A. Access to voir dire

The Supreme Court recognized a First Amendment presumption of access to voir dire in Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984). Despite the agreement of the parties, the Supreme Court found the closure unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505. A state appellate court applied the same standards to closure of post-trial civil voir dire. Barber v. Shop-Rite of Englewood & Associates, Inc., 923 A.2d 286, 293 (N.J. Super. App. Div. 2007).

Federal appellate courts have made clear that a generalized interest in juror privacy is insufficient to close voir dire. In In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990), for example, the court noted that “the better practice is for the district court, rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys.”

And in United States v. Brooklier, 685 F.2d 1162, 1169 (9th Cir. 1982), the court rejected the concern that jurors “might be less candid if questioned in public” because “if this general theory of potential prejudice were accepted as sufficient justification for closure without the necessity for finding potential prejudice based upon the circumstances of the particular case, all testimony could be taken in secret.”

The Supreme Court has held that the First Amendment right of access to criminal trials applies to voir dire of jury. Press-Enterprise Co. v. Superior Court of California (“Press-Enterprise I”), 464 U.S. 501, 510–511 (1984).

In Press-Enterprise I, the United States Supreme Court recognized a presumption in favor of public access to the voir direexamination of potential jurors in criminal trials. 464 U.S. 501 (1984). In Presley v. Georgia, the Supreme Court held that the defendant’s Sixth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. 558 U.S. 209 (2010). The Eleventh Circuit later recognized, in an unpublished decision, that closure of voir dire to the public violates the Supreme Court’s decision in Presley. See Capshaw v. United States, 618 F. App’x 618, 623 (11th Cir. 2015).

The district courts in the Eleventh Circuit have repeatedly recognized that the voir dire phase is included in the guarantee of open public proceedings. See United States v. Steinger, 626 F. Supp. 2d 1231, 1234 (S.D. Fla. 2009) (recognizing First Amendment right of access to "integral parts of the trial process such as voir dire proceedings and preliminary hearings, as well as docket sheets") (citing United States v. Ochoa-Vasquez, 428 F.3d 1015, 1029 (11th Cir. 2005)); see also Brown v. United States, Nos. 407CV085, 403CR001, 2008 WL 4593386, *1 (S.D. Ga. 2008); see also United States v. Sami Amin al-Arian, et al., No. 8:03-cr-77-T-30TBM, 2005 WL 8166946, *2 (M.D. Fla. 2005).

The Supreme Court recognized a First Amendment presumption of access to voir dire in Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984). Despite the agreement of the parties, the Court found the closure of voir dire to the public was unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505; see also In re Globe Newspaper Co., 729 F.2d 47, 51 (1st Cir. 1984).

The Second Circuit has held that exclusion of the public for the entire duration of voir dire violates a criminal defendant’s Sixth Amendment rights. See United States v. Gupta, 699 F.3d 682 (2d Cir. 2012); See Gibbons v. Savage, 555 F.3d 112 (2d Cir. 2009) (holding that closure of voir dire proceedings for one afternoon was too trivial to warrant vacating a criminal conviction). The Court requires that there be a sufficient factual basis for closure of voir dire examinations. ABC v. Stewart, 360 F.3d 90 (2d Cir. 2004) (vacating lower court’s order that barred the press from attending voir dire proceedings in judge’s chambers). But see United States v. King, 140 F.3d 76 (2d Cir. 1998) (affirming order withholding transcripts of in camera jury voir dire until the jury was impaneled in criminal prosecution of Don King and restricting access to transcript of voir dire in prior prosecution of defendant on the grounds that proper findings were made supporting the holding that the limited closures were necessary to ensure juror candor in the voir dire process).

The Supreme Court recognized a First Amendment presumption of access to voir dire proceedings in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984). Despite the parties’ agreement that the proceedings should be closed, the Supreme Court found the closure unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505.

The Third Circuit has affirmed the right of access to voir dire proceedings.  See United States v. Wecht, 537 F.3d 222 (3d Cir. 2008); United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) (finding that trial court erred in sealing transcripts of voir dire and imposing restrictions on juror interviews post-trial); id. (“It would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door.”).

The Third Circuit has also recognized a First Amendment right of access “to post-trial hearings to investigate jury misconduct.”  United States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994).

The public’s First Amendment right of access extends to voir dire. In re Greensboro News Co., 727 F.2d 1320, 1322 (4th Cir. 1984); In re Wash. Post Co., 807 F.2d 383, 388 (4th Cir. 1986).

Where the defendant’s Sixth Amendment right to a fair trial is sufficient to overcome the public’s First Amendment right of access to voir dire, a transcript should be made of the jury selection process and disclosed to the public without substantial delay once a jury has been chosen and seated. See In re Greensboro News Co., 727 F.2d 1320, 1321 n.2 (4th Cir. 1984).

The right to a public trial is not limited to issues that arise after a jury is sworn or to times when the jury is present. Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir. 1984). This right extends at least to those pretrial hearings and other proceedings that are an integral part of the trial, such as jury selection and motions to suppress evidence. Id. Jury selection is a critical part of a trial and should not be considered a preliminary or secondary part for purposes of openness. United States v. Ford, 824 F.2d 1430, 1436 (5th Cir. 1987).

The Fifth Circuit has, however, upheld the right to a closed voir dire. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). But closed voir dire must be rare and only when it has been shown that a particular interest outweighs the value of openness. A court cannot order a closed voir dire without consideration of alternatives to closure. In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990). Furthermore, the Fifth Circuit has held that a court cannot close voir dire only on the expectation that prospective jurors may be less than candid in their responses because of privacy concerns. Id. Rather, a prospective juror must make an affirmative request that he or she be questioned in private. Id. Before closing voir dire, a trial court should first inform the prospective jurors in advance that if any of them wish to be questioned privately they may do so. Transcripts of closed voir dire sessions must be created, with the court then making a determination as to whether portions should be released in full or redacted for public dissemination. Id.

In In re Petitions of Memphis Publishing Co., 887 F.2d 646 (6th Cir. 1989), the court addressed whether the use of a sound machine to shield voir dire from the public, including the press, in a case with “mammoth pretrial publicity,” was proper.  The media intervened to challenge the use and to open the voir dire process.  Id. at 647.  The district court held that the constitutional right of the defendant to a fair trial justified closing voir dire, but did state that a transcript of voir dire would be available after jury selection was completed.  Id. at 647–48.  Relying upon Press-Enterprise I and II, the circuit court reversed, holding “that the naked assertion by the district court in this case that defendant’s Sixth Amendment right to a fair trial ‘might well be undermined’ without any specific finding of fact to support that conclusion, was insufficient to justify closure…”  Id. at 648.

The Court follows Press Enterprise I.  See United States v. Peters, 754 F.2d 753 (7th Cir. 1985).  See also United States v. Warner, 396 F. Supp. 2d 924, 927-29 (N.D. Ill. 2005).

The Eighth Circuit has recognized that “the public enjoys a qualified right of access” to voir dire. Flynt v. Lombardi, 885 F.3d 508, 513 (8th Cir. 2018) (citing Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015)).

Alabama courts recognize the United States Supreme Court’s ruling that the “public’s right of access extends to jury voir dire . . . .” Ex parte Birmingham News Co., 624 So. 2d 1117, 1125 (Ala. Crim. App. 1993) (citing Press-Enter. Co. v. Superior Court, 464 U.S. 501, 508 (1984)).

The federal constitutional right of access to jury selection, among other judicial proceedings, is well-established.  While there are state law provisions, including court rules, applicable to voir dire and juror-related records, any party challenging restrictions on access to such proceedings or records should not overlook that state law may provide greater—but cannot afford less—protection than that afforded by the First Amendment.  The Alaska Administrative Rules address both open court proceedings and juror privacy. Apart from the right to attend in person, the electronic record and log notes from jury selection are public. Alaska Admin. R. 15(j)(4).  However, the rule provides that juror names should only be recorded on the confidential form used to document juror selection and must never be recorded in the log notes. Id. And if jurors (and, presumably, potential jurors) are questioned in private, the electronic record and log notes related to that questioning are confidential. Id.  The Alaska Administrative Rule that governs use of cameras and electronic equipment while covering court proceedings provides that “Jurors may not be photographed, filmed, videotaped, sketched, or recorded, nor may the juror’s image or voice be broadcast, streamed, or posted on the internet, unless the juror is discharged from jury duty and the juror consents.” Alaska Admin. R. 50(a)(3)(B).

The media may access voir dire and may obtain a written transcript of the proceedings, but it is prohibited from photographing jurors at any time.  Specifically, Rule 122(k)(2) of the Arizona Supreme Court Rules provides that “[c]ameras must be placed to avoid showing jurors in any manner.”  The rule further provides that “[a]udio recordings or broadcasts of jurors’ statements or conversations are also prohibited except that a juror may expressly consent to an interview after the jury has been discharged.”  Id.

The right to public trial extends to voir dire. Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984). Thus, the press has right of access to voir dire. Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977). Trial courts must take reasonable measures to accommodate public attendance during voir dire. See Schnarr v. State, 2017 Ark. 10, 13.

Jury selection is presumptively open to the public and press. Ukiah Daily Journal v. Superior Court, 165 Cal. App. 3d 788, 791, 211 Cal. Rptr. 673 (1985). The presumption can only be overcome if the trial court makes express findings that closure is necessary to preserve an overriding interest, and the closure order is narrowly tailored. Id. General concerns about potential jurors being less candid, or being influenced by the statements of other potential jurors, are not a sufficient overriding interest. Id. at 792-793.

Colorado case law is not well developed on the public’s right of access to voir dire.  See Stackhouse v. People, 2015 CO 48, ¶¶ 19–21, 386 P.3d 440, 447 (Colo. 2015) (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

The Colorado court system’s media policy prohibits photography and audio or video recording of jury voir dire. See Rule 3, Chapter 38 of the Colorado Supreme Court Rules (pdf).

Public access to pretrial proceedings includes access to voir dire. See, e.g., State v. Komisarjevsky, 302 Conn. 162, 183, 25 A.3d 613, 626 (2011).  That access, both in state and federal court, is protected by the First Amendment.  ABC, Inc. v. Stewart, 360 F.3d 90, 102 (2d Cir. 2004).

Voir dire is “presumptively . . . a public process with exceptions only for good cause shown.” United States v. Aguiar, 894 F.3d 351, 355 (D.C. Cir. 2018) (but finding no prejudice resulted from trial counsel’s failure to object to the closure of voir dire) (citing Press-Enterprise Co. v. Super. Ct., 464 U.S. 501, 505, (1984)).

The D.C. Circuit has found that a district court erred by ordering that voir dire be conducted in camera in a criminal trial except for prospective jurors who elected to be questioned in open court. Cable News Network v. United States, 824 F.2d 1046 (D.C. Cir. 1987) (court failed to make findings that public interrogation of individual would touch on “deeply personal” matters that should legitimately be kept out of public domain, failed to require prospective jurors to make affirmative request for in camera examination, and failed to consider alternatives to closure). Relying on Cable News Network, a D.C. district court permitted the Washington Post's application for public access to certain voir dire questionnaires completed by prospective jurors in a criminal case. In re Wash. Post, No. 92–301 (RCL), 1992 WL 233354 (D.D.C. July 23, 1992).

The D.C. Court of Appeals has also recognized that the media has a presumptive, First Amendment right of access to written jury questionnaires used as part of the voir dire process. In re Access to Jury Questionnaires, 37 A.3d 879, 885–87 (D.C. 2012).

At both local and federal courts in D.C., the names of potential jurors are not read aloud during voir dire.  See Journalists’ Handbook to the Courts in the District of Columbia, Council for Court Excellence 30, https://www.dccourts.gov/sites/default/files/pdf-forms/JournalistsHandbook.pdf.

In Cable News Network, Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987), the D.C. Circuit reversed an order entered by the federal district court denying the press’s request for voir dire of prospective jurors to be conducted in open court. The appeals court held that the district court had failed to abide by the standards set out by the United States Supreme Court in Press-Enterprise I. Id. at 1047-48.

The D.C. Court of Appeals has held that the use of a “husher” during voir dire (a white noise machine), such that the public still has access to the courtroom but cannot hear the voir dire questioning at the bench, does not amount to a closure or partial closure of the courtroom. Blades v. United States, 200 A.3d 230, 238-41 (D.C. 2019); Copeland v. United States, 111 A.3d 627, 634-35 (D.C. 2015).

Jury selection is generally open. Florida courts have applied Press-Enterprise I in holding that “[t]he right to a public trial in criminal cases includes the voir dire process.” Moore v. State, 765 So. 2d 925, 926 (Fla. 2d DCA 2000); see also Morris Publ’g Grp., LLC v. State, 136 So. 3d 770, 780 (Fla. 1st DCA 2014) (“Our first decision point is to determine whether the qualified right of public access to criminal trials, guaranteed by the First and Fourteenth Amendments, attaches to the jury selection proceedings at issue. We conclude that Press-Enterprise I is directly controlling and answers that question affirmatively.”).

The Moore court further held that an order closing voir dire must be based upon the four prong requirements in Waller v. Georgia, 467 U.S. 39 (1984): (1) the party seeking closure must put forth an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect the alleged interest, (3) the court must consider the reasonable alternatives to closure, and (4) the court must make findings which are sufficient to support the closure. Moore, 765 So. 2d at 926-27.  But see Morris Publ’g Grp., 136 So. 3d at 779 (applying a similar three-prong test from Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), instead of the Waller test).

Grand jury proceedings and deliberations are closed under Chapter 905, Florida Statutes. See also Fla. R. Jud. Admin. 2.420(d)(1)(B)(xvi) (noting the clerk must automatically close Chapter 905 grand jury records).

The press and public have a right of access to voir dire proceedings. See, e.g., Blevins v. State, 220 Ga. 720 (1965) (“The requirement that juries must be drawn in open court is a safeguard or guarantee against secret or Star Chamber court proceedings; it is a procedure which enables the public to observe the conduct of the judge in drawing juries and thus prevent any possible corruption or suspicion of corruption in this vital part of our jury system.”). See generally Presley v. Georgia, 558 U.S. 209 (2010) (“The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”). “[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1884). But “such circumstances will be rare, however, and the balance of interests must be struck with special care.” Id. “Trial courts are obligated to take every reasonable measure to accommodate public attendance.” Presley, 558 U.S. at 215.

The Idaho Supreme Court has not addressed constitutional rights of access to voir dire in civil proceedings, although it has recognized a First Amendment right of access to criminal voir dire proceedings.  See Bradbury v. Idaho Judicial Council, 136 Idaho 63, 70, 28 P.3d 1006, 1013 (citing Press-Enter. Co. v. Super. Ct., 464 U.S. 501 (1984)).  It is likely that a court faced with a motion to close voir dire in a civil proceeding would consider such motion under the same procedural and substantive requirements of Press-Enterprise.

The Supreme Court of Illinois addressed the issue of public access to voir dire in People v. Radford, 2020 IL 123975, 181 N.E. 3d 78, 450 Ill. Dec. 78 (2020). Because of space constraints and a large number of spectators, the trial court limited the public spectators to two family members per side. The Illinois Supreme Court held that the partial closure of a courtroom during voir dire did not deprive the defendant of the right to a public trial under the Sixth Amendment. Id. at ¶36. In a dissenting opinion, Justice Neville stated that the First Amendment was the more appropriate vehicle to analyze right of access, and “[t]he public has a right to be present at [voir dire] whether or not any party has asserted the right.” Id. at ¶118 (quoting Presley v. Georgia, 558 U.S. 209, 214 (2010) (internal quotation marks omitted and modification in original).

Moreover, the United States District Court for the Northern District of Illinois has held that “the First Amendment guarantees the press and public the right to attend the voir dire proceeding.” United States v. Black, 483 F. Supp. 2d 618, 623-24 (N.D. Ill. 2007).

There is little Indiana case law on public access to voir dire. However, the Indiana Court of Appeals in an unpublished opinion addressed the question of whether a defendant was entitled to a free copy of a voir dire transcript from his case. May v. Allen, No. 28A04–1601–PL–114, 2016 WL 3369550, *4 (Ind. Ct. App. June 16, 2016). The trial judge stated that the transcript was available for copying for a fee, and the appellate court held that the judge complied with the Access to Public Records Act. Id. at *5. May v. Allen thus suggests that voir dire transcripts are publicly accessible.

Iowa law requires all judicial proceedings to be public “unless otherwise specially provided by statute or agreed to by the parties.” Iowa Code § 602.1601 (2018). However, expanded media coverage of jurors is prohibited in Iowa, except to the extent it is unavoidable in the coverage of the proceedings. Iowa Ct. Rule 25.2(6) (2017). The policy behind the prohibition is to prevent unnecessary or prolonged coverage of individual jurors. Id. In addition, expanded media coverage of jury selection is prohibited by the Iowa Court Rules. Id. 25.2(5). However, expanded media coverage of the return of the jury’s verdict is permitted. Id. 25.2(6).

In State v. Dixon, 112 P.3d 883 (Kan. 2005), the Kansas Supreme Court reaffirmed a presumption in favor of access to court proceedings and approvingly cited Press-Enterprise I, 464 U.S. 501 (1984), which held that voir dire is presumed to be open.

Note:  State v. Dixon was disapproved on other grounds by State v. Wright, 224 P.3d 1159 (Kan. 2010).

The voir dire and impaneling of grand jurors and petit jurors in Kentucky’s trial courts are matters traditionally open to the public.  Kentucky Administrative Procedures of the Court of Justice, Part II, § 5(2) provides that “the names of jurors obtained from the randomized jury list shall be made available to the public”; and § 10(9) of the same rule provides that “the names of jurors selected as grand and petit jurors shall be made available to the public unless the Chief Circuit Judge, or his designee, determines that in the interest of justice, the names shall be kept confidential.”  The impaneling of grand juries in open court, with the names of the prospective grand jurors disclosed to the public, has long been a part of Kentucky criminal practice.  Head v. Commonwealth, 289 Ky. 39, 40 (1941); Kitchen v. Commonwealth, 275 Ky. 564, 570 (1938).

When voir dire occurs in open court, access should be allowed in the same manner as for other pre-trial hearings. See the criminal and civil “Pre-Trial Proceedings” sections above.

Voir dire is open to the public.  See MaineToday Media, 2013 ME 12.  The Law Court has followed Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), in holding that “[a]t the jury voir dire stage of a criminal trial, the public, including the press, has rights protected by the First Amendment to the United States Constitution.”  MaineToday, 2013 ME 12, ¶ 3.

In Maine, general voir dire is conducted in open court by the presiding officer. The attorneys typically submit written proposed voir dire question to the judge. Those proposed questions become part of the court file and are available to the same extent as other materials in court records.  The court may conduct individualized voir dire to question jurors who may have been exposed to information about the case or expressed a possible bias.  See Roberts v. State, 2014 ME 125, ¶ 5, 103 A.3d 1031.

The Court of Appeals has recognized that the First Amendment right of access extends to voir dire. See, e.g., Baltimore Sun Co. v. Colbert, 593 A.2d 224, 227 (Md. 1991) (citing Press-Enterprise Co. v. Super. Ct., 464 U.S. 501 (1984)). And, in Watters v. State, 612 A.2d 1288 (Md. 1992), the Court of Appeals held that the exclusion of the public from the courtroom during voir dire and jury selection in a murder trial, including the defendant’s family and the press, violated the defendant’s Sixth Amendment right to a public trial, and that a new trial was warranted. Id. at 1291. The court wrote that “whether objection to closure is made by the defendant or the press, the public may only be constitutionally excluded from a trial, including voir dire, pursuant to a narrowly tailored order necessary to protect an overriding state interest.” Id.

The jury selection process is presumptively open in Massachusetts.  In order to close the courtroom during jury selection, the Waller factors must be met: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” Commonwealth v. Lopes, 89 Mass. App. Ct. 560, 562–63, 51 N.E.3d 496, 498 (2016) (quoting Martin, 417 Mass. at 194).

Congestion is an insufficient reason to close the courtroom where reasonable alternatives to closure exist (such as dividing the jury pool into multiple rooms or moving to a larger room). Lopes, 51 N.E.3d 496, 498–99 (Mass. Ct. App. 2016) (citing Presley v. Georgia, 558 U.S. 209, 214 (2010)). In order to close the courtroom for congestion purposes, the record must demonstrate that such reasonable alternatives were not available. Id.

Recording and live transmission of voir dire hearings is prohibited, as is “frontal or close-up photography of jurors and prospective jurors.” S.J.C. Rule 1:19(2)(b).

Though voir dire in criminal prosecutions is presumed open, the defendant’s right to fair trial under the Fifth and Sixth Amendment may outweigh such First Amendment right of access; for example, in the prosecution of the terrorists connected with the 9-11 attacks. See United States v. Koubriti, 31 Media L. Rep. 1940 (E.D. Mich. 2003). Generally, though, any order closing voir dire proceedings to the public and press cannot be based simply upon the limitations and size of the courtroom; the court must accommodate the press and the closure must be based upon an overriding interest, the preservation of which makes closure essential. Mary M. Philo, Trial Handbook for Michigan Lawyers, Criminal Trials §7.11 (4th ed. 2019) (citing In re Closure of Jury Voir Dire, 204 Mich. App. 592 (1994)).

The Minnesota Supreme Court has recognized that generally, “the First Amendment requires public access to the jury selection process in criminal trials.” Mankato Free Press Co. v. Dempsey, 581 N.W.2d 311, 312 (Minn. 1998) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). In Butterfield v. State, No. C2-00-1090, 2001 Minn. App. LEXIS 231, at *5 (Minn. Ct. App. Mar. 6, 2001), however, the Minnesota Court of Appeals stated that jurors should be protected from the public disclosure of sensitive personal information during voir dire, and, therefore, “[a] trial court has the discretion to conduct a portion of voir dire in private if circumstances warrant it.” Id. (citing Minn. R. Crim. P. 26.03, subd. 6(1)). If the interrogation during voir dire touches on “deeply personal matters,” this may give rise to a “compelling interest” sufficient to prevent public access to voir dire. Butterfield, 2001 Minn. App. LEXIS 231, at *6 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 511–12 (1984)). In Butterfield, some of the voir dire questions dealt with the jurors’ past experiences with explicit sexual language and, therefore, “[t]he trial court was well within its discretion to permit counsel to privately voir dire the potential jurors who responded affirmatively to these questions in order to minimize their embarrassment and ensure complete and accurate responses.” Id.

Under the Minnesota Rules of Criminal Procedure, if it appears that jurors will be asked “sensitive questions that could be embarrassing,” the court may advise the jurors of their right to exclude the public from voir dire. Minn. R. Crim. P. 26.02, subd. 4(4)(a). When deciding whether to exclude the public, the court must “balance the jurors’ privacy interests, the defendant’s right to a fair and public trial, and the public’s interest in access to the courts.” Id., subd. 4(4)(c). The court may close voir dire only if it finds that there is a “substantial likelihood” that the public presence will “interfere with an overriding interest.” Id. Defendant’s interest in a fair trial as well as a juror’s legitimate interest in having his or her personal matters kept private constitutes an “overriding interest” sufficient to justify closure. Id. Before closing the voir dire, the court must set forth the reasons justifying the closure, which must be made part of the record. Id., subd. 4(4)(f). The court must also review alternatives to closure and must state why such alternatives are inadequate. Id.

The Supreme Court recognized a First Amendment presumption of access to voir dire in Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984). Despite the agreement of the parties, the Supreme Court found the closure unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505.

Federal appellate courts have made clear that a generalized interest in juror privacy is insufficient to close voir dire. In In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990), for example, the court noted that “the better practice is for the district court, rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys.”

Reporters in Mississippi may attend jury selection but are not permitted to take photographs or make audio or video recordings inside the courtroom. Additionally, the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC) prohibit photographing, videotaping or recording serving jurors inside or outside the courtroom until the jurors are discharged from service.

The Mississippi Supreme Court has held that peremptory challenges should be exercised at the bar in open court unless compelling reasons dictate otherwise; if compelling reasons exist, the court must follow notice and hearing procedures for closure. In re Gannett River States Publ’g Corp., 27 Media L. Rep. 1096 (Miss. 1998).

The Mississippi Supreme Court also held that a trial court erred in a murder prosecution by conducting individual voir dire of prospective jurors without first docketing such request for closure, without holding a pre-closure hearing, and without issuing findings of fact and conclusions of law. In re Gannett River States Publ’g Corp., 630 So. 2d 351 (Miss. 1994).

Voir dire examinations are open to the public.  Local district court rules generally restrict the media from televising or broadcasting voir dire.

No Nebraska law.

Nevada generally follows the “historic tradition of open and oral voir dire proceedings.” Stephens Media, LLC v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 125 Nev. 849, 865, 221 P.3d 1240, 1251 (2009).  District courts are required to satisfy the Press-Enter. Co. v. Superior Court of California for Riverside County, 106 S. Ct. 2735 (1986) balancing test requiring it to make specific findings to support a denial of access to voir dire.  Stephens Media, 125 Nev. at 866, 221 P.3d at 1252.

Voir dire of the jury is open to the public.

Neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed.  Rule 23-107 NMRA. New Mexico has ruled that prior restraint on publication concerning the names of jurors selected in criminal case must be based upon imperative circumstances supported by the record that clearly demonstrates that defendant's right to fair trial will be jeopardized. It must further demonstrate that there are no other reasonable alternatives to protect that right. The mere speculation that publishing names of jurors selected in criminal cases might expose them to intimidation during trial is insufficient reason to justify a prior restraint on the media. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 35, 98 N.M. 261, 267, 648 P.2d 300, 306 (holding that the trial court erred in restricting the publication of names of jurors selected in the case where the names were announced in open court and filed as public record).

The right of public access to criminal proceedings encompasses the examination of jurors, known as voir dire. Press-Enterprise Co. v. Superior Ct., 464 U.S. 501 (1984). Nevertheless, “there are important caveats and exceptions to this constitutional right.”  People v. Roberts, 31 N.Y.3d 406, 425–26, 104 N.E.3d 701, 714–15 (2018) (rejecting defendant’s claim that his Sixth Amendment rights were violated when the trial court temporarily excluded a member of his family, due to overcrowding, while the jury was being seated, since defense counsel failed to object and the family member was not excluded from voir dire). “The ability of the public to observe questioning of [jurors] is important, both so that the judge, the lawyers and the prospective jurors will be conscious that they are observed, and so that the public can evaluate the fairness of the jury selection process.” Id. (citing Martin, 16 N.Y.3d at 613).

Courts have “limited discretion” to “close the courtroom to the public” where circumstances warrant.  Id. “Where the voir dire entails discussion of controversial or sensitive issues such that public access to the jurors' responses would significantly inhibit their candor, the presumption of access may be outweighed by fair trial considerations.” Daily News, L.P. v. Wiley, 126 A.D.3d 511, 514, 6 N.Y.S.3d 19, 23 (1st Dep’t 2015) (citing United States v. King, 140 F.3d 76, 82–84 (2d Cir. 1998)); see also People v. Arthur, 178 Misc. 2d 419, 425, 682 N.Y.S.2d 811, 816 (Sup. Ct. N.Y. Cty. 1998) (“Any measure short of sealing [jury selection documents], including the most probing voir dire followed by the clearest jury instruction, could not effectively eliminate the prejudicial impact on the jury of the publication of defendant's alleged uncharged bad acts in this case.”).

The public has a right of access to jury voir dire, unless the proceeding itself is closed by rule or statute.

The public does not have the right to access the following records, as specified in N.D. Sup. Ct. R. 41: names of qualified or summoned jurors and contents of jury qualification forms if disclosure is prohibited or restricted by order of the court; and records of voir dire of jurors, unless disclosure is permitted by court order or rule.

In Ohio ex rel. Beacon Journal Publ’g Co. v. Donaldson, 586 N.E.2d 101 (Ohio 1992), the Ohio Supreme Court reversed an appellate court decision which held that a challenge to closure of voir dire in a highly publicized criminal case was moot because the transcript was not sealed, a local rule providing for notice and opportunity to object and request a hearing had been promulgated, and the trial was open to the public.

Criminal juror questionnaires are public record, but juror responses are not. See Ohio ex rel. Beacon Journal Publ’g Co. v. Bond, 781 N.E.2d 180 (Ohio 2002).  The Supreme Court of Ohio held in Bond that there is a qualified First Amendment right of access to questions asked in the juror questionnaires and in the list of juror names and addresses.  Id. at 195.  The court remanded to the trial court to weigh the right of access against the privacy interests.  Id. at 195–96.

The First Amendment right of access extends to voir dire. See Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). Generally, the court must justify closure of voir dire as a “strict and inescapable necessity.” Commonwealth v. Johnson, 455 A.2d 654, 662 (Pa. Super. 1982). However, a court “may impose restrictions to maintain the integrity of the proceedings in the courtroom” so long as “the basic guarantees of fairness are preserved such as by the presence of the press and the making of a record for later review.” Berrigan, 501 A.2d at 232-234 (affirming trial court’s exclusion of members of the general public from voir dire proceedings). Thus, a court may elect to conduct voir dire in a room separate from the main courtroom as a way to “efficiently utilize judicial resources” without violating access rights, provided that the court does not explicitly prohibit any member of the public from observing the voir dire. See Commonwealth v. Harris, 703 A.2d 441, 445-46 (Pa. 1997). The trial court may not deny the public access to voir dire for fear of juror intimidation unless it specifically finds that the presence of the public would result in intimidation. See Johnson, 455 A.2d at 662-63. However, even if the court determines that the release of the names of potential jurors is likely to result in outside intimidation, the most effective way to protect them is through sequestration. See Commonwealth v. Genovese, 487 A.2d 364, 368 (Pa. Super. 1985).

The Pennsylvania Supreme Court has held that voir dire transcripts are public judicial records. Harris, 703 A.2d at 445-46. Therefore, the transcripts are presumptively open to the public and the press.

A Pennsylvania statute provides the names and addresses for persons assigned to a jury array (i.e., a pool from which prospective jurors are selected to serve on a jury) shall be made publicly available at the Pennsylvania office of the jury selection commission “no later than 30 days prior to the first date on which the array is to serve.” 42 Pa. Cons. Stat. § 4524.

The Rhode Island Supreme Court addressed access to voir dire examination in Providence Journal Co. v. Superior Court, 593 A.2d 446, 449 (R.I. 1991).  In that case the Court addressed the closure of the trial court during the individual voir dire examinations of prospective jurors.  Id. at 448.  The Court held that the right of the press and the public to attend voir dire is implied in the First Amendment's ‘core purpose’ of assuring free and open public discussion” and “has been specifically interpreted as including the right of access to the voir dire examination of prospective jurors in a criminal trial.”  Id. (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); United States v. Peters, 754 F.2d 753, 758 (7th Cir. 1985)).  Therefore the Court held that such closures require “balancing . . . the defendant’s Sixth Amendment right to a fair trial against the press and public’s First Amendment right of access.”  Id.  The Court then applied the balancing test established in State v. Cianci, which requires that “any closure ‘(1) must be narrowly tailored to serve the interests sought to be protected, (2) must be the only reasonable alternative, (3) must permit access to those parts of the record not deemed sensitive, and (4) must be accompanied by the trial justice’s specific findings explaining the necessity for the order.’”  Id. at 449 (quoting State v. Cianci, 496 A.2d 139, 144 (R.I. 1985)).  The Court concluded that the trial court failed to consider the four-part inquiry in Cianci, and that therefore closing the courtroom for voir dire “may have been an unconstitutional infringement on the press and public’s right of access to criminal proceedings.”  Id. at 449.  Though this holding was technical—since the trial court utterly failed to consider the appropriate standard—the Court suggested that “[t]he better practice is . . . , rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys,” or “making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.”  Id. at 449-50 (quoting In re Dallas Morning News Co., 916 F.2d 205, 206-07 (5th Cir. 1990); Press-Enterprise Co., 464 U.S. at 510–11).

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).

The same rules that apply to access to criminal and civil proceedings apply to voir dire.  See King v. Jowers, 12 S.W.3d 410, 411-12 (Tenn. 1999) (citing to State v. Drake, 701 S.W.2d 604, 608 (Tenn. 1985), among others, in holding that closure of voir dire proceedings was improper).

[W]hen a closure or other restrictive order is sought, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Drake, 701 S.W. 2d at 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).

The public has a constitutional right of access to voir dire proceedings, subject only to “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”  Houston Chronicle Publ’g Co. v. Crapitto, 907 S.W.2d 99, 103, 105 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (quoting Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 510 (1984)) (collecting United States Supreme Court cases on the issue and permitting court access to voir dire proceedings).  Other Texas appellate courts have recognized a constitutional right of access to voir dire proceedings in the Sixth Amendment context, citing to U.S. Supreme Court First Amendment precedent.  See, e.g., Woods v. State, 383 S.W.3d 775, 779 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); In re A.J.S., 442 S.W.3d 562, 566–67 (Tex. App.—El Paso 2014, no pet.) (“The public trial right extends not only to the guilt-innocence phase of trial, but to voir dire as well.”) (citing Press-Enterprise, 464 U.S. at 505).

No Utah authority specifically addresses access to voir dire.

The Vermont Supreme Court has repeatedly recognized the “generally accepted practice as well as the public’s constitutional and common law right of access to court records and proceedings.”  State v. Tallman, 148 Vt. 465, 472, 537 A.2d 422, 427 (Vt. 1987); see also Herald Ass’n v. Ellison, 138 Vt. 529, 533-534, 419 A.2d 323, 326, (Vt. 1980) (noting that, in Vermont, public judicial proceedings are the rule and closed ones the exception); Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 505 (recognizing a First Amendment presumption of access to voir dire). Thus, voir dire proceedings are open to the public.

In Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501 (1984) (Press-Enterprise I), the United States Supreme Court held that the public has a qualified right of access under the First Amendment to jury selection.  The Virginia Supreme Court has never squarely held that the public’s qualified right of access extends to voir dire, but it has indicated its agreement with Press-Enterprise I. See Buchanan v. Commonwealth, 238 Va. 389, 400, 384 S.E.2d 757, 764 (1989) (holding that the trial court did not err in refusing to conduct closed voir dire and observing that doing so would have been fraught with problems of a constitutional nature.”) (citing Press-Enterprise I).  Furthermore, both the Virginia Code and the Rules of the Supreme Court of Virginia contemplate voir dire being public. See Va. Code § 8.01-358 (allowing parties to question the venire about potential prejudice and bias and providing that “A juror, knowing anything relative to a fact in issue, shall disclose the same in open court.”) (emphasis added). See also Va. Sup. Ct. R. 3A:14.1(a)(1) (allowing the trial court to restrict disclosure of juror identification information in criminal cases for good cause sufficient to a warrant departure from “the norm of open proceedings”) (emphasis added).

The Virginia Court of Appeals has held that the public has a constitutional right of access to voir dire. See In re Times-World Corp., 7 Va. App. 317, 327, 373 S.E.2d 474, 479 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 528 S.E.2d 458 (2000); see also In re Times-World Corp., 25 Va. App. 405, 413, 488 S.E.2d 677, 681 (Va. Ct. App. 1997) (citing Press-Enterprise I for the proposition that the public’s qualified right of access extends to voir dire).

The public right of access to criminal proceedings extends to voir dire.  See In re Personal Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004) (reversing conviction where trial court closed voir dire for reasons of space limitations and vague reference to security concerns).

One court has found that this presumption of access does not apply to individual questioning in chambers of a juror about alleged misconduct.  See State v. Halverson, 176 Wash. App. 972, 309 P.3d 795 (2013).

The United States Supreme Court has held that closure of voir dire is unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history.  Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984).

In Presley v. Georgia, 558 U.S. 209, 213 (2010), the Court reiterated that an accused has the right to insist that the voir dire remain open to the public, but there are exceptions to this rule. The Court, citing the Waller case, stated there are other rights or interests, “such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1984). The party seeking to close the hearing “must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 48.

In In re State Record Co., 917 F.2d 124, 128 (4th Cir. 1990), the court held that to protect a defendant’s right to a fair trial, a trial court can close pretrial proceedings to the press and/or public but only if the trial court can base this closure on a specific judicial finding that there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity, there is a substantial probability that closure would prevent that prejudice, and reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.

See State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 233, 340 N.W.2d 460 (Wis. 1983): “Looking then at the plain language of the statute [Wis. Stat. § 757.14], we conclude that it is the public policy of this state that a sitting of a court which encompasses the voir dire procedure is presumptively to be open to the public.”

Cf. State ex rel. Storer Broad. Co. v. Gorenstein, 131 Wis. 2d 342, 347–48, 388 N.W.2d 633 (Wis. App. 1986) (footnotes omitted):

It is clear that a trial court judge, in his or her discretion, may close the sitting of a court. Voir dire of a jury panel, although a pretrial proceeding, has been held to be a sitting of the court.  For a trial court to order closure, however, the reasons must be compelling, substantial, and “weighty and overwhelming.” Such reasons must be sufficient to overcome the presumption that a jury voir dire will be open to the public.

Voir dire is generally open unless a potential juror requests to meet privately with the court and counsel.