E. Minor testimony in non-juvenile courts

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982), the Supreme Court recognized a First Amendment right of access and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that a trial court "can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Id.

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–08 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Id. (footnotes omitted).

Under Globe Newspaper Co. v. Superior Court, the press and public have a presumptive right of access to a minor’s testimony during trial. 457 U.S. 596, 607-08 (1982). A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Id. at 608. A court will consider the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of the parents and relatives. Id.

In Waller v. Georgia, the Supreme Court set forth four factors to consider when a court determines whether closure of testimony is warranted. First, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; second, the closure must be no broader than necessary to protect that interest; third, the trial court must consider reasonable alternatives to closing the proceedings; and fourth, it must make findings adequate to support the closure. 467 U.S. 39 (1984).

In LaPlante v. Crosby, the Eleventh Circuit affirmed the state trial court’s closure of the courtroom during the testimony of the victim (a six-year-old child who had suffered sexual battery) based on an analysis of the four Waller factors. 133 F. App’x. 723, 725-726 (2005).

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–08 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure.  The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.”  Id. (footnotes omitted).

The Second Circuit generally follows the Supreme Court’s ruling in Globe Newspaper Co. v. Superior Court regarding the First Amendment allowing the press to publicize a minor’s testimony. 457 U.S. 596, 607-08 (1982). However, the Second Circuit has upheld the partial closing of the courtroom during a minor’s testimony: in United States v. Ledee, the Second Circuit held that the closure of the courtroom during a victim’s testimony to all persons not directly involved in the trial did not violate the defendant’s Sixth Amendment right to a public trial. 762 F.3d 224, 229 (2d Cir. 2014) (distinguishing its facts as not the general facts controlled by the Supreme Court’s ruling in Globe Newspaper Co. “but rather a tailored closure as applied to one eight-year-old sex-abuse victim (ten years old at the time of trial) under the circumstances of this case”).

In Globe Newspaper Co. v. Superior Court, the Supreme Court recognized a First Amendment right of access to criminal trials and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” 457 U.S. 596, 607–08 (1982). At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the

Mandatory closure during the testimony of minor victims of sex-offense crimes violates the public’s First Amendment right of access to criminal trials.  Whether a trial court should close the courtroom during minor testimony must be analyzed on a case-by-case basis in which the trial court weighs the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. See Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607 (1982); see also Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (order closing courtroom during minor’s testimony violated the defendant’s Sixth Amendment right to a public trial).

The Fifth Circuit has held that the goal of protecting the privacy interests and psychological well-being of a minor can be sufficient for closure, particularly if there is evidence that the minor has been suffering from emotional trauma. United States v. Hitt, 473 F.3d 146, 154 (5th Cir. 2006).

Partial closure of the courtroom for the testimony of a minor has also been upheld in the Fifth Circuit with a lesser standard of review. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). Partial closure (allowing some spectators in the courtroom) does not raise the same concerns that total closure raises since an audience remains to ensure the fairness of the proceedings. Therefore, for partial closure a court must only find a “substantial reason” for the closure. Id.

In a dissenting opinion, it has been noted that “[t]he Free Press Clause ensures that newspapers have access to criminal trials, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)—but not when publicity would cause psychological harm to a child witness, see Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608-09, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982).”  Kovacic v. Cuyahoga Cty. Dep’t of Children & Family Servs., 724 F.3d 687, 707 (6th Cir. 2013).

In U.S. ex rel. Morgan v. Lane, 705 F. Supp. 410 (N.D. Ill. 1989), habeas corpus petitioner convicted of raping a minor argued that excluding members of the general public from the courtroom during testimony of the juvenile witnesses violated his Sixth Amendment right to a public trial.  The district court rejected that argument, holding closure was consistent with the test articulated in Waller v. Georgia, 467 U.S. 39 (1984). “[S]afeguarding the physical and psychological well-being of a minor testifying in a rape case is a compelling state interest,” and “[t]he Seventh Circuit has stated that the exclusion of spectators during the testimony of an alleged rape victim is a frequent and accepted practice when the details of such crime must be related by a woman.”  705 F. Supp. at 414 (citing United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694 (7th Cir. 1977)). “[P]artial closure, limited to the testimony of the juvenile witnesses, was not broader than necessary,” and “[t]he trial court further lessened the impact of the closure by allowing interested persons, such as family and counselors, and the media to remain.”  Id.

Furthermore, the Victims’ Protection and Rights Act provides:

When a child testifies the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring the child to testify in open court would cause substantial psychological harm to the child or would result in the child’s inability to effectively communicate. Such an order shall be narrowly tailored to serve the Government’s specific compelling interest.

18 U.S.C. 3509(e).

“No case has specifically defined what constitutes ‘substantial psychological harm,’ but before the statute was enacted, the Supreme Court suggested that a district court should consider ‘the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives’ when determining whether to close the courtroom.”  United States v. Troup, 2012 WL 3818242, at *4 (N.D. Ind. Aug. 31, 2012) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608 (1982)) (holding government “discharged its burden with respect to the one child victim/witness,” but not with respect to the non-victim child witnesses).

Under Eighth Circuit case law, the fact that proceedings involve minors does not necessarily override the constitutional right of access or presumption of openness. The Eighth Circuit has ruled that closure of the courtroom in a child sex abuse case during testimony of allegedly abused children violated a defendant’s Sixth Amendment right to a public trial where the trial judge failed to hold a hearing or make any findings. United States v. Thunder, 438 F.3d 866 (8th Cir. 2006).

The Victims’ Protection and Rights Act states that: “[w]hen a child testifies the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case.” 18 U.S.C. § 3509(e) (2018). To make such an order, the court must determine that “requiring the child to testify in open court would cause substantial psychological harm to the child or would result in the child’s inability to effectively communicate.” Id.

Alaska courts have made clear that protecting the interests of minors who are witnesses is rarely if ever a sufficient reason to overcome the constitutional right to a public trial.  Probably the most significant case in this area is the Court of Appeals decision in Renkel v. State, 807 P.2d 1087, 1989 (Alaska Ct. App. 1991). In both Renkel and the subsequent case of Mitchell v. State, 818 P.2d 688, 689 (Alaska  Ct. App. 1991), the appeals court reversed the trial courts because they had totally closed the courtroom to the public during the testimony of children who were witnesses without making the findings necessary to justify such an order. “Despite the fundamental nature of the right to public trial and the vital function it still serves, it is well accepted that the right is not absolute . . . It may be limited by some other overriding interest.” Renkel v. State, 807 P.2d 1087, 1989 (Alaska Ct. App. 1991), (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982) and Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 581 n. 18 (1980)). The court in Renkel held, as a general rule, that “the broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether limited or complete, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interests to be protected by the closure.” Id. at 1091–92. When partially or totally closing the courtroom, the trial judge must make specific findings so that the record supports a legitimate reason for closure, consider alternatives before ordering closure, and fashion the closure order to be no broader than necessary. Id. at 1092. In a subsequent case, the Court of Appeals rejected a challenge to a conviction based on a courtroom closure, finding that in that case the trial judge had not excluded “all unnecessary people” from the courtroom during the testimony of a child witness, as had been requested, and instead only excluded one family member based on testimony at an evidentiary hearing about the effect of her presence on the child. The appeals court noted that the trial judge preserved the “public nature” of the trial and did make particularized findings, and that his order was limited to one person whom he excluded from the courtroom during the testimony of one witness. Brandon v. State, 839 P.2d 400, 413 (Alaska Ct. App. 1992).  While not rejecting what the judge did in this instance, the Court of Appeals observed that it might have been possible to do something different like restrict this person to the back of the courtroom. It noted that no one at trial argued for this less restrictive alternative, and added: “However, we would encourage trial courts to consider solutions short of excluding people from the courtroom if the court finds that a remedy short of exclusion is appropriate.”  Id. at n.11.  It may worth noting that there is no provision for excluding the press or public contained in the state’s criminal code section (referred to in Brandon) that details how to handle the testimony of children in criminal proceedings, and specifically in cases involving the prosecution of an offense committed against a child under the age of 16, or witnessed by a child under the age of 16.

It is arguable that the precise legal underpinnings of these holdings are not absolutely clear.  To the extent that federal law establishes a First Amendment right of access to judicial proceedings and records, that constitutional law is, of course, binding upon state courts under the Supremacy Clause.  And the Alaska Constitution can be interpreted to provide greater protection for First Amendment rights, but not less.  Accordingly, it should be argued that the results and holdings in these cases are required by the First Amendment, and by the analogous provision in the Alaska Constitution, art. I, sec. 5, despite any ambiguity on this score in the opinions. The main Alaska Supreme Court case dealing with public trials is a 1971 case having to do with the right to a public trial, and a jury trial, in juvenile delinquency cases. R.L.R. v. State, 487 P.2d 27, 35–38 (Alaska 1971). The constitutional public trial right recognized in that case was based on the provisions of the Sixth Amendment and its state constitutional analogue guaranteeing an accused person the right to a public trial. While this was the specific issue presented in that case, the Alaska Supreme Court in R.L.R. extensively discussed the important purposes served by enforcing a right to public trials, including “teach[ing] the spectators about their government and giv[ing] them confidence in their judicial remedies.” The R.L.R.court noted a diversity of opinion on the policy question but noted that “in both the federal and Alaska's constitutions, the right to public trial is part of a list of rights explicitly stated to be rights of the accused.” But this case was decided before Richmond Newspapers and its progeny established that there is a First Amendment right of the press and public to attend trials, and it did not expressly address this First Amendment question. Citing pre-Richmond federal authority it concluded, “thus the right of ‘public trial’ is not one belonging to the public, but one belonging to the accused,” Id. at 36 (quoting Justice Harlan’s concurring opinion in Estes v. Texas—which itself was later distinguished and superseded in the cases recognizing a First Amendment right of access to courts).

The other significant cases concerning public trials, or access to and exclusion from trial, have been decided in the state Court of Appeals, which in Alaska handles only criminal cases. These cases arose after the U.S. Supreme Court’s decision in Richmond Newspapers, and its progeny. See, e.g., Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980); 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); Press-Enterprise Co. v. Superior Ct. (“Press Enterprise II”), 478 U.S. 1 (1986). In particular, in Renkel v. State, 807 P.2d 1087, 1989 (Alaska Ct. App. 1991), the appellant claimed he had been improperly denied his right to a public trial as provided by the Sixth Amendment of the United States Constitution and article 1, section 11 (the analogous provision) of the Alaska Constitution.  But the Court of Appeals extensively discussed and clearly grounded its analysis on the case law establishing a First Amendment right of access by the press and public to judicial proceedings and records.  Id.  Citing federal cases including Richmond, Press-Enterprise, and Globe Newspaper Co., the appeals court states, “Although these cases arise from public access claims based on first amendment principles, we can derive much from their teachings on the deeply rooted nature of the public trial right in Anglo-American jurisprudence and the critical function that a public trial serves in the administration of justice today.”  Id. The court extensively discusses the constitutional right of access enunciated in these First Amendment cases.  It notes that “The function that a public trial serves has been eloquently detailed in the watershed case (Richmond Newspapers),” and that “‘one of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial.’”  Id.  And it summarizes this extension discussion of federal constitutional case lay by noting the “fundamental nature of the right to public trial and the vital function it serves.”  Id. at 1091.  Observing that the public trial right is not absolute, the court in Renkel elaborated: “The broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interest protected by the closure.” Id. at 1091–92.  In this case, the state conceded the unconstitutionality of the Alaska mandatory closure statute cited in the trial court, specifically on the basis of the U.S. Supreme Court’s First Amendment-based ruling in Globe Newspaper Co.  Id. at 1092. In determining that the closure could not be justified without relying on the unconstitutional statute, the appeals court noted that the general public, including the press, had been excluded during the testimony of three minor children.  “Except that a transcript could be made public upon request, it appears that none of the safeguards of an open trial were maintained.” The court found that this was a total closure that could be upheld only upon a showing of a compelling interest supported by findings in the record, and, citing Globe Newspaper Co., that even a partial closure had to be based on particularized findings.  Id.  The court also rejected arguments that “this fatal infirmity” could be “cured by a remand to the trial judge to allow him to make the necessary findings to conform to the dictates of Globe Newspaper Co.” Id. at 1093 (emphasis added).  The appeals court said it was “not unmindful of the tremendous emotional burden that children face while testifying in these particularly difficult cases.  Nonetheless, the clear holdings of [three US Supreme Court cases including] Globe Newspaper Co. . . . require case specific evidence to provide the special protection sought by the state.  Generalized subjective impressions cannot substitute.”  Id. at 1094 (emphasis added).  The Renkel court noted that the evidence presented in that case “could not provide facts sufficient to meet the requirements of Globe Newspaper Co.” Id. (emphasis added).

The appeals court also said it was unnecessary to deal with a claim by the appellant that his constitutional right to confrontation had been denied, among other reasons, “due to our conclusion that the deprivation of Renkel’s right to public trial mandates reversal.”  Id. at n. 7.  The only citation in Renkel to the Alaska Supreme Court’s decision in R.L.R. was for the proposition that the only available remedy was reversal, even in the absence of a specific claim of prejudice flowing from the closure, noting that the Court in R.L.R., which involved closing a juvenile criminal trial, had determined in that “where the right to public trial has been denied, no prejudice need be shown, since such a showing would be almost impossible to make.”  Id. And citing a New York state case, the Renkel court held, “Prejudice need not be proved because there is ‘no way to gauge the great, though intangible, societal loss that flows from the frustration of the goal of the public confidence which occurs when the courthouse doors are closed.”  Id. In summary, it cannot plausibly be argued that the Renkel court’s determination of “the fundamental nature of the right to an open courtroom and its clear violation in this case,” id., is not firmly grounded in the First Amendment-based rulings of Globe Newspapers, Press-Enterprise, and Richmond Newspapers. See also Bright v. State, 875 P.2d 100, 110 (Alaska Ct. App. 2004), discussed in detail the introductory section I.A above.

With respect to use of cameras or electronic devices to cover court proceedings, Alaska Admin. R. 50(a)(3)(C) provides that a minor may not be photographed, filmed, videotaped, sketched, or recorded, nor may the minor’s image or voice be broadcast, streamed, or posted on the internet, unless the minor is being prosecuted as an adult in a criminal case. Admin. Rule 50(b)(2) also authorizes the judicial officer presiding over proceedings, or the appellate clerk in cases in the appellate court, to impose the restrictions that “must be reasonably related and narrowly drawn by least restrictive means” and reasonably related to specified categories, one of which is protection of reasonable privacy interests of a minor. Otherwise however, the rules state that all court proceedings may be covered by the news media, including photographers and electronic media.

There is no explicit prohibition on public access to matters involving testimony by a minor.  As set forth in the other sections, however, a court may prohibit camera coverage to protect the best interest of a witness.  See Ariz. R. Sup. Ct. 122(d)(1) and (2).

The presumptive First Amendment right of access applies to ordinary civil and criminal court proceedings and records. See NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 980 P.2d 337, 86 Cal. Rptr. 2d 778 (1999). Accordingly, any restrictions on access, including access to proceedings involving minors, must meet constitutional requirements, including a showing of an overriding interest and narrow tailoring. See 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).

Colorado appellate courts have not addressed the public right of access to minor testimony in non-juvenile courts.

Note that no photography or electronic coverage of any kind is permissible in the United States District Court.  D. Conn. Local Civ. R. 83.11.

In federal civil proceedings to which a First Amendment right of access applies (which is most), “the Court must make particularized findings on the record demonstrating the need for [a courtroom closure], and any court closure order shall be narrowly tailored to serve the purpose of the closure.”  D. Conn. Local. Civ. R. 5(e)(1)(A).  In federal criminal proceedings, 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).

Bars against identifying anyone in a public proceeding would be analyzed as a gag order: gag orders on anyone are governed by the First Amendment’s generally applicable speech protections, and would need to meet the most stringent standards, i.e., that the speech restriction (1) furthered a compelling government interest and (2) was the least restrictive means of meeting that interest.  E.g., Beal v. Stern, 184 F.3d 117, 124–25 (2d Cir. 1999).  That standard is unlikely to be met outside of sitting jurors and judges, and those witnesses who will testify to information that would qualify for courtroom closure (for example, the identity of a confidential informant, or a corporation’s internal assessment of its competitive weaknesses).  The standard will never be met as applied to information that the trial participant learned through public documents or proceedings in an open courtroom, since anyone could have learned the same information.  See Oklahoma Publ’g Co. v. District Court, 430 U.S. 308, 311 (1977).  The rules differ significantly in state family court, where the public is not allowed, and participants are barred from revealing certain information.  See also State v. Sheppard, 182 Conn. 412 (Conn. 1980)(holding that trial court erred by excluding general public other than the press from testimony of juvenile witness in rape prosecution).

Section 918.16, Florida Statutes, provides for only limited access to courtrooms when a person under 16 years of age or a person with an intellectual disability, including mental retardation, testifies concerning any sex offense. Fla. Stat. § 918.16(1). Similarly, when the victim of a sex offense, regardless of age or mental faculties, testifies regarding the offense, Section 918.16 provides for limited access to the proceeding. Fla. Stat. § 918.16(2). Newspaper and broadcast reporters are included among those permitted to attend. Fla. Stat. § 918.16(1)-(2).

However, there is dispute among the appellate courts in Florida over how this statute interacts with the First and Sixth Amendment rights of access and a public trial, respectively. Initially, two of the five district courts have held that application of the test for closure enunciated in the U.S. Supreme Court’s Waller v. Georgia decision is required even when the court is only ordering the partial closure described in Section 918.16. Alonso v. State, 821 So. 2d 423, 426 (Fla. 3d DCA 2002), disapproved by Kovaleski v. State, 103 So.3d 859 (Fla. 2012); Pritchett v. State, 566 So. 2d 6, 7 (Fla. 2d DCA 1990). The other three districts do not require application of the Waller test for partial closures, only for full closures. Kovaleski v. State, 1 So. 3d 254, 258 (Fla. 4th DCA 2009), aff’d 103 So.3d 859 (Fla. 2012); Hobbs v. State, 820 So. 2d 347, 349 (Fla. 1st DCA 2002); Clements v. State, 742 So. 2d 338, 341 (Fla. 5th DCA 1999). However, recently, a First District Court of Appeal panel applied the balancing test when allowing media access to a criminal voir dire. Morris Publ’g Grp., LLC v. State, 136 So.3d 770, 779-80 (Fla. 1st DCA 2014).  

Nonetheless, even in the Third District where the Waller test must generally be applied, if the Court permits contemporaneous access via a television monitor to the testimony in question, the Waller test need not be applied. Lena v. State, 901 So. 2d 227, 230–31 (Fla. 3d DCA 2005).

Consistent with Globe Newspapers v. Superior Court, 457 U.S. 596, the Georgia Supreme Court has held that a trial judge can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Florida Publ’g Co. v. Morgan, 253 Ga. 467 (1984).  However, Georgia courts have not hesitated to rectify closures not meeting this standard.  See, e.g., Altman v. Altman, 301 Ga. 211, 217–18 (2017) (trial court’s conclusory findings that the transcript of in-chambers interviews of children in a divorce matter is “of a nature that [is] protected and privileged from disclosure as public record” and that there has been “good cause shown” are insufficient to support a restriction on public access to court records); Spikes v. State of Georgia, 353 Ga. App. 454, (2020) (finding that trial court’s decision invoking O.C.G.A. § 17-8-54 (requiring closure when any person under the age of 16 is testifying concerning any sexual offense) to justify closure of courtroom during minor’s testimony despite defendant’s objection did not comply with constitutional requirements because the trial court made no findings adequate to support closure, and did not consider reasonable alternatives); Jackson v. State, 339 Ga. App. 313 (2016) (reversing aggravated child molestation convictions of defendant where trial court failed to make findings adequate to support its closure of courtroom during testimony of defendant’s stepdaughter).

Idaho courts have not addressed this.

Trial records are open to public access unless Administrative Rule 9(G) excludes them. Ind. Admin. Rule 9(D)(1). There is no statutory or case law on this issue, so minor testimony in non-juvenile courts is presumably publicly accessible.

In order to protect a minor “from trauma caused by testifying in the physical presence of the defendant where it would impair the minor’s ability to communicate,” a court may order that the testimony of the minor be taken in a room other than the courtroom and be televised by closed-circuit equipment for viewing in the courtroom only “upon a specific finding by the court that such measures are necessary to protect the minor from trauma.” Iowa Code § 915.38 (2018). General testimony stating that requiring a child victim to testify in front of defendant would be “very distressful” and would cause the child to regress is not sufficient to allow the testimony of an alleged victim of child endangerment to be made via closed circuit television. State v. Richards, 752 N.W.2d 453 (table), 2008 WL 2042615 (Iowa Ct. App. 2008). This manner of questioning a minor does not violate the defendant’s right to confrontation of his accuser where the court has first found this procedure is necessary “to further the important State interest of protecting the child witness.” State v. Cuevas, 776 N.W.2d 302 (Table), 2009 WL 3337606 (Iowa Ct. App. 2009); State v. McDonnell, 771 N.W.2d 653 (Table), 2009 WL 1492839 (Iowa Ct. App. 2009). The court has held this because “Iowa Code section 915.38 sets forth a procedure that ensures the reliability of the evidence by subjecting it to rigorous adversarial testing that preserves the essence of effective confrontation.” State v. Hicks, 863 N.W.2d 36 (Table), 2015 WL 1046130 (Iowa Ct. App. 2015).

In addition to the protections afforded minors by the Iowa Code, courts will apply the Waller v. Georgia criteria for the total closing of a trial to determine whether alternative measures utilized to protect minor witnesses amount to a closure of the court. State v. Schultzen, 522 N.W.2d 833, 835-36 (Iowa 1994) (citing Waller v. Georgia, 467 U.S. 39, 48 (1984) (Waller requires: “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 proceedings; and 4. the trial court must make findings adequate to support the closure.”). In State v. Schultzen, the Iowa Supreme Court held that screening off a minor witness from certain spectators was a reasonable alternative to closing the proceeding because it was less restrictive than the remedy allowed by statute. State v. Schultzen, 522 N.W.2d 833, 835–36 (Iowa 1994).

The court may also order that the testimony of a minor be taken by recorded deposition for use at trial, pursuant to Iowa Rule of Criminal Procedure 2.13(2)(b). Iowa Code § 915.38 (2018). “Only the judge, parties, counsel, persons necessary to record the deposition . . . may be present in the room with the child during the child’s deposition.” Iowa R. Crim. P. 2.13(2)(b). The court may also, on motion and hearing, and upon a finding that the minor is unavailable, order the videotaping of the minor’s testimony for viewing in the courtroom by the court. Iowa Code § 915.38 (2018).

Kansas allows victims of crime under 13 years of age to testify in court via closed-circuit television or a video recording.  K.S.A. 22-3434.  To qualify a minor to give televised or video-recorded testimony, “The state must establish by clear and convincing evidence that to require the child who is the alleged victim to testify in open court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify.”  K.S.A. 22-3434(b).  When the child is before a camera giving testimony, no one may be present in the room except for the defendant’s attorneys, the prosecution, the equipment operators, and “any person whose presence would contribute to the welfare and well-being of the child.”  K.S.A. 22-3434(c)(1).

Kansas Supreme Court Rule 1001 on media coverage of court proceedings includes restrictions on photographing or recording crime victims, witnesses and juveniles.  See “Cameras and other technology in the courtroom” section below, and Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.

The Kentucky Supreme Court has held that an adult criminal trial should be open to the public, even during the testimony of minor victims of charged sexual crime.  Lexington Herald Leader Co. v. Tackett, 601 S.W. 2d 905 (Ky. 1980).

In State v. Fletcher, 537 So.2d 805 (La. App. 1989), the Court of Appeal held that, to justify closing a hearing involving sexual molestation of a minor, “the State must present evidence and demonstrate, and the court must find, that there is a ‘substantial probability’ that the minor victim of sexual conduct will suffer either or both physical and psychological detriment or damage from testifying in open court before the press and the public . . . [and] that reasonable alternatives to closure would not adequately protect against incremental injury to the minor victim.” Id. at 807.

In an aggravated rape case, the court cleared the courtroom of spectators, but allowed the news media to remain, when the victims, the young stepdaughters of the defendant, were testifying. The Court of Appeal concluded that this “did not violate the defendant’s constitutional right to a public trial since [the court] did not exclude the media and other essential parties.” State v. Loyden, 899 So.2d 166 (La. App. 2005).

In general, minor testimony in non-juvenile courts is public.  See Cameras and Audio Recording in the Courtroom, Admin. Order JB-05-15 § I(A).

Similarly, the Maryland Court of Appeals has held that closing the courtroom during the testimony of a 14-year-old alleged sexual abuse victim violated the defendant’s Sixth Amendment rights. Carter v. State, 738 A.2d 871, 880–81 (Md. 1999). The court emphasized that while the trial judge has the power to close the courtroom under such circumstances, the judge must provide case-specific findings justifying such an order. Id. at 876–78. The court also suggested that the judge considering a motion to close the courtroom during a sexual abuse trial should hold an evidentiary hearing and may not simply rely on a proffer from the prosecution. Id.

See George W. Prescott Pub. Co. v. Stoughton Div., 701 N.E.2d 307, 309 (Mass. 1998) (court order limiting reporting on public proceedings involving juvenile witnesses was an unlawful prior restraint; there is an “especially high burden of justification” for limiting press reporting where proceedings and records are open to the public).

Michigan courts follow Supreme Court precedent in determining whether to close a proceeding when a juvenile is testifying. The courts look to whether there is an overriding interest to preserve higher values and whether the closure is narrowly tailored to serve that interest. People v. Kline, 197 Mich. App. 165, 169 (1992) (quoting Press Enterprise Co. v. Superior Court of Cal., Riverside Co., 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984)). However, in cases of a partial closure of a proceeding, a court need only provide a substantial, rather than compelling, reason to partially close a proceeding when a juvenile is testifying. See People v. Kline, 197 Mich. App. at 170. In order to ensure a partial closure is upheld, courts must note the reasons for the partial closure in the record. Id.

In Minnesota, trial courts are authorized to close courtrooms when minor victims testify regarding sex crimes committed against them. State v. McRae, 494 N.W.2d 252, 257 (Minn. 1992). Minnesota courts recognize that although there is a constitutional presumption of openness in criminal trials, “safeguarding the physical and psychological well-being of a minor [victim of a sex crime] is a compelling [interest]” sufficient to justify closure. State v. Delacruz, No. A03-129, 2004 Minn. App. LEXIS 104, at *5 (Minn. Ct. App. Feb. 3, 2004) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607–09 (1982)); see also State v. Fageroos, 531 N.W.2d 199, 202 (Minn. 1995) (stating that although the protection of minor victims of sexual offenses is a compelling interest that can be sufficient to justify closure in criminal trials, trial courts must still engage in a case-by-case determination).

Under Minnesota statutes, a trial judge may exclude the public from the courtroom during a minor victim’s testimony if doing so is necessary to protect the minor or to ensure the fairness of the trial, provided that the court gives the prosecutor, the defendant, and the public the opportunity to object to closure. Minn. Stat. § 631.045; see also Delacruz, 2004 Minn. App. LEXIS 104, at *5–6. Before closing the courtroom, the judge must specify the reasons that justify closure. Minn. Stat. § 631.045. Trial courts must determine on a case-by-case basis whether closure is necessary to protect minor victims and must consider several factors, including the nature of the crime, the wishes of the victim, the interests of parents and relatives, as well as the minor victim’s age, psychological maturity, and understanding. Fageroos, 531 N.W.2d at 202 (citing Globe Newspaper, 457 U.S. at 607-08).

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982), the Supreme Court recognized a First Amendment access right and struck down a statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial.” At the same time, the Court found that the interest in “safeguarding the physical and psychological well-being of a minor” can be a compelling one justifying closure. The Court ruled that “[a] trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Id. (footnotes omitted).

In Tillman v. State, 947 So.2d 993 (Miss. App. 2006), the Mississippi Court of Appeals held that the defendant's right to a public trial was not violated when the trial court excluded the public from the courtroom during testimony of a child sexual assault victim. The court recognized the sensitive nature of the testimony, the family dynamics, the emotional state of the child and the child’s age. Id. at 995. During the child’s testimony, the court was closed to everyone except necessary court personnel, the defendant, and the defendant's attorney. Id. Everyone else was allowed to return at conclusion of testimony. Id.

A court may close a portion of a proceeding if it determines the demands of individual privacy clearly exceed the merits of public disclosure.  A court will routinely close such proceedings when mental health evaluations of the juvenile are discussed.

Nevada has enacted the Uniform Child Witness Testimony by Alternative Methods Act, NRS § 50.500 et seq., which provides certain protections for child witnesses under the age of 14 years in criminal or noncriminal proceedings.  Additionally, in custody proceedings, Nev. R. Civ. P. 16.215 governs child witnesses.

Further, local court rules may limit or prohibit minors’ testimony or attendance.  For example, the Eighth Judicial District Court Rules governing Family Division Matters; Guardianship restricts minor children’s attendance and testimony as follows:

Rule 5.06.  Minor children; appearance at courthouse.  Unless authorized in advance by a judge, master, commissioner, Family Mediation Center (FMC) specialist or Court Appointed Special Advocate (CASA) representative, no minor child of the parties shall be brought to the courthouse for any court hearing, trial, CASA or FMC appointment which concerns that child or the child’s parents. In exceptional cases, the judge, master or commissioner may interview minor children in chambers outside the presence of counsel and the parties. Minor children will not be permitted to testify in open court unless the judge, master, or commissioner determines that the probative value of the child’s testimony substantially outweighs the potential harm to the child. The court may impose sanctions for a willful violation of this rule by either a litigant or counsel.

The right of access, discussed in “Overcoming a presumption of openness” above, applies to such testimony by a minor.

In New Mexico there appears to be no automatic right to all minor testimony. Whenever testimony is taken from the minor concerning his choice of custodian, the court shall hold a private hearing in his chambers. The judge shall have a court reporter in his chambers who shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is taken. NMSA 1978, § 40-4-9(C).​

In Herald Co, Inc. v. Mariani, 490 N.E.2d 539 (N.Y. 1985), the court held that a request for access to a juvenile rape victim’s preliminary hearing testimony must be addressed by Family Court, which could apply a traditional veil of confidentiality to juvenile proceedings.

In North Carolina, "a trial court may close proceedings to protect minors in certain situations, such as where a child is testifying about alleged abuse that child has suffered, or adoption proceedings." France v. France, 2011 WL 294051 at *8 (N.C. App. 2011). However, the state Court of Appeals has held that North Carolina case law does not "[support] the closing of an entire proceeding merely because some evidence relating to a minor child would be admitted." In France, the court held that "[i]n most instances, a proceeding will only be closed during the testimony of the minor child." Id. The trial court has discretion to decide whether any part of a proceeding should be closed to protect a minor child.

N.C.G.S. 15-166 provides, for instance, that "[i]n the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except officers of the court, the defendant, and those engaged in the trial of the case."

In State v. Robinson, 191 N.C. App. 612 (2008) (unpub'd opinion), the Court of Appeals applied N.C.G.S. 15-166 in upholding closure of a courtroom during a child rape victim's testimony, reasoning that "there was no general exclusion of the public or to the proceedings as a whole but a limited exclusion for the duration of a child's testimony." Id. at *4. Citing an earlier North Carolina Supreme Court case (see below), the court held that in applying N.C.G.S. 15-166, the trial court was follow the criteria set forth by the U.S. Supreme Court in Waller v. Georgia, 467 U.S. 39, 48 (1984): the court must (1) determine whether the party seeking closure has shown an overriding interest that is likely to be prejudiced if closure is not granted; (2) order closure no broader than necessary to protect that interest; (3) consider reasonable alternatives to closure; and (4) make adequate findings to support the closure granted. Note: An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted under certain state rules of appellate procedure.

In State v. Burney, 302 N.C. 529 (1981), the North Carolina Supreme Court upheld the exclusion of all but certain persons from the courtroom during the testimony of an alleged 7-year-old rape victim (also applying N.C.G.S. 15-166, supra). The court found it significant that "access to the courtroom was restricted to the members of identifiable groups for only a small segment of the overall proceeding," id. at 535, and concluded that "the delicate nature of child sex abuse . . . as well as the age of the child . . . [made] out a showing of an overriding interest to justify closure," (internal quotations and citations omitted), id. at 538.

Courts cannot close the courtroom during a minor’s testimony, unless the judge identifies, on the record, findings that support the decision to close the courtroom.  State v. Alexander, No. 03-CA-789, 2004 WL 2340039 (Ohio Ct. App. Oct. 18, 2004).

In Reeves v. State, 1991 OK CR 101, the court, discussing but distinguishing Globe Newspaper, approved the trial court’s limited closure of the proceedings during the testimony of minor victims of lewd molestation.  In Davis v. State, 1986 OK CR 148, 728 P.2d 846, the court upheld the trial court’s decision to close the courtroom during the testimony of a sixteen–year–old victim of rape.  The majority opinion in Davis did not cite Globe Newspaper; the dissenting judge did, arguing that the defendant had been denied a fair trial by the closure.  In Ynclan v. Woodward, 2010 OK 29, 237 P.3d 145, the court held that parents involved in child custody or visitation proceedings (and by unstated extension, the public and media) were not entitled to transcripts of in camera interviews of their children by the court.

In Oregon, First Amendment access rights are buttressed by article I, section 10 of the Oregon Constitution, which provides that “[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay . . . .” This provision has been interpreted not to provide an individual, waivable right, but instead to prescribe the functions of government. See Oregonian Publ’g Co. v. O’Leary, 303 Or. 297, 301-02, 736 P.2d 173, 175-76 (1987).

Oregon’s constitutional provision of access applies with equal force in juvenile proceedings. State ex rel Oregonian Publ’g Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980).

Under Pennsylvania law, in a prosecution involving a child victim of sexual or physical abuse, the name of the child victim shall not be disclosed by officers or employees of the court to the public, and any records revealing the name of the child victim shall not be open to public inspection, unless the court orders otherwise. Violation of this section is a misdemeanor of the second degree. 42 Pa. Cons. Stat. § 5988. This does not prohibit the press from publishing the name of the child victim; it only prohibits officers or employees of the court from disclosing the name of the child victim.

In any case in which a person has been charged with sexual assault of a minor and where the minor victim is seventeen years old or younger at the time of trial, the court may permit, upon a showing that such minor would be unable to testify “without suffering unreasonable and unnecessary mental or emotional harm,” that the minor testify in a location other than the courtroom.  R.I. Gen. Laws § 11-37-13.2(a).  In cases where the minor victim is fourteen years old or younger, there is a rebuttable presumption that the minor would be unable to testify “without suffering unreasonable and unnecessary mental or emotional harm.”  Id.  If the judge opts to hold the minor’s testimony in an alternate location, the testimony must be recorded for later showing before the court and/or the jury, or broadcast simultaneously to the courtroom.  Id.  “Only the judge, attorneys for the parties, persons necessary to operate the recording or broadcasting equipment, and any person whose presence would contribute to the welfare and well-being of the child may be present in the room with the child during his or her testimony.”  Id.

The Rhode Island Supreme Court has held that, save for the presumption that children under a certain age are per se unavailable to testify, this statute is generally constitutional.  See State v. Taylor, 562 A.2d 445, 453 (R.I. 1989).  The Court also clarified that suffering “unreasonable and unnecessary mental or emotional harm,” must mean that the child is “unavailable to testify” because they are unable to do so without suffering such harm, that this unavailability must be shown through clear and convincing evidence, and that most cases would require an attempt to have the child first testify in open court.  Id.  The Court has also ruled that this statute does not permit a judge to close the courtroom to facilitate a minor victim’s testimony, only to have the minor’s testimony held in a second location.  See State v. Barkmeyer, 949 A.2d 984, 1001-02 (R.I. 2008).

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.

“[A]uthorized representatives of the news media” are among those allowed access to minor’s testimony concerning sexual offense, unless the court determines otherwise. S.D. Codified Laws § 23A-24-6.

Under its cameras in the courtroom rule, the Tennessee Supreme Court has required that “[m]edia coverage of a witness, party, or victim who is a minor is prohibited in any judicial proceeding, except when a minor is being tried for a criminal offense as an adult.”  Tenn. Sup. Ct. R. 30C(1).

In San Antonio Express-News v. Roman, a Texas court of appeals determined that a court order barring the publication of the identities of minors who testified in a criminal trial was constitutionally invalid.  See 861 S.W.2d 265, 267–68 (Tex. App.—San Antonio 1993, orig. proceeding) (applying Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992)).  The court reasoned that, under the Supreme Court of Texas’s Davenport test, courts may only impose prior restraints upon evidence-based findings that “(1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.”  Id. at 267 (quoting Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 56 (Tex. 1992)).  As the juveniles in Roman had already testified in open court and had given their names during that testimony, that information was part of the public record.  See id. at 268.  Thus, the court concluded that there was “no constitutionally valid reason” to prohibit the press from dissemination the identities of minors under those facts.  Id.

The Utah Supreme Court has reversed a judgment of conviction, for violation of the defendant’s constitutional right to a public trial, where the trial court had closed the courtroom during the minor rape victim’s testimony “on the mere verbal assertion of the prosecutor that ‘[the witness] is extremely uptight, very nervous, very frightened . . . [a]nd I am afraid that she is going to be intimidated by them all [her family and the defendant’s family] probably,’” without “examin[ing] the witness to attempt to determine her capacity to testify in public, nor . . . mak[ing] any findings regarding the accuracy of the prosecutor’s assertions.” State v. Crowley, 766 P.2d 1069, 1071 (Utah 1988) (first and third alterations in original); see also Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 517, 524 (Utah 1984) (rejecting passing reference by prosecutor “to an interest ‘in the privacy and the well being’” of a minor sex-abuse victim in holding unconstitutional the trial court’s order closing preliminary hearing during her testimony without making any written findings supported by evidence); United States v. Galloway, 937 F.2d 542, 546 (10th Cir. 1991) (“The [United States] Supreme Court has made clear that a simple blanket rule mandating closure in all sex offense cases involving young victims violates the Constitution.” (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-08 (1982)).

The Vermont Rules of Evidence allow for videotaped or closed-circuit testimony by children age 12 or younger who are the alleged victims of specific sexual offenses.  See V.R.E. Rule 807 (allowing such testimony only upon a finding that testimony in court would present a substantial risk of trauma to the child, and that such trauma would substantially impair the ability of the child to testify).  The preference is, therefore, to allow for minor testimony under Rule 807, rather than closing a non-juvenile courtroom to the public.

“While exclusion is to be avoided under usual circumstances in light of the defendant’s right to a public trial, the court has discretion to weigh competing factors and tailor a limited exclusionary ruling to meet the exigencies of the moment.”  State v. Rusin, 153 Vt. 36, 40-41, 568 A.2d 403, 406 (Vt. 1989).  In cases involving young victims of sexual assault, for example, the Vermont Supreme Court has recognized that “[t]he exclusion of certain spectators is to be judged in light of the public trial guarantee, by the usual standard of discretion afforded the trial court under V.R.E. 611(a)(3) which requires the ‘court [to] exercise reasonable control over the mode . . . of interrogating witnesses . . . so as to . . . protect witnesses from harassment or  undue embarrassment.’”  Id. (citation omitted) (affirming trial court’s order excluding certain spectators who knew the child witness during her testimony).  The Court cautioned, however, “that exclusionary orders should be a rare exception and undertaken only as a last resort.”  Id.

In any criminal proceeding relating to a violation of the laws pertaining to kidnapping (§ 18.2-47 et seq.), criminal sexual assault (§ 18.2-61 et seq.) or family offenses pursuant to Article 4 (§ 18.2-362 et seq.) of Chapter 8 of Title 18.2 of the Virginia Code, or involving an alleged murder, under certain conditions, juvenile victims and juvenile witnesses may testify from a room outside the courtroom.  However, the child’s testimony shall be transmitted by closed-circuit television into the courtroom for the defendant, jury, judge and the public to view. See Va. Code § 18.2-67.9.

Similarly, in certain circumstances, a child may testify by closed circuit television in civil proceeding involving alleged abuse or neglect of a child, and the child’s testimony shall be transmitted into the courtroom for the public to view. See Va. Code § 63.2-1521(E).  These provisions apply mutatis mutandis to the testimony of certain minors in preliminary removal proceedings arising out of alleged abuse or neglect of the child. See Va. Code § 16.1-252(D).

The general rule is that court proceedings are open to the public, but when juveniles are involved, courts are required to keep confidential any recorded interview or any information provided by a juvenile within a court proceeding. These records shall not be opened unless ordered by a court for good cause or for purposes of appeal. W. Va. R. Child Abuse & Neglect Proc. 8(c), http://www.courtswv.gov/legal-community/court-rules/child-abuse/abuse-1-25.html#rule8; W. Va. Trial Ct. R. 18.03(a), http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule18; State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W. Va. 611, 619, 520 S.E.2d 186, 194 (1999).

Courts must issue a protective order before allowing access to recorded interviews, transcripts or related documents involving juveniles. W. Va. Trial Ct. R., 18.03 (b).  “This state recognizes a compelling public policy of protecting the confidentiality of juvenile information in all court proceedings.” State ex rel. Garden State Newspapers, 205 W. Va. at 619, 520 S.E.2d at 194.

See State v. Roders, 125 Wis. 2d 572, 373 N.W.2d 85 (Wis. App. 1985) (unpublished) (ruling that the trial court did not abuse its discretion when it denied the defendant’s request to exclude the parent of a minor victim from the courtroom during a criminal trial); see also State v. G.B., 204 Wis. 2d 108, 552 N.W.2d 897 (Ct. App. 1996) (unpublished).

Public access is allowed unless the court orders otherwise.