Conn. Practice Book § 42-49 — Closure of Courtroom in Criminal Cases

(Amended May 14, 2003, to take effect July 1, 2003.)

(P.B. 1978-1997, Sec. 895.) (Amended June 28, 1999, to take effect Jan. 1, 2000; amended May 14, 2003, to take effect July 1, 2003; amended June 21, 2004, to take effect Jan. 1, 2005.)

HISTORY-2003: Prior to 2003, when both the title and text were amended, Section 42-49 read: "-Exclusion of the Public; Sealing or Limiting Disclosure of Documents "(a) Except as provided in this section and except as otherwise provided by law, including Sections 36-2, 40-29 and 40-40 through 40-43 and General Statutes § 54-33c, the judicial authority shall not order that the public, which may include the news media, be excluded from any portion of a court proceeding and shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited. "(b) Upon motion of the prosecuting authority or of the defendant, or upon its own motion, the judicial authority may order that the public be excluded from any portion of a court proceeding and may order that files, affidavits, documents or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding or in viewing such materials. Any such order shall be no broader than necessary to protect such overriding interest. "(c) In connection with any order issued pursuant to subsection (b) of this section, the judicial authority shall, on the record in open court, articulate the overriding interest being protected and shall specify its findings underlying such order. The time and date of any such order shall be entered by the court clerk in the court file together with such order. "(d) With the exception of orders concerning any session of court conducted pursuant to General Statutes § 54-76h or any other provision of the General Statutes under which the court is authorized to close proceedings, whether at a pretrial or trial stage, no order excluding the public from any portion of a proceeding shall be effective until seventy-two hours after it has been issued. Any person affected by such order shall have the right to the review of such order by the filing of a petition for review with the Appellate Court within seventy-two hours from the issuance of such order. The timely filing of any petition for review shall stay such order. (See General Statutes § 51-164x.) "(e) With the exception of orders concerning the disclosure of any documents pursuant to General Statutes § 54-33c or any other provision of the General Statutes under which the court is authorized to seal or limit the disclosure of files, affidavits, documents or materials, whether at a pretrial or trial stage, and any order issued pursuant to a court rule that seals or limits the disclosure of any affidavit in support of an arrest warrant, any person affected by a court order that seals or limits the disclosure of any files, documents or other materials on file with the court or filed in connection with a court proceeding, shall have the right to the review of such order by the filing of a petition for review with the Appellate Court within seventy-two hours from the issuance of such order. Nothing under this subsection shall operate as a stay of such sealing order."

COMMENTARY-2003: The public and press enjoy a right of access to attend trials in criminal cases. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press-Enterprise II); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982). This right is well settled in the common law and has been held to be implicit in the first amendment rights protecting the freedom of speech, of the press, of peaceable assembly and to petition the government for a redress of grievances. Globe Newspaper Co. v. Superior Court, supra, 603; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); see generally Press-Enterprise II, supra, 6-13; see also In re Matter of the New York Times Co., 828 F.2d 110, 113 (2d Cir. 1987). In Richmond Newspapers, Inc. v. Virginia, supra, 564, the court explained that "throughout its evolution, the trial has been open to all who care to observe." The guarantee of open public proceedings in criminal trials applies as well to voir dire and pretrial proceedings. Press- Enterprise Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 248 (1984) (Press-Enterprise I); United States v. Cojab, 996 F.2d 1404, 1407 (2d Cir. 1993); United States v. Haller, 837 F.2d 84, 86 (2d Cir. 1988); United States v. Gerena, 703 F. Supp. 211, 213 (D. Conn. 1988). The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was entered properly. Press-Enterprise I, supra, 510; United States v. Haller, supra, 87; Doe v. Meachum, 126 F.R.D. 452, 455 (D. Conn. 1989); State v. Kelly, 208 Conn. 365, 372, 545 A.2d 1048 (1988). Such findings may be made under seal when necessary. United States v. Haller, supra, 87; see In re Application of the Herald Co., 734 F.2d 93, 100 (2d Cir. 1984) (closure of suppression hearing should be allowed only upon showing of significant risk of prejudice to defendant's right to fair trial, if there is danger to persons or property, or in connection with significant activities entitled to confidentiality, such as undercover investigations); see also United States v. Brooklier, 685 F.2d 1162, 1168-69 (9th Cir. 1982) (since purpose of articulated findings is to enable appellate court to determine whether order was properly entered, findings must be sufficiently specific to show that public proceedings would result in irreparable damage to defendant's right to fair trial, that no alternative to closure would adequately protect defendant's right to fair trial, and that closure would protect that right). Since the circumstances of a particular case may affect the significance of the interest sought to be protected, the requirement that specific findings justifying closure be articulated mandates a case-by-case analysis of the interest involved. Globe Newspaper Co. v. Superior Court, supra, 457 U.S. 607-608 (where welfare of minor child is at issue, factors to be weighed in determining whether closure is warranted include minor victim's age, psychological maturity and understanding, nature of crime, desires of victim, and interests of parents and relatives). A case-by-case analysis of the interests involved ensures that the constitutional right of access to trials will not be restricted except where absolutely necessary. Id., 609. "For a case-by-case approach to be meaningful, representatives of the press and general public 'must be given an opportunity to be heard on the question of their exclusion.' " Id., 609 n.25, quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979) (Powell, J., concurring). Except in extraordinary circumstances, the press and public must have a means of learning of the closure or sealing order. See United States v. Haller, supra, 837 F.2d 87. "[A] motion for courtroom closure should be docketed in the public docket files maintained in the court clerk's office. . . . The motion itself may be filed under seal, when appropriate, by leave of court . . . ." (Citation omitted.) In re Application of the Herald Co., supra, 734 F.2d 102; see also In re Knight Publishing Co., 743 F.2d 231, 235 (4th Cir. 1984); In re Knoxville News-Sentinel Co., 723 F.2d 470, 474-76 (6th Cir. 1983). Because this section no longer deals with the sealing of documents, subsection (e) has been transferred to Section

HISTORY-2005: Prior to 2005, the third sentence of subsection (d) read: "The time, date and scope of any such order shall be in writing and shall be signed by the judicial authority and be entered by the court clerk in the court file."

COMMENTARY-2005: As used in subsection (a) above, the words "Except as otherwise provided by law" are intended to exempt from the operation of this rule all established procedures for the closure of courtroom proceedings as required or permitted by statute; e.g., General Statutes §§ 19a-583 (a)

(10) (D) (pertaining to court proceedings as to disclosure of confidential HIV-related information), 36a-21 (b) (pertaining to court proceedings at which certain records of the Department of Banking are disclosed), 46b-11 (pertaining to hearings in family relations matters), 54-86c (b) (pertaining to the disclosure of exculpatory information or material), 54-86f (pertaining to the admissibility of evidence of sexual conduct) and 54-86g (pertaining to the testimony of a victim of child abuse); other rules of practice; e.g., Practice Book Section 40-43; and/or controlling state or federal case law. The above amendment to subsection (d) establishes a mechanism by which the public and the press, who are empowered by this rule to object to pending motions to close the courtroom in criminal matters, will receive timely notice of the court's disposition of such motions. General Statutes § 51- 164x (a) gives any person affected by a court closure order in a criminal action the right to the review of such order by filing a petition for review with the Appellate Court within seventytwo hours from the issuance of the order.