stating, after noting that none of the U.S. Supreme Court precedents applied a First Amendment right torecords as opposed to proceedings, that in applying thePress-Enterprise II test to documents, "some courts have looked to the proceeding to which the documents relate. . . ."
How later courts described this case
- stating, after noting that none of the U.S. Supreme Court precedents applied a First Amendment right torecords as opposed to proceedings, that in applying thePress-Enterprise II test to documents, "some courts have looked to the proceeding to which the documents relate. . . ."
- on filing with the court, a search warrant affidavit is a public document both by statute and under the common law right of access, declining to find a First Amendment right of access and disagreeing with the 8th Circuit decision in Gunn, but finding that defendant's Sixth Amendment right to a fair trial outweighed the common law right of access and justified "impoundment" of affidavit
- noting that court had inherent right to impound search warrant affidavit even though it was a public record by statute
- suspect’s Sixth Amendment right to fair trial infringed by disclosure of search warrant affidavits pertaining to murder investigation where disclosure was sought before suspect was indicted or subject to any criminal proceedings
Written by the judges who cited it.
The opinion
Wilkins, J.
(concurring). This case deals with a claim of access to an affidavit asserted after a search warrant had been executed and returned to court and after criminal proceedings had been commenced. The newspaper makes no claim under the State Constitution. By statute and common law, the affidavit was public. In my view the judge’s duties with respect to impoundment do not depend on whether there is a First Amendment right of access to such a document.
In many instances, there are clear governmental interests in the nondisclosure of the contents of such a filed affidavit, particularly prior to the completion of an investigation. It seems important in this respect that the prosecutor did not initially seek impoundment of the affidavit. In the face of a statute that made the affidavit public, I question whether a clerk-magistrate had any right to deny access to it. Although perhaps a judge could make an impoundment order on her own motion, in general the question of impoundment is one that a prosecutor should raise in protection of the government’s interest and that a defendant (or target of the search) could raise in protection of his interests.
A judge confronted with a motion to impound or to lift an impoundment order must consider and decide the case on its particular facts. See Uniform Rules of Impoundment Procedure (1988); Rules 7 and 8 of the Rules of the Trial Court (1988). Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 (1982) (mandatory rule closing trial is unconstitutional). *639 No general principle, articulated in support of impoundment, can justify an impoundment without case-specific fact-finding. See Globe Newspaper Co. v. Superior Court, 383 Mass. 838, 852-853 (1981) (Wilkins, J., concurring), rev’d, 457 U.S. 596 (1982). Here, the judge’s reason in support of impoundment was based solely on the threat to the criminal defendant’s right to a fair trial, if any part of the affidavit were to be disclosed. The motion judge had to support such a conclusion by showing what facts would be unfairly prejudicial and how the criminal defendant’s rights could not be reasonably protected other than by impoundment. Cf. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986) (access to preliminary criminal proceeding). Such findings and rulings themselves might have to be impounded in whole or in part. The facts the judge relied on (the sparcity of the local population; the fact the warrant was issued on only a showing of probable cause; and the fact that certain information in the affidavits came from many sources, would be suppressible, or would be inadmissible at trial) do not, without more, justify the impoundment.
The adverse consequences of disclosure of the contents of the affidavit would seem likely to have paled in comparison with the consequences of the disclosure, already made, that the criminal'- defendant had been charged with murder in the first degree. Could the affidavit have been redacted? Would not careful jury selection procedures at the time of trial, months later, eliminate any possible prejudice to the criminal defendant’s right to a fair trial?
The question is now moot. We all agree the order should be dissolved. Thus there is no reason to seek new findings made on a proper standard. It would seem that an impoundment order such as was issued here should include a provision that it will automatically be dissolved at least as early as the conclusion of the criminal proceedings.