Your ability to watch court proceedings and get court records is governed by layers of laws, rules and customs that are often linked.
Unlike Oregon's open meetings law, for instance, most laws on court access cannot be found in one place. For those reasons, access to the courts can be particularly confusing for the press and the public.
For example, your access to state and federal courts in Oregon is controlled by:[1]
* The U.S. Constitution.
* Federal statutes, or laws made by Congress.
* Federal common law, or laws made by federal judges.
* Federal agency rules.
* The Oregon Constitution.
* Oregon statutes, or laws made by the state Legislature.
* Oregon common law, or laws made by state judges.
* Oregon court rules.
* Oregon agency rules.
* Local court rules
It gets even more complex. State and federal courts are separate, and they often make laws independent of each other.
But that's enough of the disclaimers. Some generalizations can be made about your ability to observe court proceedings and get court records.
In general, the law favors open courts
The Constitution of Oregon, the state's highest legal authority, calls for open judicial proceedings.[2]
The Constitution of Oregon
Article 1, Section 10
No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay...
Federal courts recognize general constitutional and common law rights for you to observe court proceedings.
But your right to see court records is not so explicit. In general, common law leans in favor of giving you access to records produced in open state and federal courts.[3]
However, judges can limit access to sensitive records.[4] The law favors privacy when courts deal with certain subjects, such as business secrets or sensitive family issues. In Oregon, for example, many records and proceedings are closed by statute when state courts handle adoptions, divorce, paternity suits and juvenile crimes.[5]
State courts and court records apparently are covered by Oregon's public records law. But the state Attorney General is unsure what kind of court documents are affected.[6]
Oregon's open meetings law does not cover court proceedings.[7]
Access rights tend to weaken the farther you get from open court proceedings. This is especially true for actions that take place outside the courtroom.[8] For example, judges can sometimes seal out-of-court settlements.
Finally, jury deliberations are secret.[9] Not even judges and attorneys know what takes place inside the jury room.
A test decides which proceedings are open
The U.S. Supreme Court devised a two-step test to help federal courts decide whether a criminal proceeding is open. This test, which came out of a case involving the Riverside (Calif.) Press-Enterprise, asks:[10]
1) Was the proceeding traditionally open to the public?
2) Does the presence of the public help the judicial process?
If the answer to both questions is "yes," then the law is weighted in favor of letting you see the proceeding.
However, this preference for open courts can be overcome, and proceedings and records can be closed if these three conditions are met: 11
1) There is a higher value at stake, such as a defendant's right to a fair trial.
2) The higher value would be harmed if the proceedings or records remain open.
3) There are no effective alternatives to closing court proceedings or records.
Courts: A step-by-step guide
I. Criminal proceedings and records
A) Before trial.
Two U.S. Supreme Court rulings resulted in the law favoring a right of access under the First Amendment to:[12]
* Pretrial hearings and hearing transcripts.
* Voir dire proceedings, where the court questions prospective jurors.
Courts have also found a general First Amendment right of access to:[13]
* Motions, where the court is asked to make a ruling.
* Briefs, or written arguments filed with the court.
* Evidence admitted in open court.
* Plea agreements in federal court.[14]
Example: A Portland high school student with a lavish lifestyle was indicted in U.S. District Court on federal drug and firearms charges. He entered a plea agreement, which the court sealed at his request. But The Oregonian challenged that decision. The Ninth U.S. Circuit Court of Appeals used the Press-Enterprise test for court proceedings to review the lower court's decision to seal the document. Among the appellate court's findings: Plea agreements are traditionally open, and public access helps keep proceedings fair. The appellate court ordered the documents released.
See: The Oregonian Publishing Co. v. U.S. District Court for the District of Oregon, 920 F.2d 1462 (9th Cir. 1990)
Still, some pretrial jury proceedings and records are confidential. In state courts:
* The list of names and addresses of potential jurors can be confidential.[15]
* Grand juries work in private.[16]
* If a defendant has not been held for questioning, you cannot see a grand jury's indictment until the defendant is arrested.[17]
Some pretrial records in state court are confidential by statute. Those records are:
* Police requests for permission to electronically eavesdrop on someone. Recorded conversations are sealed by the court.[18]
* Some results of drug tests on defendants.[19]
* A defendant's request for a court-appointed attorney, including his or her proof of indigence.[20]
An Oregon statute says judges must consider a search warrant application with a "secrecy appropriate to the circumstances."[21] An application consists of a proposed warrant and at least one affidavit that gives the factual basis for the search. Only district attorneys and police can apply for warrants.
The warrant and the application become public the moment police "execute" the warrant. Warrants are executed when police either give a copy to a person in control of the property or attach a copy to the premises.[22]
B) During trial.
You have a right to attend criminal trials, and this right is based on the highest legal authorities: the U.S. Constitution and the Constitution of Oregon.
The U.S. Supreme Court in 1980 said the public has a First Amendment right to observe criminal trials.[23] Since then the Oregon Supreme Court has twice thrown out state laws that conflicted with the state constitution's ban on secret courts.[24]
Example: A key witness refused to testify during a murder trial in Clackamas County. So the court used a state statute that forced the witness to testify in a closed courtroom. Among those excluded was a reporter for The Oregonian, which sued on the ground that the closed court was unconstitutional. The state Supreme Court agreed. It said the forced testimony in a closed court violated the state constitution's command that "no court shall be secret."
See: Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 736 P.2d 173 (Or. 1987)'
On the other hand, the state Supreme Court has allowed state court proceedings that were traditionally closed to the public to stay that way. More specifically:[25]
* Jury deliberations are secret.
* Court conferences between judges and attorneys are confidential.
Finally, state judges have the right to restrict courtroom access to prevent overcrowding and disruptions.[26]
C) After trial.
If a state court convicts someone, the judge will get a presentence report on the person's background to help decide the sentence. Those reports are secret by state statute. However, some of the report can be disclosed by the judge when he or she explains the sentence.[27]
II. Civil proceedings and records
A) Some specific restrictions
State statutes make it difficult or impossible for you to see civil proceedings and get records associated with some sensitive family issues. For example:
* State courts can keep secret the names and addresses of petitioners in adoption proceedings if it is in the child's best interests.[28]
* Records of adoption proceedings are filed separately from other court records and cannot be made public without a court order.[29]
* All hearings and records associated with court-ordered marriage counseling are closed.[30]
* All proceedings and records associated with court-ordered mediation in child-custody and visitation disputes are confidential.[31]
* Records of paternity cases are filed separately and cannot be made public without a court order.[32]
State statutes also require attorneys to file a report with the court on the outcome of personal injury and wrongful death lawsuits. Those reports are confidential.[33]
Trade secrets and other sensitive business records can be sealed by the Oregon Tax Court at the request of a litigant. But the court must weigh the harm that publicity would cause the business against the public interest in disclosure.[34]
B) Before trial.
Settlement agreements. The vast majority of civil suits are settled before going to trial. Often those settlements are sealed by judges at the request of those involved in the lawsuits. Judges have some leeway in deciding whether a settlement should be secret. In general, judges must weigh the common law tradition of open courts against the litigants' interests in confidentiality.[35]
Secret settlements have been controversial, especially in cases where sealed documents held information that affected the public.[36]As a result, some states have limited the ability of courts to seal settlements.[37]
In Oregon, state and local governments, and their employees, cannot agree to secret settlements. However, a court can order a secret settlement with the government if the interest in protecting an individual's privacy outweighs the public interest in disclosure.[38]
Discovery. Once a lawsuit is filed, the opposing parties prepare for trial by going through the legal procedure of getting potential evidence from each other. This process, called discovery, often involves interviews and requests for records.[39]
The U.S. Supreme Court says you do not have a constitutional right to information gathered by discovery.[40] The High Court also struck a blow against a common law right of access by saying pretrial depositions and interrogatories -- both legal tools used in discovery -- are not public phases of civil trials.[41]
However, state and federal court rules make it difficult for litigants to get the court's permission to make discovery secret.[42] In Oregon, judges can restrict your access to discovery proceedings and records if a litigant shows "good cause" for secrecy,[43] which means the reason must be substantial. The federal court rule is virtually identical.[44]
Example: A state judge can seal and reopen discovery materials. A man who was injured by an all-terrain vehicle sued the manufacturer in Multnomah County Circuit Court. The judge ordered both sides to keep large amounts of discovery materials secret. But public interest groups and a trial lawyers association wanted the information made public for consumer-safety reasons. After the man won a $5.5 million verdict, the groups persuaded the judge to lift the restriction.[45]
See: No. A8709-05897, Multnomah County Circuit Court
C) During trial.
You have a common law right to watch civil trials and see the records introduced in open court.[46] The U.S. Supreme Court also has recognized this country's tradition of open civil trials.[47]
A state statute gives judges the power to close a civil proceeding to the public if the litigants agree to a private session.[48] However, the statute is rarely used, and open civil proceedings are routine.[49]
As in criminal proceedings, jury deliberations are secret and court conferences between judges and attorneys are confidential.
D) After trial.
Common law is weighted in favor of letting you examine and copy records submitted in open court, but judges still have some say in the matter.
Separate rulings by the U.S. Supreme Court and the Oregon Supreme Court recognized a common law right of access to courtroom evidence. But the courts also said it is within the discretion of the trial judge to decide whether video and audio recordings introduced as evidence can be copied.[50]
Example: A defendant gave a videotaped deposition that was played in open court. After the trial, KOIN-TV asked to copy the videotape. But the judge rejected the request out of concern that broadcasting the recording would discourage others from giving videotaped depositions. KOIN took its case to the Oregon Supreme Court, which upheld the trial judge. The high court said KOIN had no constitutional right to copy the recording, and it was within the judge's discretion to limit the station's common law access.
See: State ex rel KOIN-TV Inc. v. Olsen, 300 Or. 392 (1985)
On a related subject, two circuit courts since 1988 have used video cameras instead of stenographers to record courtroom proceedings. Video trial records are used in the courtrooms of Marion County Circuit Judge Albin W. Norblad and Multnomah County Circuit Judge William C. Snouffer.[51]
This development is worth watching because an increasing number of courtrooms nationwide are using video equipment to record proceedings. However, there are no plans to install video equipment in other courtrooms in Oregon at any time soon.[52]
You have the same access rights to videotaped courtroom proceedings as you do to a written record, although there are some limitations. Multnomah County Circuit Court has no facilities for you to view a videotape, and Marion County Circuit Court rarely lets people watch a videotape on its equipment. 53
Both circuit courts sell copies of videotaped proceedings. Multnomah County Circuit Court provides copies for $20 each.
Marion County Circuit Court also charges $20 unless you ask for a copy before the trial begins; the court clerk will then make another videotape of the proceedings and charge you only $6.[54]
Courts: Juvenile courts
Juvenile courts in Oregon deal with youths less than 18 years old who are abandoned, dangerous, beyond the control of their families or under foster care. Juvenile courts also deal with youths who commit crimes, which is what usually gets the attention of the press.[55]
Special concerns for youthful offenders led to a tradition of secret proceedings and records in state juvenile courts. This secrecy was supposed to shield wayward youths from the stigma that comes with publicity. Privacy also was seen as a way to aid rehabilitation and keep reformed adults from being branded by their youthful mistakes.[56]
But the notion of private juvenile court proceedings conflicts with the tradition of open courts. Legal challenges have succeeded in making juvenile court proceedings more open in some states, including Oregon.[57]
Oregon law favors open juvenile courts
The Oregon Supreme Court in 1980 said the state constitution's ban on secret courts applies to juvenile court proceedings.[58] However, your constitutional right of access is not absolute. Court conferences and other proceedings that were traditionally private when the state constitution was written are still private. The state Supreme Court also said judges can restrict courtroom access to prevent overcrowding and disruptions.[59]
A state statute also gives judges the power to exclude parents and others from juvenile court proceedings if it would be "in the best interests of the child."[60]
Example: A 13-year-old girl was arrested in connection with the drowning of a younger child and appeared in juvenile court. The press was barred from the courtroom under a statute, since changed, that let the judge exclude the public except for those with "a proper interest in the case." But The Oregonian asked the state Supreme Court to open the proceeding. The Supreme Court said the statute violated the state constitution's ban on secret courts, and ordered the juvenile court to admit the press.
See: State ex rel Oregonian Publishing Co. v. Deiz, 289 Or 277 (1980)
Most juvenile court records are confidential
Contrary to the constitutional preference for open juvenile proceedings, most juvenile records are secret under state statute.[61] Only the court, the child, the child's family and the child's attorneys can see:
* Records of the child's juvenile court case.[62]
* Reports about the child's history and prognosis.[63]
However, state statutes permit the disclosure of specific information in juvenile court records. The following information is public:[64]
* The child's name.
* The reason why the child is in juvenile court.
* The time, date and place of juvenile court proceedings.
* The part of the juvenile court order that shows the legal outcome of the case.
Courts: Cameras in courtrooms
Cameras were banned in courtrooms for decades because of the behavior of press photographers during the sensational trial of the kidnapper of Charles and Anne Lindbergh's baby in 1935.[65]
But the judiciary gradually relented, and by the late 1970s the momentum swung in favor of allowing cameras in the courtroom under certain conditions. Thirty-four states kept cameras out of the courtroom in 1979; by 1993, only five states had blanket bans.[66]
A key court decision came in 1981, when the U.S. Supreme Court said photographic, radio and television coverage of a trial does not automatically deny a defendant's right to due process.[67] In the same case, the court said the U.S. Constitution does not prevent states from letting cameras into the courtroom.[68] But the court also said the press has no constitutional right to use cameras in courtrooms.[69]
In Oregon, the judge may allow cameras
Judges can decide whether to allow television cameras, video cameras, tape recorders and still cameras in the parts of the courthouse under their control.
Policies can vary from county to county. For example, cameras are not allowed inside a line of duct tape on the floor outside circuit court courtrooms in the Lane County Courthouse.[70] In neighboring Douglas County, cameras are allowed in courtrooms if the press meets certain conditions. For instance, the press must get permission to photograph or videotape the proceedings, and television cameras cannot be moved while court is in session.[71]
Judges must also abide by conditions in the Oregon Uniform Trial Court Rules, which are set forth here.[72]
A judge can deny your request to televise, photograph or record a proceeding if there is a "reasonable likelihood" that coverage would:[73]
* Interfere with a defendant's right to a fair trial.
* Affect the presentation of evidence.
* Affect the outcome of the trial.
* Detract from the decorum of the court.
* Interfere with courtroom efficiency.
Judges can reverse their decisions to allow tape recorders, television cameras video cameras and still cameras in the courtroom if they decide that:[74]
* You broke the court's rules for covering the trial.
* The coverage will affect the outcome of the case.
* The coverage will interfere with the rights of those taking part in the trial.
Even if a judge allows photographs and broadcast coverage of a trial, you need additional permission from the judge to photograph or record certain proceedings. They are:[75]
* Court recesses.
* Proceedings in the judge's chambers.
* Bench conferences between attorneys and the judge.
* Conferences between attorneys and their clients.
* Courtroom proceedings when the jury is out of the room.
Some courtroom proceedings and participants cannot be photographed or recorded under any circumstances. They are:[76]
* Proceedings dealing with sensitive family issues.
- Adoption proceedings.
- Child custody and visitation proceedings.
- Child support proceedings.
- Divorce proceedings.
- Juvenile proceedings.
- Paternity proceedings.
- Restraining orders in family abuse cases.
* Jurors.
- Voir dire, where attorneys question potential jurors.
- Any juror anywhere in the courthouse.
* Mental commitment proceedings.
* Sex crime trials, at the victim's request.
* Proceedings that involve trade secrets.
* Any other proceeding in which publicity would impair a fair trial.
Witnesses in trials can refuse to be televised, photographed or recorded. But they must tell the court before taking the stand. Judges can deny photographs or broadcasts of testimony if: 77
* The coverage would affect the right to a fair trial, the presentation of evidence or the outcome of the trial.
* The privacy and safety of the witness outweighs the interests in media coverage.
Oregon court rules also regulate cameras and recorders, as well as the people who operate them. For example:[78]
* Cameras and tape recorders must be inaudible.
* Television and video cameras must be stationary and unobtrusive.
* Artificial lighting is not allowed.
* Only one video camera and operator are allowed in a proceeding.
* Pool media coverage must be arranged by the media, not the court.
Finally, anyone photographing, televising or recording a courthouse event under the supervision of a judge must provide copies when requested. Courts do not have to pay for these copies. All other requesters must pay for the "actual copying expense."[79]
Federal courts tried courtroom cameras
The U.S. Judicial Conference, an agency that makes rules for most federal courts, held a three-year test on courtroom coverage that was to end June 30, 1994. In March 1994 the agency extended the test to the end of the year.[80]
Under the test, judges in selected federal courts could give the press permission to photograph, televise or tape record courtroom proceedings.[81]
However, none of the six district courts and two appellate courts that took part in the test was in Oregon. Nearby participants were the Western Washington District Court and the Ninth Circuit Court of Appeals in San Francisco, which hears Oregon cases.[82]
The Federal Judicial Center was expected to review the results of the pilot project, and a report on the experiment was expected to go to the Judicial Conference in September 1994.[83]
Whether federal courts will allow cameras in more courtrooms depends on the outcome of those reviews.[84]
How you can get other sources of information.
* Access to Judicial Records. This handbook explains public access to state and federal court records and proceedings. It is available for $2.50 from The Reporters Committee for Freedom of the Press in Washington, D.C. Telephone: (202) 466-6313.
* The Reporter and the Law, by Lyle Denniston. This 289-page book is available in a softcover edition from Columbia University Press. Denniston, a court reporter for The Baltimore Sun, talks about how the judicial system works and how to cover it.
* A Journalist's Primer on Locating Legal Documents. This 50-page pocket manual is a quick guide to getting a variety of documents, including court records. It is available for $2 from the American Bar Association in Chicago, Ill. Call the ABA Service Center at 1-800-285-2221.
* A Journalist's Primer on Federal Criminal Procedure. The American Bar Association in Chicago, Ill., will sell you this 32-page manual for $1.50. Call the ABA Service Center at 1-800-285-2221.
* A Journalist's Primer on Civil Procedure. This pocket manual gives an overview of civil procedure in state and federal courts. It is available from the American Bar Association in Chicago, Ill., for $3. Call the ABA Service Center at 1-800-285-2221.