Aggressively Defending My Clients Since 1990


On Behalf of | Dec 30, 2016 | Firm News

“[H]istorically both civil and criminal trials have been presumptively open.”  Richmond Newspapers, Inc. v. Virginia448 U.S. 555580 n.17 (1980).  “As early as 1685, Sir John Hawles commented that open proceedings were necessary so “that truth may be discovered in civil as well as criminal matters. . . . The experience in the American Colonies was analogous. From the beginning, the norm was open trials.”  Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 386-87 n. 15 (1979) (emphasis added).  A celebrated dictum in a number of high court cases declares broadly that “[a] trial is a public event” and that “[w]hat transpires in the court room is public property.” Craig v. Harney 331 U.S. 367, 374 (1947); In re Oliver, 333 U.S. 257, 266, 272 (1948).  Today many courts recognize testimony in civil proceedings cannot be provided in private places but rather should be in open court with public access.  Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3rd Cir. 1984) (“the First Amendment does secure a right of access to civil proceedings”); Westmoreland v. CBS, 752 F.2d 16, 23 (2nd Cir. 1984) (“we agree with the Third Circuit in Publicker Industries … that the First Amendment does secure to the public and to the press a right of access to civil proceedings in accordance with the dicta of the Justices in Richmond Newspapers.

Open trials enhance the performance and accuracy of trial proceedings, educate the public, and serve a “therapeutic” value to the community.  Richmond Newspapers, Inc. v. Virginia448 U.S. at 569-573.  Critically, “there is no principled basis upon which a public right of access to judicial proceedings can be limited to criminal cases.”  Gannett Co., Inc. v. DePasquale, id.  Likewise, the public right to access is the same in a family law case as in an ordinary civil case.  In re Marriage of Burkle, 135 Cal.App.4th 1045 (2006) (The same First Amendment right of access applicable in “ordinary civil cases” applies in divorce proceedings.).

Justice Brennan’s concurring opinion in Richmond Newspapers, explains that there are historical and structural reasons to have public trials open to the public.  Historically, “public trials have been the essentially unwavering rule in ancestral England and in our own Nation.  Such abiding adherence to the principle of open trials ‘reflect[s] a profound judgment about the way in which law should be enforced and justice administered.’ ” Id., at p. 593. Citations and footnote omitted.  Structurally, open trials serve to demonstrate that justice is meted out fairly, thereby promoting public confidence in such governmental proceedings, id., at pp. 594-596, “[m]ore importantly,” open trials provide a means, “akin in purpose to the other checks and balances that infuse our system of government,” by which citizens scrutinize and “check” the use and possible abuse of judicial power, id., at p. 596; and finally, “with some limitations”, open trials serve to enhance the truth-finding function of the proceeding, id., at pp. 596-597. Justice Brennan concluded: “Popular attendance at trials, in sum, substantially furthers the particular public purposes of that critical judicial proceeding. In that sense, public access is an indispensable element of the trial process itself. Trial access, therefore, assumes structural importance in our ‘government of laws.'” Richmond Newspapers, 448 U.S. at 597, footnote omitted.  See also, Brown & Williamson Tobacco Corp. v. F.T.C. 710 F.2d 1165, 1179 (6th Cir. 1983) (secrecy in either the civil or criminal courtroom insulates the participants, masking impropriety, obscuring incompetence, and concealing corruption).