holding that judicial records and *41 documents include “transcripts, evidence, pleadings, and other materials submitted by litigants” [emphasis added; internal quotation marks omitted]
How later courts described this case
- holding that judicial records and *41 documents include “transcripts, evidence, pleadings, and other materials submitted by litigants” [emphasis added; internal quotation marks omitted]
- holding that judicial records and documents include "transcripts, evidence, pleadings, and other materials submitted by litigants" [emphasis added; internal quotation marks omitted]
- noting that “[t]he common law right of access is not limited to evidence, but rather encompasses all ‘judicial records and documents’ ”
- strong presumption in favor of access applied to tape transcripts which were not introduced as evidence but were provided to the jury even though publicity from release would make it more difficult to impanel a fair and impartial jury for the remaining defendants
Written by the judges who cited it.
The opinion
SLOVITER, Circuit Judge,
dissenting.
My difference with the majority is not on the legal principles to be applied when representatives of the press seek access to tapes admitted into evidence and other material presented to the jury. We agree that the applicable principles are those articulated in United States v. Criden (Criden I), 648 F.2d 814 (3d Cir.1981). Instead, my principal difference with the majority lies with the standards by which we override the district court’s exercise of its discretion, an important jurisprudential issue that continually confronts appellate courts.
It is, of course, conceded that the question of access to evidence is committed to the discretion of the trial court. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 599 , 98 S.Ct. 1306, 1312 , 55 L.Ed.2d 570 (1978); Criden I, 648 F.2d at 817 . In reviewing the trial court’s exercise of its discretion, we must determine whether it considered the relevant factors and gave them appropriate weight. Id. at 819 . We must also, however, keep in mind “why that category or type of decision is committed to the trial court’s discretion in the first instance,” id. at 817 , since such an analysis informs the scope of review,
In this case, the trial court, as did the trial court in Criden I, clearly and succinctly expressed the basis for its decision denying release. The majority reads the decision of the trial court as based on three factors, but I believe we must accept the judge’s own statement that one factor, the rights of the defendants in the succeeding trial, was determinative. Although the trial court did remark on the non-evidentiary nature of the tape transcripts and on the contrast between the national dimension of the Abscam investigation at issue in Criden I and the local dimension of the police corruption at issue here, I find nothing to indicate that the trial court treated either of these as dispositive. The trial court accepted this court's standard established in Criden I that there is a strong presumption in favor of access to the materials at issue; it also recognized that “like Criden, this case is one of considerable public interest” and that “there is a legitimate public interest in the proceedings greater than that attendant to the usual criminal case.”
The trial court was explicit with regard to the one reason for denying access to the requested material at this time. It stated: “The factor on which I rely to deny the petitioners’ request is that of the defendants’ right to a fair trial.” (emphasis added). The court stated that the trial of the remaining eight defendants named in the same indictment was scheduled to begin on September 5,1984, and that “[t]he effect of broadcast of the audiotapes on the second trial scheduled to begin six weeks from today must be considered.” The court detailed the reason for its concern:
This case is one of considerable public interest and has been the subject of daily reports in area newspapers and on local television and radio since trial began. Members of the press attend the proceedings each day. The Philadelphia Inquirer began a four-part series on police corruption one week prior to the start of this trial. While it does not directly involve this case, it contains references to it and has placed the topic of police corruption in the public eye. Several of the individuals specifically named in the articles are unindicted co-conspirators in this case. Members of the FOP instituted a demonstration in front of the Inquirer building to voice their objections to the graphics used in connection with the story — a Philadelphia police badge with a dollar sign on it — thus resulting in more publicity the week prior to trial.
As a result of the pre-trial publicity in this case, it was necessary to question prospective jurors individually. Voir dire, which I conducted, took approxi *975 mately four days. A large proportion of the individuals questioned had been exposed to some type of publicity regarding this case and alleged police corruption. A not insubstantial number of those individuals stated they would have difficulty being fair and impartial because of their exposure to pre-trial publicity. Others were released despite their statements that they could be impartial because I was concerned about their ability to be fair in the light of other statements they made regarding what they had read or heard.
The second trial has been scheduled for many months and I am concerned about the rights of those defendants and the interest of the public in both a speedy and a fair trial. I believe that it would contravene the rights of the defendants and the public if a further continuance of this second trial is necessitated by publicity regarding the first trial.
The court concluded, “I believe that I must prohibit disclosure of the tapes and transcripts in order to enable the remaining defendants to obtain a fair trial.”
The decision before us is whether the district court abused its discretion in so ruling. In Criden I, we held that where a decision committed to the discretion of the trial court “depends on first-hand observation or direct contact with the litigation”, the trial court has “a superior vantage point which an appellate court cannot replicate” and therefore “[t]he trial court’s decision ... merits a high degree of insulation from appellate revision.” 648 F.2d at 817-18 . We also held that a decision by the trial court with regard to access to materials that is based on the effect of publicity on the jury is the type of discretionary ruling entitled to a high degree of insulation from appellate review. Thus, we stated,
Considerations of the effect of publicity on a jury are ordinarily matters on which the trial court’s judgment is entitled to considerable deference by an appellate court. The trial court has already supervised the selection of one jury and any particular problems which the news coverage in this highly publicized matter created for the selection process would have come to the trial court’s attention. Therefore, if the trial court had already experienced difficulty in jury selection, we would be faced with an actual rather than conjectural factor militating against release of the tapes for rebroadcast.
Id. at 827 . This is patently the situation here.
Although appellants argue before us that this case is indistinguishable from Criden I, I agree with the district court that this case presents considerably different factual circumstances in several significant respects. In the first place, here we are dealing not with a hypothetical trial, as in Criden I, but with an actual trial of other defendants on similar charges, now scheduled to begin November 5. In Criden I, we pointed out that it was unlikely that there would be a trial of any other defendants in this district, since the government had already filed unopposed motions seeking dismissal of the remaining defendants. 648 F.2d at 826 . Thus, the only possible trial was the conjectural one of retrial in the event of a reversal on appeal. Although we could not exclude the “possibility” of a retrial, we considered the remoteness of this possibility as weighing against denial of access, id. at 827 . Accord In re National Broadcasting Co. (United States v. Jenrette), 653 F.2d 609, 616 (D.C.Cir. 1981); In re National Broadcasting Co. (United States v. Myers), 635 F.2d 945, 954 (2d Cir.1980). See also United States v. Mouzin, 559 F.Supp. 463, 468 (C.D.Cal. 1983). In contrast, in this ease the court is not dealing with a second trial as a mere possibility which may occur sometime after appellate review, but with the actuality of a trial already scheduled to begin shortly. In fact, the court’s decision to postpone the second trial from September 5 to November 5, 1984 was made because of the court’s concern about the effect of publicity on the jury selection process. Philadelphia Inquirer, Aug. 24, 1984.
*976 In the second place, unlike Criden I where the district court had found virtually no difficulty in empanelling a jury, see 648 F.2d at 827 , in this case the court had already encountered such difficulty in the first trial. Although a four-day voir dire does not indicate insurmountable difficulties in selecting a jury, it is important to recognize, as did the district court, that the enhanced publicity as a result of the first trial is likely to make the court’s task in empanelling a jury for the second trial more difficult. I agree with the majority that Judge Huyett is a “thoughtful and sensitive trial judge” with “proven skill to preside over effective voir dire proceedings”, but our confidence that he can overcome the difficulty does not demonstrate that he abused his discretion in evaluating the likelihood of difficulty of securing a jury untainted by pretrial publicity. See United States v. Edwards, 672 F.2d 1289, 1296 (7th Cir.1982).
I do not understand the majority to hold that the effect of releasing the requested material on jury selection is not a relevant factor to be considered in determining whether to give the press immediate access to the materials. Nor do I understand it to be saying that evaluation of this factor is not within the special competence of the trial court. Thus, this case differs from Criden I where “the decision whether to release the tapes was not dependent in the main on particular observations of the trial court.” 648 F.2d at 818 . While we, as appellate judges, may read the voir dire record to see if any problems of unusual difficulty were encountered, the trial judge who experienced the atmosphere of the courtroom and the demeanor of the jurors, prospective jurors, and witnesses is in a far better position to assess the effect of publicity on the trial proceedings. See Patton v. Yount, — U.S. -, 104 S.Ct. 2885, 2892-93 , 81 L.Ed.2d 847 (1984). For similar reasons, other courts reviewing decisions of trial courts that denied the press access to requested materials have also accorded deference to the trial court’s concern about the effect of publicity on the defendant’s right to a fair trial. See, e.g., United States v. Edwards, 672 F.2d at 1296 ; Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 431-34 (5th Cir.1981).
The final significant difference between this case and Criden I is that here the district court did not deny access but merely postponed it. As the district court stated: “I will not prohibit the disclosure entirely, but will prohibit disclosure until after the tapes are played at the second trial. If the Government determines that it will not offer the recordings as evidence at the second trial, the transcripts may be released after the jury is impanelled in that case.” The effect of the district court’s ruling is that the tapes as well as the transcripts will be made available to the press no later than the date that they are played at the second trial, and possibly before. This ruling should provide ample vindication of the right of the public through the press to observe the trial proceedings “at a time when the issues remain[] a matter of public interest.” Criden I, 648 F.2d at 827 .
Significantly, the majority has not suggested that a decision on access to evidence or material submitted to the jury, hitherto discretionary, has now become one covered by a rule of general applicability. See Criden I, 648 F.2d at 818 . Instead, it disagrees only with the result reached by the district court in balancing the relevant factors. However, the district court followed the framework established by Criden I, accepted the presumption favoring release, and considered the relevant factors. While I also might not have made the same decision as did the district court, I cannot say that the court’s delicate balance between, on the one hand, concern about the effect of enhanced publicity on selection of a jury in a trial to begin shortly and, on the other hand, a temporary postponement of the press’ access to materials which have already been played in open court and which have been the subject of full report in the press was so askew as to constitute an abuse of discretion. Therefore, I respectfully dissent.