provided by law, probate court records are subject to inspection by any interested person. S.C. Code Ann. § 14-23-1120. The South Carolina Supreme Court also has issued an administrative order in regards to the records retention policy for probate courts at: https://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo=2014-05-23-02.
Estate proceedings in probate court are open to the public under the First Amendment and Ex parte Island Packet, 417 S.E.2d 575 (S.C. 1992), which sets forth the elements in determining whether a court proceeding should be open to the public. Guardianship and conservatorship proceedings can be limited to the public under S.C. Code Ann. § 30-4-40(a)(2), which limits the disclosure of information that would constitute an unreasonable invasion of privacy, including information related to the name and contact information for individuals with disabilities.
CompareC. Competency and commitment proceedings
The presiding probate judge of a competency or commitment proceeding has the right to exclude all persons “not necessary for the conduct of the proceedings.” S.C. Code Ann § 44-17-570. The judge routinely will poll persons present to determine what interest each individual has in the proceeding.
CompareD. Attorney and judicial discipline
The South Carolina Commission on Lawyer Conduct provides that when formal charges are filed against a lawyer, those charges and allegations of misconduct (and all other information filed with or issued by the Commission) are confidential until 30 days after the filing of the answer or, if no answer is filed, 30 days after the expiration of the time to answer under Rule 23 of the Rules for Lawyer Disciplinary Enforcement. All subsequent records and proceedings relating to the misconduct allegations are open after that expiration of time. However, where allegations of incapacity are raised during the misconduct proceedings, all records, information, and proceedings relating to these allegations will be considered confidential.
CompareE. Immigration proceedings
CompareF. Other proceedings
Treatment Courts: South Carolina has adult drug courts, juvenile drug courts, mental health courts, and veterans treatment courts that divert non-violent offenders with alcohol, substance abuse or mental health issues to individualized rehabilitation and treatment. These treatment courts are administered by county or judicial circuits and can be administered by circuit court, family court, probate court, master-in-equity, and magistrate court judges. To determine what court and which judge is administering the treatment court go to https://www.sccourts.org/courtOrders/indexAdmin.cfm to find the South Carolina Supreme Court administrative order that establishes the treatment court and assigns the presiding judge.
Records of drug court, mental health court, and veterans’ treatment court participants are confidential and must not be disclosed unless provided under S.C. Code Ann. § 44-22-100(A); see also 42 U.S.C. Section 290dd-2.
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
Standing to intervene in a case for the limited purpose of challenging a third-party gag order will usually be allowed if the media outlet or its journalist’s ability to access the proceeding is hampered, the judge prohibits access under the state’s open records laws, or if the judge gags the media outlet or its individual journalists from publishing information gathered about the case.
CompareB. Gag orders on the press
Gag orders on the press carry a presumption of unconstitutionality. A court asked to review its own gag order or another judge’s gag order must balance the constitutional rights guaranteed to the media under the First Amendment against the constitutional rights the court is purportedly trying to preserve through the entry of its gag order. Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).
CompareC. Gag orders on participants
The law regarding restrictive orders aimed at trial participants is less clear than that of orders aimed at the press. Generally, the consensus had been that courts have much broader power to limit what trial participants can say, compared to the press, about a case outside of court.
Gag orders on participants may be upheld due to the state interests in maintaining the integrity of the proceeding (trial or otherwise) and in protecting the constitutional rights of other participants, such as a defendant’s Sixth Amendment right to an impartial jury.
Recently, however, the Fourth Circuit has held that gag orders on trial participants are presumptively invalid. In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018). In a unanimous opinion, the court held that gag orders against trial participants are only valid when (i) there is a reasonable likelihood that a party would be denied a fair trial without the gag order, and the order actually operates to prevent the threatened danger; (ii) the order is the least restrictive means to protect that interest; and (iii) the order is narrowly tailored to serve its intended purpose. Id. Gag orders cannot be vague in outlining what is prohibited or to whom they apply.
CompareD. Interviewing judges
Canon 4 of the South Carolina Code of Judicial Conduct provides: “A judge shall conduct all of the judge's extrajudicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties.” A judge will virtually always decline to comment about a matter that is pending or was previously before the courts, for fear of violating Canon 4 of the Code of Judicial Conduct. Judges, though, do occasionally grant interview requests for discussions about the judge’s family or private life, or for general discussions about the law and access to it.
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
The South Carolina Supreme Court has held that while a court may consider whether sealing judicial records would encourage settlement, this factor standing alone is insufficient to overcome the public’s right of access. Davis v. Jennings, 304 S.C. 502, 505, 405 S.E.2d 601, 603 (S.C. 1991).
Where a criminal defendant seeks to restrict the public’s First Amendment right of access on the basis of his or her Sixth Amendment right to a fair trial, the defendant must show that (1) there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity; (2) there is a substantial probability that closure would prevent that prejudice; and (3) reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. In re S.C. Press Ass'n, 946 F.2d 1037, 1041 (4th Cir. 1991) (quoting In re State Record Co., Inc., 917 F.2d 124, 128 (4th Cir. 1990)); accord In re Charlotte Observer, 882 F.2d 850 (4th Cir. 1989) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986)).
CompareB. Cameras and other technology in the courtroom
South Carolina Appellate Court Rule 605 provides that, generally, “the broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions is prohibited.” However, the rule identifies certain exceptions, one of which is for media coverage. A presiding judge may allow use of “video, still cameras or recorders” to cover court proceedings after reasonable notice has been given to the judge by the media representative. S.C. App. Ct. R. 605(f)(1)(i).
If the judge requires written notice, the media should use Form 1 (https://www.sccourts.org/forms/searchType.cfm). The presiding judge may “refuse, limit or terminate media coverage of an entire case, portions thereof, or testimony of particular witnesses as may be required in the interests of justice,” according to the rule. The rule also explicitly prohibits audio pickup or broadcast of conferences in court facilities between courtroom participants (including parties, witnesses, attorneys and judges) and also prohibits the photographing of jurors or prospective jurors “except when they happen to be in the background of other subjects being photographed.” S.C. App. Ct. R. 605(f)(2)(iii).
Any person desiring to record or broadcast a courtroom proceeding should provide a completed Form 1 to the presiding judge as soon as possible before the start of the proceeding. It is advisable to submit this completed form before the day of a proceeding, if possible, but certainly, at least 30 minutes before the start of the proceeding, if done on the same day.
Some judges may require all journalists, even journalists not using cameras or other technology, to complete Form 1.
To determine the presiding judge over a matter, a media member should visit the South Carolina Judicial Department website (https://www.sccourts.org/index.cfm) to view court rosters and individual judges’ contact information.
CompareC. Tips for covering courts in the jurisdiction
Professionalism and respect for the proceedings should be exercised at all times when inside the courthouse. Business attire is required unless a judge approves more casual attire (after reviewing a Form 1) for the movement of cameras or other recording equipment.
Information about the structure of South Carolina courts, contact information for court personnel, rules governing the administration of justice (and practice of law), dockets for cases, and court case records can be found at https://www.sccourts.org/index.cfm.
Please remember that the inside of the courthouse is subject to government regulation of a person’s First Amendment rights and is more likely to be regulated than the area immediately outside the courthouse, such as the public sidewalk. Article 1, section 9 of the South Carolina Constitution provides “all courts shall be public . . .” but that does not mean that reasonable requests by bailiffs, clerks of court, or judges can be ignored. If courthouse or courtroom access is unreasonably denied, the affected individual should contact the South Carolina Press Association at (803) 750-9561, the author to this guide, or a licensed attorney.
The South Carolina Supreme Court has a public information office, but the lower courts do not. On the local level, contacting the presiding judicial officer’s office is typically a good first step in covering court cases.
If there is significant media interest in a particular case, it may be helpful to:
- Develop a media plan that will establish reasonable and adequate guidelines for newsgathering and dissemination;
- Cooperate with other media organizations in distributing information and seek assistance from the court PIO or local court staff;
- Lessen the burden on overworked court staff as much as possible by cooperating on pooling arrangements and list-serves;
- Be flexible about seating arrangements, including helping to arrange for an annex or overflow room if there are not enough seats in the courtroom;
- Respectfully but firmly assert the media’s right of access to proceedings and documents as necessary.
More specific guidance can be found in Rochelle L. Wilcox, When the Media Come to Town: Protocols and Practices, MLRC Bulletin, Jan. 2005, at 143. In addition, in January 2011, the MLRC Newsgathering Committee, Defense Counsel Section, published a Model Media Decorum Order for High Profile Cases & Supporting Memorandum, http://www.medialaw.org/model-briefs-a-practice-guides.
Compare