D. Post-trial proceedings

The Supreme Court has not addressed the right of access to post-trial proceedings, though the U.S. Court of Appeals for the Ninth Circuit extended the presumption of access to post-trial proceedings and records because it saw “no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters. The primary justifications for access to criminal proceedings . . . apply with as much force to post-conviction proceedings as to the trial itself.” CBS, Inc. v. U.S. , 765 F.2d 823, 825 (9th Cir. 1985). Other appellate courts followed suit.

In United States v. Soussoudis, 807 F.2d 383, 389 (4th Cir. 1986), for example, the court 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.”

The Tenth Circuit has not definitively addressed whether the qualified constitutional right to attend criminal trials extends to post-trial proceedings. But see United States v. Gonzales, 150 F.3d 1246, 1257 n.15 (10th Cir. 1998) (noting another jurisdiction extended the right to post-trial proceedings).

The qualified constitutional right of the public and press to attend to criminal trials extends to post-trial proceedings. United States v. Ellis, 90 F.3d 447, 450 (11th Cir. 1996). The Eleventh Circuit will apply a "compelling interest" standard to determine whether a party can access the transcript, papers, and docket in relation to a post-trial settlement. Wilson v. Am. Motors Corp., 759 F.2d 1568, 1570-72 (11th Cir. 1985). The court will apply the same standard to the question of access to the transcript as well as to the issue of access to the court papers. Id.

No reported First Circuit cases identified.

A party seeking closure must also make a showing that there is a compelling interest to close post-trial proceedings.  See United States v. Doe, 356 Fed. App'x 488 (2d Cir. 2009). In Doe, the trial court refused to seal defendant’s sentencing hearing transcript. The Second Circuit affirmed, holding that the lower court correctly established that the public’s right of access imposes a high burden on the party moving to seal and requires four steps: (1) specific, on-the-record findings of "substantial probability of prejudice to a compelling interest”" that closure would prevent; (2) consideration of alternatives to closure; (3) balancing the risk of prejudice against First Amendment right of access; (4) ensuring closure is narrowly tailored to protect against prejudice.  See also United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) ("There is little doubt that the First Amendment right of access extends to sentencing proceedings.").

In United States v. Simone, the Third Circuit held that the First Amendment right of access extends to post-trial criminal proceedings. 14 F.3d 833, 839 (3d Cir. 1994).  There, the Third Circuit addressed a district court’s decision to grant the defendant’s post-trial “motion for in camera examination of the jury” to determine jury misconduct, and concluded that the First Amendment provides for a presumptive right to access such post-trial hearings.  Id. at 840.  The court’s reasoning in Simone suggests that its holding likely extends to all post trial proceedings:  “On a broad level, we see no reason to suspect that post-trial proceedings as a general category are any different with respect to the First Amendment right of access than the other components of a criminal trial.”  Id. at 839

The public has a First Amendment right of access to sentencing hearings. In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986). See also United States v. Shaffer, No. 2:21-CR-00076, 2021 WL 4255617, *2 (S.D.W. Va. Sept. 17, 2021) (“Courts addressing this issue consistently hold that sentencing memoranda should not be kept under seal because the documents are judicial records and, absent unusual circumstances, do not contain the type of information that typically outweighs the public's right of access.”).  Without conclusively deciding the issue, the Fourth Circuit has said that the public likely has a First Amendment right of access to a court order denying a sentence reduction. See United States v. Doe, 962 F.3d 139, 146 (4th Cir. 2020).

The “public and press have a First Amendment right of access to sentencing proceedings.” In re Hearst Newspapers, L.L.C., 641 F.3d 168, 176–77 (5th Cir. 2011). The Fifth Circuit reasoned that the rule especially makes sense in the context of a guilty plea. Id. at 177. Because a trial occurs in only a small fraction of criminal cases, it would not make sense to recognize public access for a trial but not to the sentencing phase. Id.

The Seventh Circuit has held that First Amendment protections attach to sentencing hearings, in particular, those portions of a sentencing hearing that involve a defendant’s motion for “downward departure,” reasoning that the “‘public has a strong First Amendment claim to access [ ] evidence admitted in a public sentencing hearing.’” United States v. Eppinger, 49 F.3d 1244, 1250-51, 1253 (7th Cir. 1995). The “public must have the opportunity to observe and criticize the judiciary in the operation of its duties. In sentencing, it is the distinct province of the court to determine what constitutes [a] proper sentence.” Id. at 1253 (citations omitted).  Cf. United States v. Corbitt, 879 F.2d 224, 229 (7th Cir. 1989) (“Whether or not the public and the press have a first amendment right of access to sentencing hearings, we must determine independently whether there is a right to disclosure of presentence reports submitted at such hearings”). See also United States v. Sonin, 167 F.Supp.3d 971, 978-79, 44 Media L. Rep. 1641 (E.D. Wis. 2016) (while “a First Amendment right of access attached to a portion of a sentencing hearing that involved the defendant’s cooperation with authorities,” media intervenor’s access right “must yield in this case to protect both the defendants’ privacy interests”—including possible retribution for their cooperation—“as well as the government’s interest in the disclosure of sensitive information[.]”  Moreover, “sealing only the portion of the sentencing hearings related to cooperation is narrowly tailored to protect the interests of the parties. . . . Following the closed portion of the hearings, the Court will sentence the defendants in open court and provide detailed reasons to support each sentence”).

The Eighth Circuit has extended the Sixth Amendment right to a public trial to sentencing hearings, though this right is not absolute. See United States v. Thompson, 713 F.3d 388 (8th Cir. 2013). This finding suggests that the Eighth Circuit would similarly recognize a First Amendment right of access to sentencing hearings since the court came to its conclusion after applying the same Press-Enterprise II test used to assess whether a First Amendment right of access exists. Id. at 393–94. The court concluded that such a right of access does exist, finding that sentencings have historically been open to the public and that public access plays a significant positive role in its functioning. Id.

We know of no statutory or case law authority relating specifically to public access to criminal post-trial proceedings; however, the presumption of openness under Rule 9.3(b) of the Alabama Rules of Criminal Procedure would apply.

The right of press and public access to judicial proceedings and records has been recognized as a matter of right under the First Amendment in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny, including Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise I”), 464 U.S. 501 (1984); and Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). This right has generally been applied to all stages of trial proceedings, including jury selection, and to pre-trial motion hearings. There is no apparent reason why post-trial proceedings would not be subject to this presumptive constitutional right of access. That constitutional law is, of course, binding upon state courts under the Supremacy Clause.  The Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Various court rules and statutes may specify restrictions on or exceptions to the presumptive constitutional right of access but would only be enforceable to the extent that they are not unconstitutional.

In addition to the general right of access to attend criminal trial proceedings, there is also a right to use cameras and electronic devices in doing so, in accordance with Alaska Administrative Rule 50.  This is addressed in detail in section XI.B below.

No reported decisions.

The United States Court of Appeals for the Eighth Circuit held that there is a Sixth Amendment right to insist on public access at sentencing hearings. U.S. v. Thompson, 713 F.3d 388, 393–94 (8th Cir. 2013). The court stated that it was clearly established that the public trial right extended beyond actual proof at trial and could be invoked by the press and the public under the First Amendment, or the accused under the Sixth Amendment. Id. at 392 (citing Waller v. Georgia, 467 U.S. 39, 45 (1984); Presley v. Georgia, 558 U.S. 209 (2010) (per curiam)).

In NBC Subsidiary (KNBC-TV) v. Superior Court, the California Supreme Court held that all “substantive” proceedings in California court are presumptively open. 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999).

Courts generally may close proceedings or seal records only if they hold a hearing and expressly find, on the record or in a written order, that sealing is warranted under the NBC Subsidiary four-factor test. 20 Cal. 4th at 1218. The parties’ agreement to seal is insufficient. See H.B. Fuller Co. v. Doe, 151 Cal. App. 4th 879, 891, 60 Cal. Rptr. 3d 501 (2007) (reversing sealing order based on parties’ stipulation). A temporary closure to maintain court security may be permissible. People v. Woodward, 4 Cal. 4th 376, 383-386, 841 P.2d 954, 14 Cal. Rptr. 2d 434 (1992). See also In re Marriage of Nicholas, 186 Cal. App. 4th 1566, 1568-1569, 113 Cal. Rptr. 3d 629 (2010) (constitutional right of access applies to family court cases; restrictions to protect children’s privacy must meet “overriding interest” standard); In re Marriage of Burkle, 135 Cal. App. 4th 1045, 1063, 37 Cal. Rptr. 3d 805 (2006) (same). But see Oiye v. Fox, 211 Cal. App. 4th 1036, 1068-70, 151 Cal. Rptr. 3d 65 (2012) (sealing medical records of alleged victim of sexual molestation).

Colorado case law is not well developed on the constitutional or common law right of access to post-trial criminal proceedings.

Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has stated that “[t]he press has, therefore, a fundamental right to attend any court proceeding, which is open to the public.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030–31 (Colo. 1979). The Star Journal case concerned pretrial proceedings, and the Court held that a “judge may close a pretrial hearing only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”  Id.; see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); see also Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (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).

State criminal proceedings are presumed open and may be closed to the public only if the court concludes that closure “is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding,” after the court “first consider[s] reasonable alternatives to” closure.  Conn. R. Super. Ct. § 42-49(c). Any order “shall be no broader than necessary to protect such overriding interest,” and the parties’ agreement that the court should be closed “shall not constitute a sufficient basis for the issuance of such an order.” Id.

In federal criminal proceedings—at any stage—the district court may order closure “only if it makes particularized findings on the record that closure is essential to preserve compelling interests, and that the closure is narrowly tailored to serve those interests.”  D. Conn. Local Crim. R. 57(b)(1)(A).

As a matter of first impression, a D.C. district court held that the public has a right to access filings in habeas corpus proceedings. In re Guantanamo Bay Detainee Litig., 624 F. Supp. 2d 27 (D.D.C. 2009). But the D.C. Circuit later held, “[i]n habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials.” Dhiab v. Trump, 852 F.3d 1087, 1093 (D.C. Cir. 2017). The court reasoned that this is because “there is no tradition of publicizing secret national security information.” Id. In Dhiab, a Guantanamo detainee and news media organizations as intervenors requested access during habeas proceedings to unredacted video showing the force-feeding of a detainee during a hunger strike. The D.C. Circuit reversed the district court’s finding of a qualified First Amendment right of access to sealed classified national security information. Id.

A district court found a First Amendment right of access to a report on prosecutorial misconduct during a criminal trial, filed in subsequent proceedings related to the alleged misconduct. In re Special Proceedings, 842 F. Supp. 2d 232, 242 (D.D.C. 2012). The court explained that the First Amendment right of access “serves an important function of monitoring prosecutorial or judicial misconduct.” Id. at 242 (quoting Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991)). Additionally, access to the report played a significant role in informing the public regarding criminal trials in general and the particular criminal trial in which the alleged misconduct occurred. Id. at 243–44.

A federal District Court in D.C. has recognized that “[t]he right of access is not limited to the criminal trial itself, but extends to many pre- and post-trial documents and proceedings.”  In re Special Proceedings, 842 F. Supp. 2d 232, 239 (D.D.C. 2012) (holding that court-commissioned report on prosecutorial misconduct during the trial of Ted Stevens would be released to the public).  The D.C. Court of Appeals has similarly suggested that the general right of access to criminal proceedings applies to post-trial proceedings as well.  Cf. Mokhiber v. Davis, 537 A.2d 1100, 1106 (D.C. 1988) (citing Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) while recognizing the right to access courts, and noting the case held that the “constitutional right of access applies to pretrial, trial, and post-trial proceedings”) (emphasis added)).

The Lewis test and procedural requirements are equally applicable to an attempted closure of a sentencing hearing. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1983); Palm Beach Newspapers Inc. v. Cook, 434 So. 2d 355, 358 (Fla. 4th DCA 1983). Similarly, closure of an arraignment and sentencing of a defendant who pled guilty must also be evaluated using the Lewis test. Palm Beach Newspapers, Inc. v. Nourse, 413 So. 2d 467, 469 (Fla. Dist. Ct. App. 1982).

In Georgia, all stages of criminal trials are presumed to be public, including post-trial proceedings. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578–79 (1982).

There are no reported Idaho decisions addressing access to post-trial proceedings.  It is presumed that any attempt to close such proceedings must follow the procedural and substantive requirements of Press-Enterprise.

In Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012), the Ninth Circuit reversed and remanded an Idaho District Court’s denial of a media coalition’s request for a preliminary injunction for access to all phases of the execution process in regards to a fast-approaching execution.  The initial 20 minutes of the execution process occurred behind a pulled curtain preventing all gathered witnesses from viewing the entire execution process.  Relying on Cal. First Amendment Coal. v. Woodford, 299 F.3d 868 (9th Cir. 2012), the media group argued that they had a Fist Amendment right to view the entire execution process.  The Ninth Circuit agreed, finding that First Amendment rights attached to the rights to view the process in its entirety.  Otter, 682 F.3d at 825–26.

The same standards and presumptions that apply to pretrial proceedings and criminal trials apply to post-trial proceedings. In People v. Caffey, 33 Media L. Rep. (BNA) 1149 (Ill. Cir. Ct. 2004), the court held that post-conviction petitions, motions, and amendments are part of the public record and subject to a presumption of public access. The court noted the history of openness of these sorts of proceedings and held that a party moving for nondisclosure must make the same sort of showing to overcome the presumption of access that must be made for other parts of criminal proceedings.

Indiana Code Section 5-14-2-2 provides that “[c]riminal proceedings are presumptively open to attendance by the general public.” Nothing in the statute indicates that “[c]riminal proceedings” does not include post-trial proceedings. See also Ind. Code § 35-38-9-10(i) (stating that expungement hearings are open).

The Indiana Constitution provides the accused in a criminal case the right to a public trial, which may include post-trial proceedings. Ind. Const. Art. 1 § 13. “In addition to the rights of the defendant, the public trial implicates the First Amendment right of the press and public to attend a criminal trial, or other proceeding.” Williams v. State, 690 N.E.2d 162, 167–68 (1997) (citations omitted) (emphasis added). But see State ex. rel. Post-Tribune Pub’g Co. v. Superior Ct., 412 N.E.2d 748, 750 (Ind. 1980) (“A ‘trial’ for [constitutional] purposes is considered to be the actual trial by jury upon the issue of guilt or innocence.”). In Post-Tribune Publishing, the Indiana Supreme Court took “the same stance” as the United States Supreme Court that the public and the press have a First Amendment right to access pre-trial proceedings. Post-Tribune Publ’g, 412 N.E.2d at 410. Indiana courts have not addressed whether there is also a First Amendment right to post-trial proceedings, but it is possible that they would apply the same analysis.

The Iowa Supreme Court has not decided whether the First Amendment right to access attaches to a post-trial hearing. State v. Knox, 464 N.W.2d 445, 447 n.1 (Iowa 1990) (noting that because the parties assumed that the First Amendment right of access attached to the post-trial proceeding, the Supreme Court did not make a determination in Knox). However, the court stated that it would apply the “experience and logic” test to determine if a right to access attaches to a certain proceeding. See id. (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605–06 (1982); Des Moines Register & Tribune Co. v. Iowa Dist. Ct., 426 N.W.2d 142 (1988)).

In 1980, in Stephens v. Van Arsdale, 608 P.2d 972, the Kansas Supreme Court concluded that the presumption of openness includes proceedings that follow a trial.  The state supreme court said that the public and the media “are free to attend the original trial or the sentencing hearing or any post-judgment hearings.”  Van Arsdale, 608 P.2d at 985.  The court said that open post-trial proceedings include a hearing before a judge on whether to expunge a defendant’s criminal conviction from court records.  Van Arsdale, 608 P.2d at 985.

In 1981, in Kansas City Star Co. v. Fossey, 630 P.2d 1176, when the Kansas Supreme Court adopted American Bar Association Standards on fair trials, it extended the presumption of openness “‘to every phase of judicial proceedings in a criminal case.’” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).

The right of access applies to post-trial proceedings in the same manner as pre-trial proceedings and trials.  Riley v. Gibson, 338 S.W.3d 230, 234 (Ky. 2011) (applying right of access to contempt hearing involving juror after conclusion of criminal trial).

The Louisiana Constitution’s Open Courts provision is not limited to trial or pre-trial matters. Article 1, § 22 states: “All courts shall be open.”

There should be no different standards for access to post-trial matters than for access to pre-trial hearings. See the “Pretrial Proceedings” section above.

No Maine cases address attempts to close post-trial proceedings.

Maryland courts have not had occasion to address whether the public right of access to criminal trials extends to post-trial proceedings. But see Baltimore Sun v. Thanos, 607 A.2d 565, 568 (Md. Ct. Spec. App. 1992) (First Amendment right of access to record admitted into evidence during penalty phase); Hearst Corp. v. State, 484 A.2d 292, 294–95 (Md. Ct. Spec. App. 1984) (“Simply because a trial may have reached a certain stage does not mean that First Amendment rights are greater or less than at any other stage.”).

There is a general presumption of openness to postverdict criminal proceedings. See Globe Newspaper Co. v. Commonwealth, 556 N.E.2d 356, 360 (Mass. 1990) (citing CBS, Inc. v. U.S. Dist. Ct., 765 F.2d 823, 825 (9th Cir.1985)) (“Although the Supreme Court has not ruled on the public’s right of access to postverdict proceedings, the principles expressed in the [caselaw] indicate that the public has a right of access to a hearing on a motion for a new trial and to any similar postconviction proceeding.”).

When considering whether a constitutional presumption of access applies to particular proceedings or records, Massachusetts courts apply the Press-Enterprise “logic and experience test” set forth above.

Neither the Michigan Supreme Court nor the Michigan Court of Appeals has directly addressed whether the First Amendment right of access attaches to post-trial proceedings. However, Michigan has applied the two-part test developed in Press-Enterprise Co. v. Superior Court (looking at whether there is an overriding interest to preserve higher values and whether the closure is narrowly tailored to serve that interest) to determine whether the right of access applies to a specific proceeding. See Detroit News, Inc. v. Recorder’s Court Judge, 509 N.W.2d 894, 896 (Mich. App. 1993).

To note: The Michigan Court system has added a webpage for Administrative Orders in regard to COVID-19, which can be found here. As of July 16, 2021, the following orders have been rescinded: Administrative Order Nos. 2020-1, 2020-6, 2020-9, 2020-13, 2020-14, 2020-19, and 2020-21, and Amendments of Rules 2.002, 2.107, 2.305, 2.407, 2.506, 2.621, 3.904, 6.006, 6.106, 6.425, 8.110, 9.112, 9.115, and 9.221 of the Michigan Court Rules and Administrative Order No. 2020-17 (moves several substantive provisions from most of the remaining pandemic-related administrative orders into court rule format).

Although Minnesota courts have not directly addressed whether the public and the press have a right to attend all post-trial proceedings in criminal cases, in Mankato Free Press Co. v. Dempsey, 581 N.W.2d 311, 312 (Minn. 1998), the Minnesota Supreme Court held that the press should be granted access to post-trial Schwartz hearings. In Minnesota courts, a Schwartz hearing is used when the parties dispute jury impartiality; during a Schwartz hearing, the jurors are examined on the record in the presence of counsel of all parties. Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301, 303 (Minn. 1960).

The Fifth Circuit has recognized a right of access to post-trial proceedings.  In re Hearst Newspapers, L.L.C., 641 F.3d 168, 176 (5th Cir. 2011) (“We conclude, as have the other courts that have considered this question, that the public and press have a First Amendment right of access to sentencing proceedings.”).

The Mississippi Supreme Court has likewise held that the press has a right of access to sentencing hearings. In re WLBT, Inc., 905 So. 2d 1196 (Miss. 2005).

There does not appear to be any Missouri case law addressing this. However, the U.S. Court of Appeals for the Eighth Circuit held in United States v. Thompson that the Sixth Amendment right to a public trial attaches at sentencing, although the court found that closure was warranted in that case to protect a witness’ safety. 713 F.3d 388, 394 (8th Cir. 2013) (recognizing “the First Amendment public trial access jurisprudence . . . and, most importantly . . . that public access at a sentencing hearing plays a significant positive role in its functioning and furthers the benefits sought to be afforded the accused under the Sixth Amendment”).

 

Implicit in the right-to-know provision of the Montana Constitution, is the citizens’ right to receive information about criminal proceedings.  This requirement of access to information about the criminal trial process should not be restricted except to extent that restrictions are required to protect the defendant's right to an impartial jury.  State ex rel. Missoulian v. Mont. Twenty-First Judicial Dist. Court, 281 Mont. 285, 933 P.2d 829 (1997).

No relevant authority.

The right of access granted by the state constitution and the common law applies to criminal proceedings, including post-trial proceedings. See “Access to criminal proceedings/In general” above; see also State v. Kibby, 170 N.H. 255 (2017) (after defendant pled guilty to seven indictments, presumption of openness applied to the record, all pleadings filed, and all orders issued involving the defendant’s correspondence with the court and his counsel’s motion to withdraw, including the correspondence itself).

The New Mexico courts have not addressed the right of access to post-trial proceedings, though pursuant to Rule 5-124 NMRA—which deems all courts of New Mexico open to the public save for those statutorily excluded—it appears that post-trial proceedings must be open. “This statute reflects the general premise that the courts operate in a forum of full disclosure, and barring exceptional circumstances, hearings in chambers are to be avoided.” N.M. Att'y Gen. Op. 72-34 (1972). Further, it is likely that the media must be provided notice of any attempt to limit their right to attend a post-trial hearing. See State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 20, 98 N.M. 261, 265, 648 P.2d 300, 304 (holding that the media must be provided notice of any attempt to limit their right to attend a hearing).

Given that the “the First Amendment right of access is not limited to the criminal trial itself,” courts have generally held that this right applies to post-trial proceedings as well.  Associated Press v. Bell, 70 N.Y.2d 32, 510 N.E.2d 313, 316 (1987).

For example, courts have held that parole revocation hearings should remain open to the public, “since those hearings deal with issues of crime and punishment which touch the lives of all citizens.”  Herald Co. v. Bd. of Parole of N.Y., 131 Misc. 2d 36, 45–46, 499 N.Y.S.2d 301, 308 (Sup. Ct. Onondaga Cty. 1985) (granting press access to parole revocation hearing), aff'd as modified, 125 A.D.2d 985, 510 N.Y.S.2d 382 (4th Dep’t 1986), aff'd, 125 A.D.2d 1015, 510 N.Y.S.2d 500 (4th Dep’t 1986).  In fact, the Herald court felt the policy reasons motivating press access prior to and during trial could be just as acute in post-trial proceedings:

Although respondents are correct in noting that parole revocation hearings are neither the equivalent of criminal trials nor post-trial proceedings as such, the cases dealing with the First Amendment right of access in the context of criminal trials are relevant to the present inquiry because much of the structural rationale underlying the decisions in those cases would apply . . . Despite the fact that there is no evidence that parole revocation hearings have historically been open to the public and press, access to the parole revocation process is “important in terms of that very process” (Richmond Newspapers, Inc., 448 U.S. at 589 [Brennan, J., concurring]). At a time when the merits of the parole process are being hotly debated, the “structural value of public access” (id. at 598) can scarcely be doubted. By opening parole revocation hearings to the public and press, the free, open, and informed discussion of the parole process would be furthered. The time has come for parole revocation hearings to be exposed to “the salutary scrutiny of the public and the press” (Press-Enterprise I, 464 U.S. at 521 [Marshall, J., concurring]).

Herald, 131 Misc. 2d at 45–46, 499 N.Y.S.2d at 308.

The public’s right of access is not overcome merely because the defendants are minors.  In Capital Newspapers Div. of Hearst Corp. v. Moynihan, the court upheld the right of the press to access sentencing proceedings, despite the fact that the defendants were minors.  71 N.Y.2d 263, 272, 519 N.E.2d 825, 830 (1988) (“We therefore conclude . . . the proceedings were presumptively open to the public, and that the trial courts acted improperly in closing them simply because they concerned youthful offenders.”).

There is no statute or case law in North Dakota disturbing or altering the overall policy of openness in North Dakota courts in the case of post-trial proceedings.

The right of access to court proceedings extends to sentencing hearings.  State v. Morris, 811 N.E.2d 577, 579 (Ohio Ct. App. 2004).  However, this right is not absolute, and the court may restrict access using the same analysis applied when considering closure of a hearing. Id. at 579–80.  See also Shifflet v. Thomson Newspapers, Inc., 431 N.E.2d 1014 (Ohio 1982) (expungement proceedings may be held in open court).

Post-trial proceedings are presumptively open.  Convictions have been affirmed and defendants’ claims that they were prejudiced by the presence of the media during sentencing have generally been rejected.  See Brennan v. State, 1988 OK CR 297, 766 P.2d 1385; Kennedy v. State, 1982 OK CR 11, 640 P.2d 971.

No Oregon court has specifically addressed access to post-trial proceedings. However, the Oregon Constitution provides a presumption of access unless the proceeding is not an adjudication, or where the proceeding was traditionally closed prior to the adoption of the Oregon Constitution. See Oregonian Publ’g Co. v. O’Leary, 303 Or. 297, 303, 736 P.2d 173, 177 (1987).

While Pennsylvania courts have not ruled on whether there is a right of access to post-trial proceedings, the Pennsylvania Superior Court held that there is a right of access to post-trial records: “Given the open nature of criminal trials, and sentencing proceedings in particular, we find that letters submitted to a sentencing court by defense counsel at the time of sentencing, which the sentencing court explicitly reviews in preparation for sentencing, are public judicial documents regardless of whether the sentencing court formally dockets the letters.” Commonwealth v. Martinez, 917 A.2d 856, 861-62 (Pa. Super. 2007); see also id. at 861 n.9 (acknowledging that the federal courts hold “that the public, and consequently the press, have a qualified First Amendment right of access to sentencing proceedings”); Commonwealth v. Dominick, 40 Pa. D. & C. 5th 347, 350-52 (Lackawanna Cty. C.C.P. Sept. 3, 2014) (citing Martinez for the proposition that letters to a sentencing court are public judicial documents even if not docketed.).

The Rhode Island Supreme Court has not directly addressed the right of access to post-trial proceedings.

However, looking to federal case law on the subject, which Rhode Island courts do when faced with a dearth of case law in the jurisdiction, the First Circuit has addressed public access to sentencing memoranda.  United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013).  There the court said that “[public] oversight serves several values when a court is called upon to exercise its discretion to impose a criminal sentence.”  Id. at 57 (citation omitted).

“Public access in this context may serve to ‘check any temptation that might be felt by either the prosecutor or the court . . . to seek or impose an arbitrary or disproportionate sentence, promote accurate fact-finding, and in general stimulate public confidence in the criminal justice system by permitting members of the public to observe that the defendant is justly sentenced.”

Id.  In granting a journalist access to documents filed under seal in a criminal case, the court also permitted access to sentencing memoranda under the rationale that “sentencing memoranda are judicial documents subject to the common law presumption of public access.”  Id.

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.

Tennessee courts have not specifically addressed whether the public right of access to criminal trials and pre-trial hearings extends to post-trial proceedings.  However, in State v. Drake, the Tennessee Supreme Court held that its ruling in that case “applied in Tennessee when a closure or other restrictive order is sought.”  701 S.W.2d 604, 608 (Tenn. 1985).

[T]he 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 608 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).  There is no reason to believe this rule would not apply in post-trial proceedings.

The Court of Criminal Appeals has accordingly determined that hearings associated with a postconviction petition for habeas corpus constitute proceedings which must be public, and closure of such proceedings is “[m]anifestly” contrary to Article 1.24 of the Texas Code of Criminal Procedure.  See Houston Chronicle Publ’g Co. v. McMaster, 598 S.W.2d 864, 866 (Tex. Crim. App. 1980) (en banc).  In addition to the statutory requirements that such proceedings be open, the McMaster court recognized, as a secondary public policy justification, that “[i]f the system failed [the defendant], it at once surely disserved the public. In demonstrating that failure before their very eyes, if he can, [the defendant] will provide the public with some information on which to base adjustment or reform in the criminal justice system.”  Id. at 867.

While not controlling over Texas state courts, federal precedent may be referenced as persuasive precedent where helpful when interpreting the Texas Constitution.  See Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992).  The Fifth Circuit has agreed with other federal Circuit Courts that the First Amendment protects the public’s right to access sentencing proceedings.  See In re Hearst Newspapers, L.L.C., 641 F.3d 168, 176 (5th Cir. 2011).  The Hearst Newspapers court considered a number of factors in support of its conclusion that the public has a right of access to these proceedings, including that sentencing hearings were historically open to the public and that public presence can serve as a check on impulsive sentencing decisions.  See id. at 177–86.

The general presumption in favor of the right of public access presumably applies equally to post-trial proceedings.  See, e.g., Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 518 (Utah 1984).

The Vermont Supreme Court has applied the two-part test developed by the United States Supreme Court for determining whether the First Amendment right of access to criminal proceedings attaches to a particular proceeding.  State v. LaBounty, 167 Vt. 25, 29, 702 A.2d 82, 85 (Vt. 1997) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)).  Under this test, the qualified right attaches if, first, “the place and process have historically been open to the press and general public,” and second, “public access plays a significant positive role in the functioning of the particular process in question.”  LaBounty, 167 Vt. at 29, 702 A.2d at 85.  Applying this test, the Vermont Supreme Court has held that “[p]ublic access to sentencing hearings, and to documents filed in connection therewith, plays an important role in the sentencing process.”  State v. Densmore, 160 Vt. 131, 136, 624 A.2d 1138, 1141 (Vt. 1993).

The Virginia Supreme Court has recognized the public’s presumptive right of access to judicial proceedings and records generally. See generally, Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 368 S.E.2d 253 (1988).  It follows that the right of access extends to post-trial proceedings and records, and the Virginia Supreme Court has suggested as much. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 628–29, 570 S.E.2d 809, 812 (2002) (observing that the public had not been denied access to post-trial proceedings).

The Virginia Court of Appeals has found a qualified constitutional right of access to hearings on post-trial motions to set aside a jury verdict. In re Times-World Corp., 7 Va. App. 317, 321-322, 373 S.E.2d 474, 476 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 610, 528 S.E.2d 458, 464 (2000).

The public’s right of access to court proceedings extends to all stages of criminal proceedings.  State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012).

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.

Post-trial proceedings are generally open in Wyoming under the standards set forth in Williams v. Stafford. Presentence investigations and reports are confidential.