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Nancy, Greta and Casey, Oh My! Public Access to Criminal Discovery Records

Permanent Link: http://ufdc.ufl.edu/UFE0025053/00001

Material Information

Title: Nancy, Greta and Casey, Oh My! Public Access to Criminal Discovery Records a Look Behind the Curtain in the Age of the Twenty-Four Hour News Cycle
Physical Description: 1 online resource (137 p.)
Language: english
Creator: Pafundi, Brian
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2009

Subjects

Subjects / Keywords: access, amendment, anthony, casey, communications, court, crime, criminal, discovery, fair, first, florida, government, newspapers, open, pre, privacy, records, trial
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: The public availability of criminal discovery records implicates three important pillars of American jurisprudence: public access to the judiciary, a defendant s right to a fair trial and the protection of individual privacy. Florida s public records law opens discovery records to public inspection once exchanged between the opposing parties. The vast media coverage of the Casey Anthony saga highlights the potential harm to privacy and fair trial rights when the public has access to these records. Since 1980, the United States Supreme Court has recognized a First Amendment right of access to some pretrial proceedings and to trials. The Court also has acknowledged a common law right of access to court records in general. It has not yet, however, extended a right of access specifically to criminal discovery, leaving the lower courts and the several states to determine whether the public should be afforded access to the items generated during the criminal discovery process. In light of this gap, this research provides a survey of how the several states have filled in the hole, analyzing state court decisions, rules of procedure and public records laws to determine if any other jurisdiction has joined Florida in providing public access to the plethora of information generated in the pretrial discovery process. Only two states, Florida and Rhode Island, directly provide for access to criminal discovery materials. Twenty-five states deny public access to criminal discovery records, eleven through their public records law exemptions and twelve through the custody of discovery materials restriction. Two other states use case law to deny public access to criminal discovery records. Finally, four states appear to neither explicitly deny nor grant access to criminal discovery records.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Brian Pafundi.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2009.
Local: Adviser: Chamberlin, William F.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2011-08-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2009
System ID: UFE0025053:00001

Permanent Link: http://ufdc.ufl.edu/UFE0025053/00001

Material Information

Title: Nancy, Greta and Casey, Oh My! Public Access to Criminal Discovery Records a Look Behind the Curtain in the Age of the Twenty-Four Hour News Cycle
Physical Description: 1 online resource (137 p.)
Language: english
Creator: Pafundi, Brian
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2009

Subjects

Subjects / Keywords: access, amendment, anthony, casey, communications, court, crime, criminal, discovery, fair, first, florida, government, newspapers, open, pre, privacy, records, trial
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, M.A.M.C.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: The public availability of criminal discovery records implicates three important pillars of American jurisprudence: public access to the judiciary, a defendant s right to a fair trial and the protection of individual privacy. Florida s public records law opens discovery records to public inspection once exchanged between the opposing parties. The vast media coverage of the Casey Anthony saga highlights the potential harm to privacy and fair trial rights when the public has access to these records. Since 1980, the United States Supreme Court has recognized a First Amendment right of access to some pretrial proceedings and to trials. The Court also has acknowledged a common law right of access to court records in general. It has not yet, however, extended a right of access specifically to criminal discovery, leaving the lower courts and the several states to determine whether the public should be afforded access to the items generated during the criminal discovery process. In light of this gap, this research provides a survey of how the several states have filled in the hole, analyzing state court decisions, rules of procedure and public records laws to determine if any other jurisdiction has joined Florida in providing public access to the plethora of information generated in the pretrial discovery process. Only two states, Florida and Rhode Island, directly provide for access to criminal discovery materials. Twenty-five states deny public access to criminal discovery records, eleven through their public records law exemptions and twelve through the custody of discovery materials restriction. Two other states use case law to deny public access to criminal discovery records. Finally, four states appear to neither explicitly deny nor grant access to criminal discovery records.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Brian Pafundi.
Thesis: Thesis (M.A.M.C.)--University of Florida, 2009.
Local: Adviser: Chamberlin, William F.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2011-08-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2009
System ID: UFE0025053:00001


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1 NANCY, GRETA AND CASEY, OH MY! PUBLIC ACCESS TO CRIMINAL DISCOVERY RECORDS: A LOOK BEHIND THE CURTAIN IN THE AGE OF THE TWENTYFOUR HOUR NEWS CYCLE By BRIAN S PAFUNDI A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVE RSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATION UNIVERSITY OF FLORIDA 2009

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2 2009 Brian S Pafundi

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3 To Deanna

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4 ACKNOWLEDGMENTS I would like to first and foremost thank Dr. Bill Chamberlin. This thesis would not have been possible without his teaching, guidance, support, and, most of all, patience. I would also like to thank my parents Barbara and Ted who have supported and loved me unconditionally throughout my entire life. I owe everything to them. Finally, I would like to recognize my wife Deanna. I could not have done this without her. She is my inspiration, my partner, my best friend.

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5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ...............................................................................................................4 LIST OF TABLES ...........................................................................................................................7 LIST OF TABLES ...........................................................................................................................7 AB STRACT .....................................................................................................................................8 CHAPTER 1 THE TWISTED TALES OF THE TOT MOM ......................................................................10 Introduction .............................................................................................................................10 Thesis Overview .....................................................................................................................22 2 TRUTH AND SPORT: A BRIEF REVIEW OF THE PRE TRIAL CRIMINAL DISCOVERY PROCESS .......................................................................................................24 Introduction .............................................................................................................................24 Literature Review ...................................................................................................................25 Early Criminal Discovery: Limited Defendant Access ..........................................................26 Criminal Discovery Comes Of Age: The Limited Versus Broad Debate ..............................29 The Criminal Discovery Process Today: How It Works And What Is Exchanged? ..............33 Criminal Discovery And The Casey Anthony Case ...............................................................37 Summary .................................................................................................................................38 3 THE AMERICAN TRADITION OF OPEN COURTS THROUGH SUPREME COURT JURISPRUDENCE ..................................................................................................40 Introduction .............................................................................................................................40 Literature Review ...................................................................................................................42 Supreme Court Access To Courts Jurisprudence ...................................................................44 CommonLaw Access to Courts: Nixon v. Warner Communications .............................45 Constitutional Access to Courts ......................................................................................48 Richmond Newspapers v. Virginia ...........................................................................49 The progeny of Richmond Newspapers ...................................................................52 Federal Case Law Specifically Addressing Access To Discovery Records ...........................55 The Supreme Court and Access to Civil Discovery ........................................................55 Access to Criminal Discovery as the Lower Federal Courts See it .................................57 Summary .................................................................................................................................58 4 THE SUNSHINE STATE LIVES UP TO ITS NAME: A STATEBY STATE REVIEW OF PUBLIC ACCESS TO CRIMINAL DISCOVERY RECORDS .....................59

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6 Introduction .............................................................................................................................59 Findings ..................................................................................................................................60 Florida: In a Class of its Own ..........................................................................................60 Rhode Island ....................................................................................................................62 No Access for You! .........................................................................................................64 Public records exemptions construed to deny access to criminal discovery records ...................................................................................................................64 Discovery custody provision construed to deny access to criminal discovery records ...................................................................................................................69 The OddBall Jurisdictions ..............................................................................................73 The Silent Jurisdictions ...................................................................................................75 Summary .................................................................................................................................75 5 THE TWISTED TALES OF THE TOT MOM, CONTINUED .............................................78 Competing Values Of Fair Trial And Privacy ........................................................................82 Analysis ..................................................................................................................................84 Future Studies .........................................................................................................................87 Conclusions .............................................................................................................................89 APPENDIX A CASEY ANTHONY DISCOVERY PHOTOS ......................................................................91 B CASEY ANTHONY DISCOVERY DOCUMENTS ...........................................................100 LIST OF REFERENCES .............................................................................................................126 BIOGRAPHICAL SKETCH .......................................................................................................137

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7 LIST OF TABLES Table page 41 State by state access list ....................................................................................................76

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8 Abstract of Thesis Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Arts in Mass Communication NANCY, GRETA AND CASEY, OH MY! PUBLIC ACCESS TO CRIMINAL DISCOVERY RECORDS: A LOOK BEHIND THE CURTAIN IN THE AGE OF THE TWENTYFOUR HOUR NEWS CYCLE By Brian S Pafundi August 2009 Chair: Bill Chamberlin Major: Mass Communication The public availability of criminal discovery records implicates three important pillars of American jurisprudence: public access to the judiciary, a defendants right to a fair trial and the protection of individual privacy. F loridas public records law opens discovery records to public inspection once exchanged between the opposing parties. The vast media coverage of the Casey Anthony saga highlights the potential harm to privacy and fair trial rights when the public has acces s to these records. Since 1980, the United States Supreme Court has recognized a First Amendment right of access to some pretrial proceedings and to trials. The Court also has acknowledged a common law right of access to court records in general. It has not yet, however, extended a right of access specifically to criminal discovery, leaving the lower courts and the several states to determine whether the public should be afforded access to the items generated during the criminal discovery process. In light of this gap, this research provides a survey of how the several states have filled in the hole, analyzing state court decisions, rules of procedure and public records laws to determine if any other jurisdiction has joined Florida in providing public access to the plethora of information generated in the pretrial discovery process.

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9 Only two states, Florida and Rhode Island, directly provide for access to criminal discovery materials. Twenty five states deny public access to criminal discovery records, eleven through their public records law exemptions and twelve through the custody of discovery materials restriction. Two other states use case law to deny public access to criminal discovery records. Finally, four states appear to neither explicitly deny nor gr ant access to criminal discovery records.

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10 CHAPTER 1 THE TWISTED TALES OF THE TOT MOM1Nancy, I wouldn`t believe tot mom if she said that she were the worst human being in the worldNo, this woman doesn`t know the difference between truth, a lie. She`s a sociopath, purely and simply a sociopath. 2 Introduction On February 10, 2009, hundreds of strangers, some travelling as far as Tennessee, congregated in a church outside Orlando, Florida to support a family laying a two year old girl named Caylee to rest. 3 Many in attendance never met the grieving Anthony family.4 Yet the media coverage of the little girls disappearance and the surrounding circumstances captivated local and national audiences and projected this Florida family into the national spotlig ht; so much so that the couple from Tennessee drove over ten hours to support George and Cindy Anthony, the little girls grandparents, at the memorial service.5 Another stranger in attendance simply needed closure.6 Several local news channels covered the memorial live while CNN streamed coverage of the service on its website and also showed portions of it live on its HLN cable channel.7 1 Cable news pundit Nancy Grace refers to Casey Anthony as the Tot Mom during her nightly coverage of this on going story. A search of t he printed transcript from Nancy Graces March 24, 2009 episode returned nineteen references to the tot mom. Nancy Grace, More Racy Pictures of Casey Anthony Surface CNN.com, Mar. 24, 2009 http://transcripts.cnn.com/TRANSCRIPTS/0903/24/ng.01.html (last visited June 13, 2009). 2 Daryl Cohen, attorney for Casey Anthonys exfianc Jesse Grund, responding to Nancy Graces question on whether she could believe anything tot mom says. Nancy Grace, FBI Test Clears Brother Lee Anthony of Caylee Paternity, CNN.com, Mar. 17, 2009, http://transcripts.cnn.com/TRANSCRIPTS/0903/17/ng.01.html (last visited June 13, 2009). 3 Walter Pacheco, Caylee Anthony Mourners Gather to Support George and Cindy ORLANDO SENTINEL, Feb. 10, 2009, available at htt p://www.orlandosentinel.com/news/local/caylee anthony/orl bkcayleeanthony funeral 021009,0,6225991.story (last visited June 13, 2009). 4 WESH.com, Hundreds Mourn Caylee At Memorial Service Feb. 10, 2009, http://www.wesh.com/news/18679508/detail.html (last visited June 13, 2009). 5 Pacheco, supra note 3. 6 Id. 7 Hal Boedecker, Caylee Anthony Memorial: Lee, George, Cindy Remember Toddler -and Incarcerated Casey ORLANDO SENTINEL, Feb. 10, 2009, available at

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11 Shortly after the little girls disappearance in July 2008, a media frenzy ensued.8 A local Orlando commentator not ed that the case had all the makings of a Lifetime television movie: a missing toddler; an unstable mother who may have done the unspeakable; bounty hunters; self interested cops leaking information to the press; an attention hungry state attorney; and local media milking every jot and tittle of the case for maximum exposure.9 In the first two months after Caylees disappearance, the Orlando Sentinel ran nearly fifty stories on the saga.10 According to a Sentinel reporter covering the case, (t)here is so much competition on this case that we are pressured to be the first to post any new detail online.11 As of late March 2009, a local broadcast news stations website had posted over 300 articles.12 National cable crime pundits such as Nancy Grace13 and Greta van Sustern14 http://blogs.orlandosentinel.com/entertainment_tv_tvblog/2009/02/caylee anthony memorial leege orge cindy remember toddler.html have devoted hours of coverage to the (June 13, 2009). 8 See, e.g., Matthew Albright, Nietzsche is Dead: Media Frenzy Over Anthonys Death Inappropriate DAILY REVEILLE, Feb. 15, 2009, available at http://www.lsureveille.com/opinion/1.14370521.1437052 (last visited June 13, 2009). See also Walter Pacheco, Media Frenzy Cant Penetrate Casey Anthonys Cell ORLANDO SENTINEL, Jan. 7, 2009, available at http://www.orlandosentinel.com/news/local/orange/orl caseytv0709jan07,0,3317271.story (last visited June 14, 2009) (discussing how Casey Anthonys notoriety as a high profile inmate has le d to a Level 1 protective custody status). 9 Jeffrey Billman, Our Dumb State: The Casey Anthony Edition, ORLANDO WEEKLY, Sept. 11, 2008, available at http://www.orlandoweekly.c om/features/story.asp?id=12610 (last visited June 14, 2009). 10 Id 11 E mail from Sarah Lundy, Reporter, ORLANDO SENTINEL, to Brian Pafundi, Graduate Student, University of Florida (March 6, 2009, 13:09 EST)(on file with author). 12 A search on June 14, 2009 for Casey Anthony on WFTV.coms website archive returned 384 results. See http://www.wftv.com/search/form.html?searchType=site&cx=partner pub 6068200365010040%3A6uskt3qfbjw&cof=FORID%3A9&ie=ISO 8859 1&qt=%22casey+anthony%22&stories=on&sa.x=26&sa.y=11. WFTV.com had over 150 stories by September 4, 2008. See Billma n, supra note 9. 13 Alex Weprin, Why is HLN Topping CNN in Primetime? BROADCASTING & CABLE, Mar. 5, 2009, available at http://www.broadcastingcable.c om/blog/BC_Beat/11476Why_Is_HLN_Topping_CNN_In_Primetime_.php (last visited June 14, 2009) (attributing HLNs recent ratings success to its coverage of the Casey Anthony saga). In addition to nightly coverage of the case, the Nancy Grace Shows home page also maintains a collection of links to articles and information related to the case. See Nancy Grace Home Page, http://www.cnn.com/CNN/Programs/nancy.grace/ (last visited June 14, 2009).

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12 case while, in Graces case, enjoying considerable ratings boosts.15 The national coverage included Americas Most Wanted, Larry King Live, Today Show and even Dateline and 20/20 specials airing just days after authorities found Caylees body.16 Even further, according to Yahoo.com, more people used its search engine to find information on the Casey Anthony saga than on the 2008 presidential election.17 Overall, as an Orlando Sentinel reporter commented, Web and TV are abuzz with the latest news about Casey Anthony.18Early during the investigation, authorities charged the little girls mother Casey Anthony with child neglect and other crimes alleged stemming from interference with the investigation of her daughters disappearance. 19 14 Fo r an overview of Greta Van Susterens coverage of the Casey Anthony case, see On the Record w/ Greta: The Caylee Anthony Case, Ultimately, after months of speculation and without a body, local http://www.foxnews.com/ontherecord/caylee/index.html (last v isited June 14, 2009). 15 See Hal Boedeker, Caylee Anthony Factor: It Helps HLN's Nancy Grace Place Second in All Important Age Group, Behind Fox News' Bill O'Reilly ORLANDO SENTINEL, Feb. 24, 2009, available at http://blogs.orlandosentinel.com/entertainment_tv_tvblog/2009/02/caylee anthony factorithelps hlns nancy graceplacesecond in allimportantage group behindfoxne.html (last visited June 14, 2009); TVNewser.com, Nancy Graces Best Ratings Ever, Dec. 12, 2008, http:/ /www.mediabistro.com/tvnewser/cnn/nancy_graces_best_ratings_ever_103301.asp (last visited June 14, 2009). See also James Rainey, On the Media: The Warm and Cozy Just Doesnt Let Up, L .A. TIMES, Jan. 28, 2009, at A10 (noting that Nancy Graces ratings incr eased over 40% in 2008). 16 Dennis Murphy, When Caylee Vanished, MSNBC.com, Dec. 12, 2008, http://www.msnbc.msn.com/id/28159418/ (last visited July 9, 2009); T V .NY imes.com, 20/20 Episode Guide: Finding Caylee Dec. 12, 2008, http://tv.nytimes.com/episode/83958/2020/overview (last visited July 9, 2009). 17 Etan Horowitz, More people searched online for the Casey Anthony case than the pres idential election, Yahoo says ORLANDO SENTINEL, Dec. 1, 2008, available at http://blogs.orlandosentinel.com/etan_on_tech/2008/12/more people sea.html (last visited July 9, 2009). 18 Walter Pacheco, Media Frenzy Cant Penetrate Casey Anthonys Cell ORLANDO SENTINEL, Jan. 7, 2009, available at http://www.orlandosentine l.com/news/local/orange/orl caseytv0709jan07,0,3317271.story (last visited June 14, 2009). 19 WESH.com, Official Charges Filed Against Casey Anthony Aug. 5th 2008, http://www.wesh.com/news/17099679/detail.html (last visited July 9, 2009).

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13 authorities charged Anthony with first degree murder in her daughter Caylees death.20 About two months later, Caylees body was found within a mile of the Anthony home.21Since July 2008, when Caylees disappearance was first reported and covered by various media outlets, thousands of pages of legal documents detailing the sweeping criminal investigation have been released in response to [public] records requests. 22 The treasure trove of records available to the media has driven the print, online and television coverage of this case.23 Various agencies involved have been inundated with constant [public records] requests from reporters.24 According to Orange County Public Information Officer Allen Moore, no case has generated this much media activity for such a long period of time.25 For example, a document release in early April contained three DVDs of data and was covered exhaustively by both the local and nationa l media. The Orlando Sentinel posted real time updates throughout the day as their reporters combed through the digital records.26 Nancy Grace and Greta van Sustern spent a majority of their hour long primetime shows on the records release.27 20 Steph Watts and Scott Michels, Mom Charged With Murder in Caylee Anthony Case ABCNews.com. Oct. 14, 2008, http://abcnews.go.com/TheLaw/st ory?id=6032237&page=1 (last visited July 9, 2009). 21 Lee Ferran, Caylee Anthonys Death is Now Official ABCNews.com, Dec. 19, 2008, http://abcnews.go.com/TheLaw/Story?id=6491140&page=1 (last visited July 9, 2009). 22 Amy Edwards, Florida Laws Open Book on Casey Anthonys Life ORLANDO SENTINEL, March 15, 2009, available at http://www.orlandosentinel.com/news/local/caylee anthony/orl casey anthony caylee public records 031509,0,4389536.story (last visited July 9, 2009). 23 According to First Amendment Scholar Clay Clavert, (t)he Anthony story itself has s ensationalistic appeal that makes it popular for our voyeuristic tendencies in the a reality TV world. Nonetheless, the openrecords laws of Florida have helped to fuel that fire. Id 24 Id 25 Id 26 USAToday.com, Prosecutors Release More Info in Caylee Ant hony Case April 6, 2009, http://blogs.usatoday.com/ondeadline/2009/04/prosecutors releasemore info in cayleeanthonycase.html (last visited July 9, 2009). 27 Nancy Grace, Casey Anthony Arrest Tapes Released Nancy Grace Show, April 6, 2009; Greta Van Susteren, New Video Released in Casey Anthony Case, On the Record with Greta Van Susteren, April 6, 2009.

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14 Of particular v alue to the immense media coverage were the records generated through the pretrial discovery process.28 In October, Fox News attributed the official declaration of Casey becoming a suspect to a release of reams of pages of discovery.29 The Orlando Sentinel has thousands of pages of discovery documents30 and most of the details theyve reported have come from discovery.31 Following one particular release of discovery documents, the Anthony defense team, through a spokesperson, commented that it would reserv e comment on these kinds of releases of discovery until the discovery is actually of some importance to real evidence in the case.32 The New Zealand Herald published an Associated Press report in November 2008 discussing a web search report contained in ne arly 800 pages of discovery documents released.33 28 The thousands of pages of court documents released so far have included everything from forensic evidence reports and transcripts of detectives interviews to the details about the parties and clubs Anthony frequented. Amy Edwards, Florida Laws Open Book on Casey Anthonys Life ORLANDO SENTINEL, March 15, 2009, available at During a discussion on the Today show in March of 2009, reporters Dan Abrams and Amy Robach discussed the unusualness of the amount of discovery being made available to the http://www.orlandosentinel.com/news/local/caylee anthony/orl casey anthony c ayleepublic records031509,0,4389536.story (last visited July 9, 2009). 29 FoxNews.com, Casey Anthony Officially Called a Suspect in Daughter Caylees Disappearance Oct. 3, 2008, http://ww w.foxnews.com/story/0,2933,431925,00.html (last visited July 9, 2009). The story discusses the Orange County Sheriffs Captain Angelo Nievess announcement that Casey Anthony is a suspect in her daughters disappearance. That disclosure is specifically at tributed to the previous disclosure of discovery documents. Id The move comes after reams of pages of discovery evidence documents including text message, voicemail and police interview transcripts were released last week Id 30 E mail from Amy E dwards, Reporter, ORLANDO SENTINEL, to Brian Pafundi, Graduate Student, University of Florida (Jan. 22, 2009 8:53 EST)(on file with author). 31 E mail from Sarah Lundy, Reporter, ORLANDO SENTINEL, to Brian Pafundi, Graduate Student, University of Florida ( March 6, 2009, 13:09 EST)(on file with author). 32 Marva Hinton, Defense Team Responds to Discovery, WDBO.com, March 6, 2009, available at http://wdbo.com/localnews/2009/03/defense team responds to disco.html (last visited July 9, 2009). 33 Dodgy Web Searches Found on Charged Mums PC N. Z. HERALD, N ov. 27, 2008.

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15 public.34 On the March 17, 2009, episode of Nancy Graces show, she referenced documents she referred to as official state discovery documents.35The pretrial criminal discovery process involves the reciprocal exchange of material the prosecution will use in attempting to secure a convi ction and the information the defense will use in attempting to achieve an acquittal. 36 The process includes information that may or may not eventually be submitted as evidence at trial or part of another adjudicative action.37 Floridas public records law subjects discovery records to public inspection once exchanged between the opposing parties.38 As an example of what can be found in these documents, the Casey Anthony discovery records widely disseminated by local and national media have included crime scene photos, video, audio and transcripts of witness interviews, forensic reports, Internet chat logs and digital images taken from the defendants computer.39 Personal information and pictures of third parties unrelated to the case appear throughout the mate rials as well as records the state alleges implicate Anthony in her daughters death.40 34 Amy Robach, Hundreds of pages of new evidence released in Casey Anthony Case; Dan Abrams Discusses, Today Show March 21, 2009. 35 Nancy Grace, FBI Test Clears Brother Lee Anthony of Caylee Paternity, CNN.com, Mar. 17, 2009, http://transcripts.cnn.com/TRANSCRIPTS/0903/17/ng.01.html (last visi ted June 13, 2009). 36 JOHN L. WORRALL, CRIMINAL PROCEDURE: FROM FIRST CONTACT TO APPEAL 308 (Jennifer Jacobson ed., 2004). 37 CHRIS SLOBOGIN AND CHARLES WHITEBREAD, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 67198 (5th ed.). See also infra Ch. T wo. 38 Floridas Public Records law provides an exemption from disclosure for criminal intelligence information and criminal investigative information. FLA. STAT. 119.071 (2) (2008). These terms specifically do not include (d)ocuments given or require d by law or agency rule to be given to the person arrested. FLA. STAT. 119.011 (c)(5) (2008). Criminal discovery is the process by which these documents would be given to the person arrested. See Charles Davis, Access to Discovery Records in Florida C riminal Trials: Public Justice and Public Records 6 J. LAW. & PUB. POL'Y 297 (1994). 39 See infra Appendix A and Appendix B. 40 Id.

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16 Because of their inflammatory41 and sensitive42 nature, many of the records made available to the public as a result of the criminal discovery process implicate the fair t rail rights of a defendant as protected by the Sixth Amendment to the Constitution43 and the commonlaw, statutory and constitutional privacy interests of third party individuals.44 W hen available to a prospective jury pool, discovery materials could impair a defendants ability to receive a fair trial. It can become problematic, for example, to seat an unbiased jury after the media disseminates even a small amount of documents obtained from the discovery process. By having access to criminal discovery record s, the potential jury pool is not shielded by the rules of evidence and will be privy to information that may never submitted to them at trial.45 In the Casey Anthony case, her attorney Jose Baez unsuccessfully sought a protective order to prevent the release of certain digital images that may cast a negative light on his client.46 In addition, commentators have pondered whether it will be possible to seat a juror who has not been subjected to some of the widespread media coverage of the case, 47 41 The term Inflammatory will be used to refer to those materials that, if available to the public, could implicate the fair trial rights of the defendant. See, e.g., Sheppard v. Maxwell, 384 U.S. 333 (1966), where the Court uses the term to refer to the media coverage that harmed defendants fair trial rights. though Supre me Court 42 The term sensitive refers to those records that, if available to the public, could invade the privacy interests of individuals involved in the case. See e.g. Florida Star v. B.J.F., 491 U.S. 524 (1989), where the Court uses the term to refer to information an individual may want to keep private. 43 The Sixth Amendm ent guarantees the right to a public trial, by an impartial jury. U.S. CONST. amend. VI. 44 In a case involving computerized criminal history records, the United States Supreme Court concluded that the publics interest in access to information is sheddi ng light on the affairs and functioning of the government and not obtaining information about private citizens. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 at 773 (1989). Furthermore, similar to the defendants righ t to a fair trial, the privacy interests of third parties is often weighed against the benefits of public access to both proceedings and records. See, e.g., Armindo Bepko, Public Availability or Practical Obscurity: The Debate Over Public Access to Court R ecords on the Internet, 49 N.Y. L. SCH. L. REV. 967 (2005). 45 See infra Ch. Two. 46 Motion for Protective Order, State v. Casey Marie Anthony, No. 482008 CF 015606O (Fla. 9th Cir. Ct. Feb. 26, 2009). 47 Jane Velez Mitchell, Evidence Released in Caylee A nthony Murder Case Issues with Jane VelezMitchell, Feb. 18, 2009.

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17 case law only requires a juror to remain impartial and have the ability to base a decision on what is presented at trial.48D iscovery records also often contain personal information, such as physical descriptions, addresses, phone numbers, birthdat es and social security numbers of witnesses, investigators and victims, potentially implicating the privacy interests of many individuals both directly and indirectly involved in a criminal case. 49 As evident in the Casey Anthony discovery documents and med ia coverage of them, numerous individuals unrelated to the case except that they once partied with Casey Anthony have had their pictures shown on television and published on the web.50 Even Casey Anthonys own privacy (what little remains) is susceptible to invasion as medical and other personal details can be found throughout the records.51 Depictions of Anthonys visits to the medical ward of the jail where she is being held were amongst a recent release of evidence by the state Attorneys Office and details of meetings with her attorney can also be found amongst the records.52Despite the competing interests of a defendants fair trial rights and individual privacy, the public availability of criminal discovery records can serve a significant purpose. The vast dissemination and abundant airtime devoted to discussing the Casey Anthony discovery records 48 See e.g. Sheppard v. Maxwell, 384 U.S. 333 (1966). 49 Most individuals involved in the court system are not criminal offenders(they are) witnesses, jurors, parents, children, heirs, n eighbors, guardians, etc. Mark Schweikert, Judges Can Balance Online Access to Court Records COLUMBUS DISPATCH, Jan. 26, 2008, available at http://www.columbusdispatch.com/live/content/editorials/stories/2008/01/26/Schweikert_SAT_MUST.A RT_ART_0126 08_A9_RK95G3I.html?sid=101 (last visited July 13, 2009). See also Katherine Webster, Victim Advocates Want Names, Addresses, Records Offline, USA TODAY, Dec. 1, 2003, available at http://www.usatoday.com/tech/news/internetprivacy/2003 1201victim privacy_x.htm (de tailing the plethora of personal data available in court records). 50 See OrlandoSentinel.com, Photos: Casey Anthony Evidence Released April 6, 2009, http://www.orlandosentinel.com/news/local/cayleeanthony/orl photos casey anthonydiscovery 040609,0,4477109.photogallery (last visited July 13, 2009). 51 Drew Petrimoulx, Casey Anthonys Defense to Judge: Delay Ruling on J ail Video WBDO.com, June 9, 2009, http://wdbo.com/localnews/2009/06/caseys defenseto judge delay.html (last visited July 13, 2009). 52 Id.

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18 proves the commercial value of these records. Yet public access to the cache of sensitive and inflammatory information exchanged during the criminal discovery process is not only of great value to a journalist,53 but also to the public at large. Public access to the judiciary and other government entities involved in the criminal justice process is an essential characteristic of the American legal system.54 Open courts, in addition to enabling the media to satisfy the voyeuristic desires of the populace by providing the gruesome and glamorous details of for example, serial killer murders and celebrity drug busts, 55 discourage perjury and other misconduct while as suring that judicial proceedings are conducted with fairness to all concerned.56Since 1980, the United States Supreme Court has recognized a First Amendment right of access to some pretrial proceedings 57 and to trials.58 The Court also has acknowledged a com mon law right of access to court records in general.59 53 See Charles Davis, Access to Discovery Records in Florida Criminal Trials: Public Justice and Public Records 6 J. LAW. & PUB. POL'Y 297 (1994). Judicial records...are among the best source for news stories...Few judicial records are more valuable to journalists than discovery record s..." It has not yet, however, extended a right of access specifically to criminal discovery, leaving the lower courts and the several states to determine whether the public should be afforded access to the i tems generated during the criminal discovery process. In light of this gap, this research will provide a survey of how the several states have filled in the hole, analyzing state court decisions, rules of procedure and public records laws to determine if a ny other jurisdiction has joined Florida in providing public access to the plethora of information generated in the pretrial discovery process. Ultimately, 54 See, e.g., Richmond Newspapers v. Virginia, 448 U.S 555 (1980). 55 Criminal cases historically receiving an abundance of media coverage and public attention range from those involving athletes, celebrities (i.e. the OJ Simpson and Phil Specter murde r case), politicians and other public officials/public figures, to those rare and out of the ordinary cases that seem to always boost ratings (such as the Scott Peterson case, the Danny Rolling student murders and the Jon Benet Ramsey killing). 56 Richmond Newspapers, 448 U.S at 564. 57 Press Enterprise v. California, 478 U.S. 1 (1986); Press Enterprise v. California, 464 U.S. 501 (1984). 58 Richmond Newspapers 448 U.S at 564. 59 Nixon v. Warner Communications, 435 U.S. 589 (1978).

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19 against the backdrop of the Casey Anthony saga, this thesis will determine whether the unprecedented level of access to pretrial criminal discovery documents allowed in Florida is possible in another jurisdiction. Out of the collection of scholarly materials reviewed discussing the publics access to the criminal justice process in general (including art icles focusing on fair trial/free press, privacy, criminal procedure and access to courts), only a small portion focused on access to pre trial procedures. Of these, Access to Discovery Records in Florida Criminal Trials, an article published in 1994 in the University of Floridas Journal of Law and Public Policy by Charles Davis, provides the most thorough review of access to pre trial discovery documents.60In his research, Davis, now an associate professor at the University of Missouris School of Journalism and the Executive Director of the National Freedom of Information Coalition, examined the development of Floridas right of acces s to pretrial discovery records against the backdrop of the highly publicized Danny Rolling student murders case. Though it centers on the state of Florida, no other article directly addresses the topics status in any jurisdiction. 61 At the time of the articles publication, Florida appeared to be the only state to specifically presume access to discovery records.62 Ultima tely, Davis detailed the progression of Floridas common law and statutory rights of access to criminal discovery records, declaring that Floridas strong history of openness has led to the development of this unique right of access.63 60 Charles Davis, Access to Discovery Records in Florida Criminal Trials: Public Justice and Public Records 6 J. LAW. & PUB. POL'Y 297 (1994). 61 Id 62 The author claims he reviewed the open records laws of all 50 states using Lexis and found none containing a similar provision f or discovery records. Id. 63 Id

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20 The student murders, as Davis pointed out, epitomized the battle between public access and a defendants fair trial rights (in this instance, since Rolling pled guilty, the only issue presented to the jury was his sentence).64 After the Rolling trial judge ruled that the publ ic has a presumptive right of access to records produced in criminal discovery, over 4,000 documents, ranging from police reports to descriptions of physical evidence, were released pre trial.65 The judge, however, denied access to certain inflammatory and sensitive materials, including autopsy reports, reports from experts and statements made by the defendant.66The national coverage generated by the Danny Rolling student murders, and the interest in the discovery records associated with the subsequent judicial proceedings, like the present day Casey Anthony saga, illustrate the intrinsic value of these records. According to Davis, discovery documents are a rich source for news stories and not only often lead to further news worthy information, but also allow the public to review each step in the investigative process. 67In addition to the Davis article, Newsgathering and the Law a treatise published by Matthew Bender, also addresses briefly the issue of public access to pre trial criminal discovery documents. According to the treatise, when pretrial discovery materials have been filed with the court, public access is typically required. 68 64 Davis, supra note 58. Based heavily on Florida case law citations, the authors of the treatise declare that courts generally recognize a right of public access to the 65 Id 66 Id 67 Id 68 Discovery Documents, NEWSGATHERING AND THE LAW .02 (2007).

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21 fruits of the discovery process without providing specific information or documentation on how specific jurisdictions handle the issue.69Overall, in terms of the literature, there is a noticeable gap in the realm of balan cing access to court records against fair trial and privacy rights, especially pertaining to criminal discovery. Even further, no material appears to exist that gives the public a guide as to when criminal discovery records become public across the 50 stat es and District of Columbia. This void further exemplifies the need for a current and comprehensive update of state case law, statutory provisions and rules of procedure to determine what access rights to criminal discovery records the several states grant to the public. This paper proposes to fill such a void. With so little research apparently conducted on the issue of public access to discovery materials fifteen years after the Davis articles publication, and with another high profile murder case in Fl orida grabbing national headlines, the proposed research seeks to determine how many states grant a right of access to criminal discovery records through their statutes, case law or rules of court procedure. To accomplish this, the paper, after quickly explaining the discovery process by reviewing relevant criminal procedure literature, will briefly address access to courts, discussing the four key Supreme Court cases establishing the First Amendment rights of access to trials, jury selection and preliminar y hearings and the federal common law right of access to court records discussed heavily in the access to courts literature. Federal case law on access to discovery will also be addressed. Next, the fifty states and DC will be addressed. This will involve an analysis of state case law, state public records provisions and state rules of criminal procedure describing 69Id. at notes 243 246 (citing mostly Florida case law). In Florida, as the Charles Davis article points out, the publ ic has enjoyed both a common law and statutory right of access to criminal discovery for over 25 years. Therefore, a categorical statement deeming public access to criminal discovery records the norm across all jurisdictions does not seem justified.

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22 the discovery process using the Lexis Nexis database. Shepardization of these rules and statutes will provide relevant citations to find any sta te statutes or case law concerning the publics access to criminal discovery records. Key word searches to include the terms criminal discovery, public access/disclosure/records, pretrial discovery, will be used to fill any gaps. Each states findin gs will then be analyzed in light of the papers earlier discussions concerning public access to the judiciary and its competing interests. A full examination of these competing interests, however, is beyond the focus of this thesis. Thesis Overview This chapter provided an introduction to the issues surrounding public access to criminal discovery records against the backdrop of a highprofile murder case where these records have been made available. It also detailed the gap in present criminal discovery a ccess scholarship, and provided the research aims and the methodology that will be used to accomplish those aims. Chapter Two provides a primer on the criminal discovery process to offer the reader a better understanding of the records it generates. Chapte r Three explores the principles behind access to courts generally while reviewing Supreme Court access jurisprudence. Chapter Four contains the survey of state laws addressing access to criminal discovery records. Chapter Five concludes with an analysis of how the several states handle access to criminal discovery records, provides necessary considerations for sound access to criminal discovery records policy and suggests ideas for future research. Overall, the public availability of criminal discovery rec ords implicates three important pillars of American jurisprudence: public access to the judiciary, a defendants right to a fair trial and the protection of individual privacy. The apparent conflict of these three vital interests requires a coherent and re sponsible policy regarding the accessibility of criminal discovery records. Determining how the 50 states and the District of Columbia currently address this issue

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23 is the first step in developing and implementing sound criminal discovery access policies while preserving three vying values vital to the survival of the criminal system.

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24 CHAPTER 2 TRUTH AND SPORT: 1 (T)he ascertainment of truth the primary purpose of criminal trials is best achiev ed by well informed counsel, not by the surprise tactics of the sporting theory of justice. A BRIEF REVIEW OF THE PRETRIAL CRIMINAL DISCOVERY PROCESS 2 Introduction Blacks Law Dictionary defines discovery as the compulsory disclosure at a partys request, of information that relates to the litigation.3 More specifically, criminal discovery refers to the pretrial reciprocal exchange of material the prosecution may use in securing a conviction and information the defense may use in achieving an acquittal.4 This exchange between the prosecution and defense is an effort to optimize trial preparation and fairness.5 The records generated can include anything from a list of potential witnesses to the transcript of an alleged confession. The information is typically shared after a formal filing by the defense to comme nce the exchange, but it sometimes occurs via an informal agreement between opposing counsels.6 1 This chapter title is adapted from the title of a lecture given in 1963 by US Supreme Court Justice William Brennan. Justice Brennan advocated for expansive criminal discovery as a tool to help uncover the truth, despite its adverse affect on the gamesmanship of the criminal trial process. See William Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? 1963 WASH. L. QTR. 279 (1963). In any event, the records generated have the strong potential to contain information that could prejudice a defendants fair trial rights or infringe on the pri vacy interests of other individuals involved in the legal process. 2 Michael Moore, Criminal Discovery 19 HASTINGS L. J. 865, 871 (1968). 3 BLACKS LAW DICTIONARY 498 (8th ed 2004). 4 See, e.g., RUSSELL WEAVER, PRINCIPLES OF CRIMINAL PROCEDURE (3d ed.). 5 See, e.g., AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS, 11 1.1 (1996), available at http://www.abanet.org/crimjust/standards/discovery_blk.html#1.1 (last visited July 14, 2009). 6 Prior to using the discovery rules, the defense may utilize informal methods for obtaining information from the prosecution. RUSSELL WEAVER, PRINCIPLE S OF CRIMINAL PROCEDURE, 343 (3d ed.). In the absence of voluntary disclosure, the parties either must ask the court to order pretrial discovery or conduct discovery outside the purview of the court by making informal requests of each other. Id

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25 Literature Review The bulk of the literature discussing the criminal discovery process can be found in books, treatises and law review articles on criminal procedure generally. For example, Wayne LaFave and Jerold Israels multi volume set on criminal procedure devotes an entire chapter to criminal discovery, highlighting its historical development and legal foundations, but never addresses the issue of public disclosure of the records gener ated during the procedure.7 Likewise, the Depositions and Discovery section in the American Jurisprudence treatise also details the basics behind the discovery process, including whether a constitutional right of discovery exists, the scope of such discovery, and where and how general criminal discovery provisions are enacted.8 It too does not address public access to criminal discovery records. Many law review articles discuss the constitutionality and fairness of, and ways to improve, the criminal discovery process while also acknowledging the different types of records required to be exchanged across jurisdictions.9In sum, none of the literature reviewed contained any substantive discussion on public access to the records exchanged during the process. However, to better understand the process Yet again, these articles are silent on public access to criminal discovery records. 7 JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 814815 (West Group, 1999). See also CHRIS SLOBOGIN AND CHARLES WHITEBREAD, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 671698 (5th Ed.). Neither includes any discussion on public access to criminal disc overy, although they both devote an entire section to the legal development and the existing state of the criminal discovery process. See also JOHN L. WORRALL, CRIMINAL PROCEDURE: FROM FIRST CONTACT TO APPEAL (Jennifer Jacobson ed., 2004) (discussing crimi nal procedures in general, including a specific section on criminal discovery, but mentioning nothing about public access to the process). 8 23 AM. JUR. 2d Depositions and Discovery 231, 233, 234 (2004). 9 See e.g., Gary Pinter, Criminal Discovery and the Costs of Reproduction: A Burden Taxpayers Should Not Have to Bear 26 N. ILL. U. L. REV. 623 (2006); LaJuana S. Davis, Discovery In Criminal Cases: Obtaining Evidence And Information Necessary For An Effective Defense, 58 ALA. L. REV. 352 (1997); Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield To New Realities, 2006 WIS. L. REV. 541 (2006); Robert Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance 74 Calif. L. Rev. 1567 (1986); Robert Hochman, Brady v Ma ryland and the Search for Truth in Criminal Trials 63 U. CHI. L. REV. 1673 (1996).

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26 and the records it generates, this chapter will provide a brief overview of criminal discovery, including a review of the procedures historical development, legal foundation and current status. Early Criminal Discovery: Limited Defendant Access In early common law, there was no pre trial access by d efendants to information about the case against them.10 Yet early in United States h istory, Chief Justice John Marshall while presiding over Aaron Burrs treason trial recognized the importance of allowing defendants at least minimal pre trial access to information about their cases.11 Facing accusations of treason in 1807, Burr sought pre indictment access to letters exchanged between military officers of the United States and the President about Burrs apprehension as papers material to the defense.12 In the context of compelling the production of witnesses and documents, Chief Justi ce Marshall noted that allowing the defendant access to the process of the courts to compel, for example, the attendance of witnesses and the disclosure of papers material to the defense in the witnesss possession helped prepare for and secure an impartia l and speedy trial, as guaranteed by the Constitution.13 Information is material to the defense when it relates to the substance or the merits of the case.14 10 See, e.g., Robert Fletcher, Pretrial Discovery in State Criminal Cases, 12 STAN. L. REV. 293, 294 (1959). See also Michael Moore, Criminal Discovery 19 HASTINGS L. J. 865 (1968). Both of these articles, and much of the other criminal discovery historical literature, cite to Rex v. Holland, 100 Eng. Rep. 1248 (KB 1792), a Kings Bench case where the justices were said to be shocked that a defendant would even request pre trial access to the case against him. Moore at 865. 11 United States v. Burr. 25. F. Cas. 30 (CCD Va. 1807). Aaron Burr was accused of trying to begin his own western empire with New Orleans as its capital city and charged with treason. 12 Burr 25 F. Cas. at 32. 13 Burr 25 F. Cas. at 325. 14 BALLENTINES LAW DICTIONARY 781 (3d ed. 1969). Blacks Law Dictionary defines a material fact as one essential to the case, defense, application, etc., and without which it could not be supported. BLACKS LAW DICTION ARY 1128 (4th 1968).

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27 During the mid 1800s, England began to allow defendants limited pre trial access via various st atutory enactments.15 For example, a defendant was allowed to be present at preliminary hearings, to call his own witnesses to cross examine at a preliminary hearing and to inspect copies of depositions.16 In the United States, however, Justice Marshalls notion that some pre trial access was necessary to achieve a speedy and impartial trial vanished; and, by the next century, defendants still lacked any substantial pre trial access rights. Pretrial disclosure was the exception, not the rule.17 And although a handful of states had legislatively authorized limited forms of pretrial disclosure by the 1920s, the bulk of the discovery available originated either through informal exchanges between the parties or occurred incidentally during other pretrial procedure s.18 As Justice William Brennan later noted, despite the lack of codified provisions, a great deal of discovery still occurred during the day to day administration of the criminal justice system during this time period, mainly in the interest of achieving efficient results.19In 1927, Justice Benjamin Cardozo, while sitting on the Court of Appeals of New York, reviewed the early limits of pre trial disclosure in Lemon v. Supreme Court 20 15 Robert Fletcher, Pretrial Discovery in State Criminal Cases, 12 STAN. L. REV. 293, 295 (1959). In this case, a defendant indicted on murder charges sought pre tr ial review of multiple documents, reports and 16 Id. 17 See, e.g., Eugene Cerruti, T hrough the LookingGlass at the Brady Doctrine: Some New Reflections on White Queens, Hobgoblins and Due Process, 94 KY. L. J. 211, 218 (2005). Apart from a few isolated and exceptional cases, there was no criminal discovery, constitutional or otherwise. Id. 18 JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 814 (West Group, 1999). 19 William Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? 1963 WASH. L. QTR. 279 (1963). Brennan described the routine informal exchange of information as an attempt to dispose of cases without going all the way through to trial. prosecutors have not been loath to show their files to defense counsel...if disclosure offers the chance to that counsel will persuade the client to enter a plea 20 156 N.E. 84 (1927). See also Robert Fletcher, Pretrial Discovery in State Criminal Cases 12 STAN. L. REV. 293, 294 (1959) (stating that Historically, discovery was unavailable in either civil or criminal cases.).

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28 notes from witnesses and experts collected by the district attorney.21 Then Judge Cardozo denied the defendants motion for pre trial inspection since he said items being sought amounted only to mnemonic instru ments that may later be used by the prosecutor to merely illicit evidence.22 Cardozo first noted that both civil and criminal commonlaw courts relied on statutes to order pre trial document inspection.23 Some early statutes limited criminal pre trial disc losure to documents that are the subject of the charge. Others allowed enough disclosure as to prevent a failure of justice.24 No jurisdiction at the time ever, however, he said, contemplated extending pre trial disclosure to the notes and memoranda of the prosecutor, especially when those items would not be admissible as evidence. Cardozo said in Lemon that the court classified the documents in question as prosecutorial notes that would not be submitted at trial.25 Ultimately, although the court denied the discovery request in this instance, Cardozo did not deny criminal courts the inherent authority to compel discovery of documents in furtherance of justice.26 Cardozo, however, limited the flexibility of the courts to the disclosure of documents in support of the cause of action or in defense of the party seeking discovery.27 He ruled out discovery for the sole purpose of prying into the case of ones opponent.28Overall, early American jurisprudence supported very little court ordered pretrial acces s to caserelated information by defendants and their counsel. As Justice Cardozas decision in Lemon suggests, a defendant had no inherent right to discovery; the courts were limited in their 21 Lemon, 156 N.E. 84. 22 Id. at 87. 23 Id. at 84. 24 Id. at 85. 25 Id. at 85. 26 Id. at 86. 27 Id at 87. 28 Id.

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29 ability to compel discovery; and only items admissible as evide nce were discoverable.29 With the judiciary seemingly uninterested and unable to drastically alter the course of criminal discovery, legislatures took the lead in tackling the issue shortly after Justice Cardozos decision. Throughout the 1930s, a general r ecognition of the inadequacies of the limited criminal discovery schemes led many state legislatures to formally acknowledge some form of mostly limited pre trial disclosure.30 Despite many states recognizing some type of formal discovery procedure, discove ry remained reserved for particular instances and was still not yet a standard element of the pretrial process.31Criminal Discovery Comes Of Age: The Limited Versus Broad Debate As the criminal discovery process became better recognized in the states, i t was codified federally with the enactment of Rule 16, the primary federal criminal discovery procedure mechanism, added to the Federal Rules of Criminal Procedure in 1946.32 Like many of its contemporary state law counterparts, Rule 16 provided for limite d disclosure of specified materials upon the defendants request.33 29 Lemon, 156 N.E. 84. Pre trial disclosure under Rule 16 was limited to documents obtained by the government upon a showing of materiality by a defendant. In other words, only information that a defendant could show would be material to his defense were 30 Gary Pinter, Crimi nal Discovery and the Costs of Reproduction: A Burden Taxpayers Should Not Have to Bear 26 N. ILL. U. L. REV. 623 (2006). 31 JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 81415 (West Group, 1999). 32 See, e.g., Michael Moore, Criminal Discovery 19 HASTIN GS L. J. 865 (1968). 33 United States v. Peltz, 18 F.R.D. 394, 398 (S.D.N.Y. 1955) (reporting the original wording of Rule 16: Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items soug ht may be material to the preparation of his defense and that the request is reasonable. The order shall specify the time, place and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just.).

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30 discoverable.34 Scientific reports, blood tests and ballistics reports were out of Rule 16s reach, unless a showing of materiality was offered.35 At the time, showing that the items were merely necessary36 to th e defense did not satisfy the stricter materiality requirement.37 In 1966, the federal rule loosened, as scientific reports and confessions became discoverable without the need to prove that it was material.38While the general idea of pretrial disclo sure became more accepted and formalized throughout the states and in the federal system over the 1930s and 1940s pre trial discovery in civil suits enjoyed a successful expansion. The widespread acceptance of expanded pretrial civil discovery, led many commentators and jurists to consider utilizing similar policies in criminal cases. 39 Expanded pre trial civil discovery today calls for the exchange of, for example, the contact information of all potential witnesses, a list of people and entities likely to have discoverable materials including a list describing what materials might and summaries of any other evidence each side may offer.40 In light of the acceptance and successful implementation of broader civil discovery, a debate raged during throughout the 1950s and 1960s over whether the limited form or the broader, civil procedure like form of discovery should be implemented.41 34 JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 825 (West Group, 1999). Though some of the specific processes would differ, expanded criminal discovery, like its civil 35 Id. 36 In this instance, necessary refers to materials that are simply convenient, useful and proper in terms of preparing ones defense. BLACKS LAW DICTIONARY 1181 (4th 1968). Materiality refers to information that substantially relates to the merits of the case. See supra note 14. 37 Michael Moore, Criminal Discovery 19 HASTINGS L. J. 865, 870 (1968). 38 Id 39 ISRAEL, supra note 34, at 816. 40 The Justice Project, Expanded Discovery in Criminal Cases, available at http://www.thejusticeproject.org/~jmiller/wp content/uploads/polpack_discoveryhirez native fi le.pdf (last visited July 13, 2009). See also FED. R CIV. PRO. 26. 41 For an overall review of these issues, see William Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? 1963 WASH. L. QTR. 279 (1963). See also Robinson Everett, Discov ery in Criminal Cases: in Search of a Standard 1964 DUKE L. J. 477 (1964); Robert Fletcher, Pretrial Discovery in State Criminal Cases, 12 STAN. L. REV. 293, 294 (1959).

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31 counterpart, constituted an attem pt to avoid trial by surprise42 and downplay the sporting theory of justice while emphasizing the quest for truth.43Justice William Brennan, a stron g advocate for expansive discovery, summarized the leading arguments on each side while advocating for a broad criminal discovery process in a lecture delivered to the School of Law at Washington University in 1963. A two decade debate followed between those in favor of and those against expanded criminal discovery. 44 Proponents of broader discovery, he sai d, touted the ability to prepare more effectively for trial while also arguing that mandated pretrial disclosure could result in better resource management as more cases may end with pleas rather than progressing all the way to trial.45 Those advocating li mited discovery, according to Brennan, feared an increase in perjury by defendants and more witness intimidation because the criminal who is aware of the whole case against him will often procure perjured testimony in order to set up a false defense.46 Ex panded discovery critics also cautioned that the protection against self incrimination would prevent the defendant from providing to the prosecution any comparable information, rendering reciprocal discovery impossible.47Slowly, but surely, most states tur ned to a broader, civil like criminal discovery process. 48 42 William Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? 1963 WASH. L. QTR. 279 (1963). In various decisions, the U. S. Supreme Court acknowledged that disclosure and not 43 Id 44 Id 45 Id. at 288. 46 Id. at 289 (quoting Judge Arthur T. Vanderbilt in State v. Tune, 98 A.2d 881 (N.J. 1953)). 47 Id at 292. 48 JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 825 (West Group, 1999). The response to the d iscovery debate provided for defense discovery where it did not previously exist and expanded already established discovery procedures. Id

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32 suppression of relevant materials promoted the proper administration of justice.49 In fact, the Supreme Court ruled that some pre trial disclosure was actually required by the Constitution.50 In addition, an avalanche of judicial and scholarly materials favored civil like discovery for criminal cases.51 The initially quite limited federal Rule 16 was amended multipl e times to permit broader discovery and federal trial courts currently have discretion to order the discovery of certain items including statements by the defendant, scientific reports and other tangible objects under Rule 16.52 Yet by 1970, American Bar Association53 recommendations suggested a system of criminal discovery even broader than that allowed by the amended federal Rule 16.54 Some of the ABAs recommendations that went beyond the scope of Rule 16 included the defense providing to the prosecution all defenses it intends to use and the prosecution disclosing the names and addresses of any witness it intends to call and any statement of that witness it has already collected.55 49 See, e.g., Dennis v. United States, 384 U.S. 855, 870 (1966). Overall, a fter a long history of limited, almost non existent pre trial 50 Brady v. Maryland, 373 U.S. 83 (1963). 51 Id. 52 JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 825 (West Group, 1999). Rule 16 of the Federal Rules of Criminal Procedure requires the discovery by the defendant of: (1) any written statements or transcriptions of oral statements made by the defendant that are in the prosecutions possession; (2)the defendants prior criminal record; and (3)documents, photographs, tangible items, results from physical and mental evaluations, and other forms of real evidence considered material to the prosecutions case. Rule 16 provides for reciprocal prosecutorial discovery if the defendant requests items under parts 2 and 3. See JOHN L. WORRALL, CRIMINAL PROCEDURE: FROM FIRST CONTACT TO APPEAL 297 (Jennifer Jacobson ed., 2004). 53 The ABA criminal justice standards ha ve guided policymakers and practitioners working in the criminal justice arena. American Bar Association, About Criminal Justice Standards available at http://www.abanet.org/crimjust/standards/ ( last visited July 14, 2009). Although the ABA standards are not authoritative, they have had a substantial impact on states implementing criminal justice rules. See infra Ch. Four. 54 ISRAEL, supra note 52. See also AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE, DISCOVERY AND PROCEDURE BEFORE TRIAL (1st ed. 1970). 55 AMERICAN BAR ASSOCIATION, supra note 54.

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33 disc losure for defendants, discovery in criminal cases had finally become a standard element of the pre trial process.56At the state level, m ost jurisdictions have furnished rules of procedure governing discovery modeled after the f ederal rule though many sta tes do provide for more expanded access. 57 According to a study by the Justice Project, as of 2004, about one third of the states had implemented expansive discovery modeled after the ABAs standards.58 About a dozen states follow the more limited federal Ru le 16 guidelines.59 The remaining 20 or so states fall somewhere in between these two standards.60Though the general trend has seen a ccess continuing to become broader over time, residue of the limited versus broad debate persists today evidenced by commen tators, practitioners and scholars calling for the an almost unlimited, open file discovery process, allowing the defense access to almost the entire prosecution file, 61 while others still seek to specifically limit what may be exchanged between the prose cution and the defense.62The Criminal Discovery Process Today: How It Works And What Is Exchanged? As previously discussed, no general constitutional right to discovery exists for a criminal defendant.63 56 JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 825 (West Group, 1999). Therefore, a defendants right to discovery emanat es from either a rule of procedure adopted by the courts or a statutory provision, depending on the jurisdiction. However, according 57 See, e.g., The Justice Project, Expanded Discovery in Criminal Cas es, available at http://www.thejusticeproject.org/~jmiller/wp content/uploads/polpack_discoveryhirez native file.pdf (last visited July 13 2009). 58 Id. 59 Id. 60 Id. 61 JOHN L. WORRALL, CRIMINAL PROCEDURE: FROM FIRST CONTACT TO APPEAL 297 (Jennifer Jacobson ed., 2004). 62 Justice Project, supra note 57. 63 23 AM. JUR. 2d Depositions and Discovery 233 (2004).

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34 to the Fourteenth Amendments due process clause64 as interpreted by the U. S. Supreme Court, the prosecution must insure the fairness of a criminal trial by disclosing favorable evidence to the accused.65 At a minimum, the state must automatically disclose to the defense evidence that is material to the defendants guilt or innocence, according to the Court.66 To withhold such e xculpatory information would be a violation of the defendants due process rights.67Prosecutors throughout the country employ the pretrial discovery process to achieve this disclosure. 68 In addition, pretrial discovery, according to the Court, is a way to make a trial less a game of blindmans bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.69 According to the American Bar Associations Third Edition of Discovery Standards discovery procedures helps to inform both sides of the strengths and weaknesses of their case, reduce the risk of trial by ambush, focus the trial process on facts genuinely in dispute and minimize the inequities among similarly situated defendants.70In order to achieve thes e ambitions, criminal discovery is a two way street. 71 The exchange is reciprocal since, in an adversary system, it is unfair to mandate discovery for one side and not the other.72 At the federal level, Rule 16 of the Federal Rules of Criminal Procedure controls the discovery process and still only requires limited pre trial disclosure.73 64 nor shall any State deprive any person of life, liberty, or property, without due process of law U.S. CONST. amend. XIV, sect. 1. It provides 65 Brady v. Maryland, 373 U.S. 83 (1963). 66 Id 67 Id 68 Wm. Bradford Middlekauff, What Practitioners Say About Broad Criminal Discovery Practice 9 CRIM. JUST. 14 (1994). 69 United States v. Proctor & Gamble, 356 U.S. 677, 682 (1958). 70 AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS xvxvii (3rd Ed.). 71 JOHN L. WORRALL, CRIMINAL PROCEDURE: FROM FIRST CONTACT TO APPEAL 303 (Jennifer Jacobson ed., 2004). 72 JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 818 (West Group, 1999). 73 FED. R. CRIM. P. 16. See also Wm. Bradford Middlekauff, What Practitioners Say About Broad Criminal Discovery Practice 9 CRIM. JUST. 14 (1994). See also The Justi ce Project, Expanded

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35 both for the prosecution and defense to disclose to their counterparts specified materials during the pre trial process; 74 it does not call for open file access, where the defendant enjoys access to a prosecutors entire file.75 Rule 16 also does not specifically address disclosure of the materials exchanged during discovery to third parties.76The ABAs Discovery Standards on the other hand, leans to the more expansive side and advocates a vast exchange of materials between the prosecution and defense. 77 Earlier ABA Discovery Standards from the 1970s did address third party disclosure as they limited possession of the items exchanged to the relevant counsel, requiring discovery materials to remain in the attorneys exclusive custody.78 The ABA removed this requirement from its most recent standards, published in 1996, since it felt the recommendation interfered with an attorneys ability to prepare his or her ca se, which often requires providing materials obtained during discovery to investigators, experts and consultants and sometimes even the defendant.79 Discovery in Criminal Cases, available at Despite http://www.thejusticeproject.org/~jmiller/wp content/uploads/polpack_discover yhirez native file.pdf (last visited July 13, 2009). 74 These materials include statements made by the defendant, FED. R. CRIM. P. 16 (a)(1)(A,B); tangible objects and reports FED. R. CRIM. P. 16 (a)(1)(E); and, export testimony, FED. R. CRIM. P. 16 (a)(1 )(F), all of which must be provided to a defendant upon his request. The defendant must disclose items within his possession that he intends to use at trial, such as photographs, books and papers. FED. R. CRIM. P. 16 (b)(1)(A). Information pertaining to wi tnesses is not available to either the prosecution or defense. FED. R. CRIM. P. 16 (b)(2)(B). The complete text of Rule 16 is widely available and is directly reflected in the above summary. 75 For a discussion on openfile criminal discovery, see, e.g., Th e Justice Project, Expanded Discovery in Criminal Cases, available at http://www.thejusticeproject.org/~jmiller/wp content/uploads/polpack_discovery hirez native file.pdf (last visited July 13, 2009). Openfile discovery grants the defense access to all unprivileged information that (with due diligence) is known or should be known to the prosecution, law enforcement agencies acting on behalf of the prosecution, or other agencies such as forensics testing laboratories working for the prosecution. Id. 76 FED. R. CRIM. P. 16. 77 See generally AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS (3rd ed.). 78 AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS 4.3 (2d. ed. 1978). 79 AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS, 116.4 (1996), available at http://www.abanet.org/crimjus t/standards/discovery_blk.html#6.4 (last visited July 14, 2009).

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36 the ABAs removal of this recommendation, comparable clauses can still be found in the criminal disc overy provisions on the books in several states.80Specifically what is, and what is not, subject to discovery in each state and why, according to the respective state rule or statute, is beyond the aims of this paper, which seeks solely to study the publ ic access granted to such records. Overall, the typical discovery provisions used by the states mandate the reciprocal exchange of material the prosecution will use in securing a conviction and the information the defense will use in achieving an acquittal 81 Though specific rules of procedure and other statutory provisions controlling discovery vary across jurisdictions, most require the government to disclose (1) prior statements of the defendant that are in possession of the prosecution or other governme nt agencies such as the police department; (2) a copy of the defendants prior criminal record; (3) documents and tangible objects the prosecution intends to use at trial; and (4) scientific reports and test such as autopsy reports and finger print analysi s.82 In return for this information, the defense is often required to inform the prosecution of the defendants intent to raise certain defenses such as alibi, insanity, self defense or entrapment.83During the initial stages of a crimina l case, the defense will usually file a demand for discovery with the court, seeking whatever materials are mandated by the applicable rule of procedure while also informing the prosecution of its willingness to participate in reciprocal discovery. 84 80 See infra Ch. Five. The prosecution then r esponds with a list of materials it has in the categories 81 RUSSELL WEAVER, PRINCIPLES OF CRIMINAL PROCEDURE 308 (3d ed.). 82 Id at 345. 83 WEAVER, supra note 81. 84 The author reviewed court files at the Alachua County Courtho use in Gainesville, FL. Out of the cases reviewed, each included a demand for discovery submitted by the defense and a response by the state both asking for reciprocal discovery and answering the defenses demand. Most actual documents discussed in the dis covery motions do not appear in the actual court file on file at the courthouse, though

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37 specified by the applicable rule of procedure, informing the defense attorney where and when these items can be viewed and copied.85Overall, c riminal discovery provides the primary mechanism for th e exchange of information between the prosecution and defense. It can begin as soon as formal charges are filed. Most jurisdictions contain a continuing duty to disclose provision in their criminal discovery procedural rules, meaning that discovery must ta ke place throughout trial. 86Criminal Discovery And The Casey Anthony Case Defendants in Florida are entitled to broad criminal discovery disclosure.87 In the Casey Anthony case, defense attorney Jose Baez has filed multiple demands for discovery. The Anthon y defense team has subsequently received thousands of pages of documents as well as a collection of digital records including audio, video and computer files all containing information that may or may not eventually be filed in open court.88 witness lists and supplemental discovery motions do appear. The process is also described generally throughout the literature. See, e.g., RUSSELL WEAVER, PRINCIPLES OF CRIMINAL PROCEDURE 308 (3d ed.); JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 814 815 (West Group, 1999); CHRIS SLOBOGIN AND CHARLES WHITEBREAD, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 671698 (5th Ed.). See also 23 Am. Jur. 2d Depositions and Discovery 231, 233, 234 (2004). The files rang e from digital photos posted by Anthony on various web sites obtained by authorities during the criminal investigation, video interviews between Anthony and law enforcement officials and witness lists, to the official crime scene photos taken by police at the site where Caylees body was discovered. Financial 85 Id 86 See, e.g. AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS, 11 4.1 (1996), available at http://www.abanet.org/cri mjust/standards/discovery_blk.html#4.1 (last visited July 14, 2009). 87 See, e.g., The Justice Project, Expanded Discovery in Criminal Cases, available at http://www.thejusticeproject.org/~jmiller/wp content/uploads/polpack_discoveryhirez native file.pdf (last visited July 13, 2009). See also FLA. R. CRIM. P. 3.220. 88 Not everything included in the discovery exchanged between the prosecution and defense will end up being presented in open court. See supra p. 35. See also Marva Hinton, Defense Team Responds to Discovery, WDBO.com, March 6, 2009, available at h ttp://wdbo.com/localnews/2009/03/defense team responds to disco.html (last visited July 9, 2009).

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38 and medical data, third party contact information and attorney client interaction details can also be found throughout the discovery materials. Since Casey Anthony was charged with a few minor offens es while under investigation in the death of her daughter, some of the discovery of materials relevant to the murder charge became available to both the defense, and the public, even before formal homicide charges were filed. Appendices A and B contain a s mall collection of the thousands of pages of discovery provided to the Casey Anthony defense team in response to numerous discovery requests. The items were obtained from various Orlandoarea news agency websites such as WESH 2, the Orlando Sentinel and Ce ntral Florida News 13. A review of these materials will give the reader a first hand appreciation of the types of material exchanged during discovery and the competing values the public availability of these records implicates.89Summary The criminal disc overy process has developed from a near non existent procedure to an ordinary process occurring during the adjudication of cases in the criminal justice system. With most cases ending in plea deals,90 and the information exchanged between the prosecution and defense influencing many of the se pleas,91 89 See supra Appendix A and Appendix B. the pre trial criminal discovery process currently plays a vital role in the criminal justice system. Because of its importance to the disposition of criminal cases, public access to the criminal discovery proces s could serve to better inform the 90 Concrete plea statistics are difficult to obtain. However, a Bureau of Justice Statistics Report from 2002 found tha t 95% of all state court felony convictions ended in a guilty plea. Matthew Durose and Patrick Langan State Court Sentencing of Convicted Felons 2002, Dept. of Justice, available at http:/ /www.ojp.usdoj.gov/bjs/pub/ascii/scscfst.txt (last visited July 13, 2009). 91 According to a former state attorney in Florida, It is the discovery that drives the plea if the defense attorney knows what the state hasthat may compel a plea. Likewise, if the defendant has evidence that disproves guilt it may induce the state to reduce the charge. E mail from Bradley Burnette, attorney, to Brian Pafundi, Graduate Student, University of Florida (Jan. 21, 2009, 10:10 EST)(on file with author).

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39 public on the functioning of the criminal justice system. However, with the amount and content of the records typically exchanged during the process, the fair trial rights of a defendant and third party privacy interests of others involved will often clash if the public has access to the entire criminal discovery record.

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40 CHAPTER 3 THE AMERICAN TRADITION OF OPEN COURTS THROUGH SUPREME COURT JURISPRUDENCE "Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity."1 Introduction Journalists consistently report about crimes, criminal investigations and trials; members of the public consistently read, watch and listen to such stories. The hoopla surrounding high profile trials and cases, such as the disappearance of Natalee Holloway, the Scott Peterson murder investigation and trial, and the Casey Anthony saga are prime examples of the medias preoccupation with crimes and the people who com mit them. The ability to access both court records and court proceedings is pivotal to a journalists complete reporting of these crimes and investigations. Reporting on the criminal justice system and courts generally, enhances the quality of justice, e ducates the public about the judicial process, and inspires public confidence in the system.2Access to the criminal justice process is a derivative of the overall open government ideal. Access is also pivotal to the ideal of self governance and the publics monitoring of and appreciation for, not only the judiciary, but other agencies and offici als involved in the criminal justice process, including law enforcement officials and prosecutors. 3 1 LORD ACTO N, THE CORRESPONDENCE OF LORD ACTON AND RICHARD SIMPSON VOLUME II 114 (2008). Public access to government records and affairs in general ser ves two of the values that scholars believe are furthered by free expression and the First Amendment: the checking value and the 2 See, e.g., Andrew Goldstein, Sealing and Revealing: Rethinking the Rules Governing Public Access to Information Generated Through Litigation, 81 CHIKENT L. REV. 375, 38183 ( 2006). 3 Id. See also Richard Peltz, The Arkansas Proposal on Access to Court Records: Upgrading the Common Law with Electronic Freedom of Information Norms 59 Ark. L. Rev. 555, 559560 (2006).

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41 value of self governance.4 The checking value, best formulated by Professor Vincent Blasi in The Checking Value in First Amend ment Theory,5 refers to the peoples ability to monitor the potential abuse of official power.6Though Blasi does recognize other purposes of free expression, such as individual autonomy, 7 diversity8 and self government,9 his article focuses on the role of free expression in keeping the government in line.10 His central premise is that the abuse of official power is much more serious and potentially harmful than the abuse of private power.11 This is so because of the governments ability to employ legitimized violence12 and because people in public positions are morally obligated to serve the general welfare and to uphold the fundamental principles of the polity.13 Because there is no equivalent private force to match the governments ability to keep the public in check, (T)he check on government must come from the power of public opinion.14 Ultimately, Blasi argues that this monitoring of the actions of public officials, accomplished via free expression, will lessen the corrupting effect positions of pow er have on people.15 4 The First Amendment reads, Congress shall make no lawabri dging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. U.S. CONST. amend. I. 5 Vincent Blasi, The Checking Value in First Amendment Theory 2 AM. B. FOUND. RES. J 521 (1977). 6 Id 7 Id. at 544. ...certain speech activities are valuable because they are integral to the process by which persons consciously choose from among alternatives, a process which is regarded as valuable in and of itself because it f igures prominently in our vague notions of what it means to be human. Id. 8 Id. at 548. ...the best test of truth is the power of the thought to get itself accepted in the competition of the market... Abrams v. United States, 250 U.S. 616, 630 (1919) (H olmes, J., dissenting). 9 Blasi, supra note 5, at 554. The First Amendment is designed to protect speech that enhances the peoples ability to assume to the responsibilities of governing. Id. 10 Id 11 Id at 538. 12 Id 13 Id. at 540. 14 Id at 539. 15 Id

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42 Not only does access enable the public to carry out its checking role, but access enhances free expressions impact on self governance as well. The idea that free expression, by facilitating the fulfillment of popular sovereignty, posit ively contributes to self governance, is most often linked to Professor Alexander Meiklejohn.16 He believed that the public availability of truth is essential to self governance and that the First Amendment facilitates the publics understanding of the i ssues which bear upon our common life.17 According to Meiklejohn, the First Amendments purpose is to give to every voting member of the body politic the fullest participation in understanding of those problems with which citizens of a self governing soci ety must deal.18 Meiklejohn felt that denying information to citizens would lead to illconsidered and ill balanced decisions throughout the self governance process.19Literature Review Ultimately, Meiklejohn thought that an informed electorate was essential to the proce ss of self government. The general topic of public access to the judiciary has been covered immeasurably by a plethora of scholars, commentators and jurists alike. The collection of works reviewed, including books, treaties and la w review articles, spans a wide array of issues, including the history, legal development and theoretical basis of public access. Many authors at the very least analyzed the common law and constitutional foundations of the publics access rights. Some of t he literature examined the competing interests that often interfere with the publics access to the judiciary.20 16 MATTHEW BUNKER, JUSTICE AND THE MEDIA: RECONCILING FAIR TRIALS AND A FREE PRESS 7 (1997). 17 ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELFGOVERNMENT 88 89 (1948). 18 Id 19 Id. at 26 20 See, e.g., Kristen Blankley, Are Public Records Too Publ ic? Why Personally Identifying Information Should Be Removed from Both Online and Print Versions of Court Documents 65 OHIO ST. L. J. 413 (2004); Peter Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Infor mation 79 WASH. L. REV. 307 (2004); Daniel Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 MINN. L. REV. 1137 (2002); Melissa Coffey,

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43 O thers literature focused on access to specific information and procedures other than trials, including pre trial and appellate actions.21 Despit e a massive body of public access to the judiciary literature, the only works found to address the specific issue of public access to pre trial criminal discovery records were the article and treatise mentioned in Chapter 1.22 With such a dearth of scholar ship specifically addressing public access to criminal discovery, literature focusing on public access to the civil discovery process was also reviewed. 23 Administrative Inconvenience and the Medias Right to Copy Judicial Records 44. B.C. L. REV. 1263 (2003); MATTHEW BUNKER, JUSTICE AND THE MEDIA: RECONCILING FAIR TRIALS AND A FREE PRESS (1997); Kathleen Olson, Courtroom Access After 9/11: A Pathological Perspective 7 COMM. L. & POL'Y For the most part, these works focused on the United States Supreme Court decision that specifically d enied a common law or First Amendment right of access to civil discovery records (this case is addressed later in this chapter). Ultimately, access to the civil discovery appears to be a settled issue, whereas access to criminal discovery is overlooked. 461 (2002) ; Natalie Gomze Velez, Internet Access to Cour t Records: Balancing Public Access and Privacy, 51 LOY. L. REV. 365, 371 (2005). 21 See, e.g., Lynn Oberlander, A First Amendment Right of Access to Affidavits in Support of Search Warrants 90 COLUM. L. REV. 2216 (1990); Arthur Miller, Confidentia lity, Protective Orders and Public Access to the Courts 105 HARV. L. REV. 427 (1991); Sarah Hutt, In Praise of Public Access: Why the Government Should Disclose the Identities of Alleged Crime Victims 41 DUKE L. J. 368 (1991); Anne Cohen, Access to Pretrial Documents Under the First Amendment 84 COLUM. L. REV. 1813 (1984); Armindo Bepko, Public Availability or Practical Obscurity: The Debate Over Public Access to Court Records on the Internet, 49 N.Y. L. SCH. L. REV. 967 (2005); Nicole Dulude, Unlocking Americas Courthouse Doors 11 ROGER WILLIAMS U.L. REV. 193 (2005); Richard Peltz, The Arkansas Proposal on Access to Court Records: Upgrading the Common Law with Electronic Freedom of Information Norms 59 ARK. L. REV. 555 (2006). 22 See infra pp. 19 20. 23 See, e.g., Seymour Moskowitz, Discovering Discovery: Non Party Access to Pretrial Information in the Federal Courts 1938 2006, 78 U. COLO. L. REV. 817 (2007); Howard Erichson, Court Ordered Confidentiality in Discovery, 81 CHI.KENT L. REV. 357 (2006); Richard Marcus, Recognizing (At Last) That the Federal Rules Do Not Declare that Discovery is Presumptively Public, 81 CHI.KENT L. REV. 331 (2006); Andrew Goldstein, Sealing and Revealing: Rethinking the Rules Governing Public Access to Information Genera ted Through Litigation, 81 CHIKENT L. REV. 375, 38183 (2006); Katherine Pownell, The First Amendment and Pretrial Discovery Hearings: When Should the Press Have Access? 36 U.C.L.A. L. REV. 609 (1989); Diane Bratvold, Protective Orders and the Use of Discovery Materials Following Seattle Times, 71 MINN. L. REV. 171 (1986); Susan P. Koniak, Are Agreements to Keep Secret Information Learned in Discovery Legal, Illegal or Something in Between?, 30 HOFSTRA L. REV. 783 (2002).

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44 Supreme Court Access To Courts Jurisprudence Over the hundreds of pages of literature reviewed, a collection of seminal Supreme Court cases kept reappearing. Since the late 1970s, these cases have extrapolated the interests and standards involved in dete rmining access to the criminal courts while recognizing constitutional and common law rights of access to certain records and proceedings of the criminal courts. Both a two prong test and a strict scrutiny analysis emanate from those decisions. The twopro ng test is a threshold matter, answering whether a qualified First Amendment right of access attaches to a particular criminal proceeding.24 The strict scrutiny analysis is used to determine if closure is constitutional, but only if the First Amendment or c ommon law right of access first attaches to the proceeding/records in question.25Access to courts is not a novel concept. From the days of the Roman Empire Though none of the cases specifically addressed access to criminal discovery, they are discussed below for the interests and standards they employ to determine if access is ap propriate and to provide context for the pending discussion on access to criminal discovery records. 26 to the era before the Norman Conquest of England,27 trials typically were open t o the public. Despite many changes to the function of the judiciary over time, trials have remained open to all who cared to observe.28 Historical documents verify the openness of trials in colonial Virginia29 24 See e.g. Twenty Second Annual Review of Criminal Procedure, 81 GEO. L.J. 1267 at 13881389 (1993). as well as a 25 Id at 1390. 26 Table 1 of the Roman Twelve Tables, the first landmark in the history of Roman law, states that 1) a judge shall announce a settlement to a case and 2) the parties t o the dispute must appear and state the outline of their case in the meeting place or Forum before noon. Thus, these two stipulations provided for an open dispute resolution procedure. See NAPHTALI LEWIS AND MEYER REINHOLD, ROMAN CIVILIZATION: THE REPUBL ICAN AND THE AUGUSTAN AGE 108 (3d ed.). 27 Freemen in England were compelled, in a manner similar to present day jury duty, to participate in deciding cases that appear before the county court or the court of the hundred. Thus, the courts were open to the public. See Richmond Newspapers v. Virginia, 448 U.S 555, 565 (1980). 28 Richmond Newspapers, 448 U.S. at 565. 29 Id at 567.

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45 codified right to attend trials in the province of West New Jersey.30 Overall, after the American Revolution, when the laws of the United States were adopted, trials both in England and the former colonies had long been assumed to be open.31 Despite a long tradition of openness, the United States Supreme Court did not recognize a federal common law right of access to judicial records until 1978, stating in Nixon v. Warner Communications that the courts of this country recognize a general right to inspect and copyjudicial records and docume nts.32 And it took two more years for the Court to decree a constitutional right of access to criminal trials, ruling in Richmond Newspapers v. Virginia that there was a guaranteed right of the public under the First and Fourteenth Amendments to attend a criminal trial.33Common Law Access to Courts : Nixon v. Warner Communications The first case, Nixon v. Warner Communications arose during the criminal trials of some of President Nixons former advisers for their role in the Watergate scandal and addresse s the federal common law right of access to courts.34 Twenty two hours of tape recorded conversations from the Oval Office in the White House and the Presidents private office in the Executive Office Building were played in open court and the reels containing the tape were admitted as evidence.35 30 Richmond Newspapers, 448 U.S. at 567. Transcripts of the recordings, though not formally admitted as evidence, were provided to the jury and to the journalists and members of the public present in the courtroom; the transcripts were subsequently dissemi nated to mass audiences via the mass 31 Id at 569. 32 Nixon, 435 U.S. 589, 597. 33 Id at 580. 34 Id at 594. 35 Id at 594.

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46 media.36 Six weeks into the trial, Warner Communications sought permission to copy, broadcast and sell to the public the portions of the tapes played at trial.37The trial court originally ruled that access to the tapes in question should only be granted when the trial ended, in accordance with the federal common law privilege of public access to judicial records. 38 It ordered the parties to submit proposals for copying and access that would minimize overcommercialization and administrative inconvenience.39 Upon completion of the trial, the court delayed the release of the tapes, because, it said, the defendants pending appeals could be prejudiced if those materials were widely available.40 On appeal, the U.S. Court of Appeals for the D.C. Circuit stressed the general common law privilege to inspect and copy judicial records while assigning the burden of proving that justice required limiting access to the party seeking that limitation.41 In this instance, the appellate court did not think the mere possibility of prejudice to the defendants rights upon retrial outweighed the publics right of access.42 Former President Richard Nixon, who recorded the tapes, challenged this decision and the U.S. Supreme Court agreed to review the holding that the commonlaw right of access to judicial records requires release of the tapes in question.43According to the 54 decision announced by Justice Lewis Powell that ultimately denied access to the tapes, both parties conceded that a commonlaw right of access to judicial records existed, but they differed sharply over the extent of this right and when access must yield to 36 Id at 594. 37 Nixon, 435 U.S. at 594. 38 Id at 595. 39 Id. at 595. 40 Id at 595. 41 Id at 596. 42 Id ., quoting United States v. Mitchell, 179 U.S. App. D. C. 293, 551 F.2d 1252 (1976) at 302 or 1261). 43 Id

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47 competing interests.44 Justice Powell, after recognizing that the common law right of access does exist but is not absolute, lamented over the lack of judicial opinions addressing the factors to be weighed in determining whether access is appropriate.45President Nixon offered several reasons in support of denying access: first, a propriety interest in the sound of his voice; Without specifically delineating the contours of the commonlaw right, Justice Powell balanced the interests in preventing the release of the records in question against allowing access to them. 46 second, privacy concerns;47 third, executive privilege;48 and finally, a claim that it would be improper for the courts to facilitate the commercialization of these White House tapes.49 In favor of access, the Court recognized the medias assertion that releasing the tapes in question would likely pr ovide an incremental gain in public understanding of an immensely important historical occurrence.50Despite discussing the interests both for and against access, Justice Powell did not decide how that balance would be struck in this specific case and i nstead deferred to the Presidential Recordings Act as a congressionally approved way to furnish the public with access to the specific tapes in question. 51 That Act, briefly, established an administrative process by which Presidential records and materials would be released to the public.52 44 Nixon, 435 U.S. at 597. According to the Court, since Congress passed a federal statute promulgating a method to publicly release the tapes that 45 Id 598599. 46 Id at 600. 47 Id President Nixon claimed that snippets of the recordings would be broadcasted out of context, that the tapes would not be protected from cutting, splicing or editing and that the strong desire to both educate and titillate the public would infringe on his privacy and result in embarrassment and anguish over conversations he and the other participants had every reason to believe would remain confidential. Id at 60001. 48 Id at 601. 49 Id 50 Id at 602. 51 Id at 603. 52 Id at 603.

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48 law ought to control this decision. As such, the Court denied the medias release request,53 ruling t hat, in this instance, (t)he presence of an alternative means of public access tips the scales in favor of denying release. However, the U.S. Supreme Court formally recognized a federal common law right of access to judicial records 54 when it ruled tha t the common law right of access to judicial records does not authorize release of the tapes in question.55 State common law will be addressed in Chapter Four. Constitutional Access to Courts Shortly after its Nixon ruling, the Courts decision in Gannett Co. v. DePasquale a Sixth Amendment public trial case, offered a precursor to providing constitutional protection for access to courts.56 Overall, the DePasquale opinion demonstrated a deep disagreement over the scope, timing, constitutional source and purpose of public access to trials.57 The question before the Court was whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding that the prosecution, defense and the judge all agr eed to close.58 Justice Potter Stewart, writing for the 5 4 majority, denied that the Constitution provided any right of access to trials for the public and limited the Sixth Amendments guarantee of a public trial to the individual defendant.59 53 Nixon, 435 U .S. at 605. Ultimately, Justice Stewart determined that even if such a public right of access were to exist either based on the 1st, 6th or 14th Amendment the trial court judge issuing the closure order balanced that access 54 Id. at 605. 55 Id. at 608. 56 443 U.S. 368 (1979). 57 See, e.g., Kathleen Olson, Courtroom Access After 9/11: A Pathological Perspective 7 COMM. L. & POL'Y 461 (2002) 58 DePasquale 443 U.S. at 37071. 59 Id. at 379380.

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49 right against the defendants right to a fair trial when determining the latter outweighed the former, and thus properly closed the proceeding.60This 1979 decision resulted in a groundswell of disapproval from newspapers, broadcasters, other media organizations and legal commentators. 61 Despite this condem nation the decision appeared to have an immediate impact on judges across the country, with two key cases relying on Gannett to support closure orders being decided in state courts within a week of the decision and over 100 trials closed during the next ye ar. Within that same year, the Supreme Court had a chance to revisit the constitutional right of access to courts issue as one of the early state court cases decided based on Gannett prompted the Court to grant certiorari .62 Richmond Newspapers v. Virgin ia The Supreme Court finally, in 1980, determined that the First Amendment presumptively protected a qualified right of access to trials absent an overriding demonstration of the potential harm to a defendants fair trial rights.63 The controversy arose aft er a judge entered a closure order, at the request of accused murder John Stevenson, during the fourth attempt to try the defendant.64 The first three attempt s to try Stevenson resulted in one overturned conviction and two mistrials.65 Richmond Newspapers Inc. challenged the closure order in the fourth trial unsuccessfully and the closeddoor trial proceeded.66 60 DePasquale 443 U.S. a t 393. Upon completion of the trial and a verdict 61 See, e.g., Kathleen Olson, Courtroom Access After 9/11: A Pathological Perspective 7 COMM. L. & POL'Y 461 (2002) 62 Id. 63 Richmond Newspapers v. Virginia, 448 U.S 555, 564 (1980). 64 Id 65 Id 66 Id

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50 of not guilty, the company again challenged the closure order, and was denied relief by the Virginia Supreme Court. Subsequently, the corporation appealed to the U. S. Supreme Court.67A plurality opinion penned by Chief Justice Warren Burger side stepped the Sixth Amendment based Gannett decision in recognizing a presumptive public right of access to trials bas ed on the First Amendment. In doing so, the Court first reviewed the reasons for, and the historical tradition behind, public trials. The openness of a trial gives assurance that the proceedings were conducted fairly to all concerned, and it discouraged p erjury, the misconduct of participants, and decisions based on secret bias or partiality 68 while also offering an outlet for community concern, hostility and emotion.69 The Courts opinion, citing reports by various foreign observers who were impressed wit h the openness of English courts following tours of that country during the 18th and 19th centuries, further surmised that the publics confidence in the administration of justice benefits from the publics oversight of the judicial process.70 In fact, the very purpose of the Fist Amendments guarantees of free speech and expression71 is to assure individuals the liberty of communicating effectively on matters related to the operation of the government.72 Even further, open courts, according to Burger, serve a prophylactic purpose, informing the public on the functioning of the criminal justice system.73 Recognizing both the tradition and function of open trials, the three justice plurality found that the First Amendment can be read as protecting the right of everyone to attend trials in order to give meaning to those explicit guarantees aimed at enhancing effective public discourse.74 67 Richmond Newspapers 448 U.S. at 564. 68 Id 69 Id at 571. 70 Id at 570. 71 See supra p. 3941. 72 Richmond Newspapers 448 U.S. at 575. 73 Id 74 Id.

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51 In countering Virginias argument that the Constitution does not expressly protect the publics right of access to criminal trials, Chief Justice Burger, joined by Justices Byron White and John Paul Stevens, reasoned that, since courthouse doors had long been open at the time Congress passed, and the several states ratified, the Bill of Rights, the First Amendment precludes government from summarily closing courtroom doors.75 Though this right is not explicitly stated in the plain text of the First Amendment, the Court has in the past, according to the plurality, acknowledged the existence of implicit rights emanating from enume rated guarantees,76 such as the right of privacy the Court recognized in Griswold v. Connecticut and its progeny. The Court declared that the qualified right to attend criminal trials, found implicitly in the penumbras of the First Amendment is a similar gu arantee.77 In specifically dealing with the trial courts closure order, which lacked any findings to support such an action, the Court noted some of the available alternatives to ensure fairness, such as witness and jury sequestration, before declaring that absent an overriding interest articulated in findings, a criminal trial must be open to the public.78Overall, a majority of the court (five Justices in two opinions) agreed that a First Amendment right of ac cess to criminal trials existed. Justice Wil liam Brennans concurrence, joined by Justice Thurgood Marshall also focused on the dual considerations of tradition and function. Brennans opinion, much like Burgers plurality, focused on both historical practice and the importance of public access to the trial itself. 79 After recognizing that history strongly favors open trials, Justice Brennan looked at the functional importance of access to the same.80 75 Richmond Newspapers 448 U.S. at 576. 76 Id at 579. 77 Id at 580. 78 Id. at 580. 79 Id. at 589. 80 Id at 589593.

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52 Trials are a means of fulfilling the notion that justice must satisfy the appearance of justice.81 Thus, what transpires in the court room is a matter of public interest and public access to court s acts as an effective check on the functioning of those proceedings.82The progeny of Richmond Newspapers The Supreme Court quickly articulated a clearer visi on of a qualified constitutional right of access to criminal trials only a few years after Richmond Newspapers In 1981, just a year later, in Globe Newspaper Co. v Superior Court a Court majority invalidated a Massachusetts law that required closure in all cases involving a sexual assault against a minor.83 The Massachusetts Supreme Judicial Court ruled that sexual assault cases were precluded from the access standard set forth by the U.S. Supreme Court in Richmond Newspapers .84 On appeal by the Boston Globe the U.S. Supreme Court disagreed with the highest court in Massachusetts, holding a statutory based mandatory closure rule unconstitutional.85 In an opinion authored by Justice Brennan, the Supreme Court again noted that criminal trials have historicall y been open and that this openness plays a particularly significant role in the functioning of the judicial process and the government as a whole.86 The public, if allowed to attend criminal trials, serves as a check on the judicial process, a pivotal asp ect of the American system of self government.87Though the Court held that the publics right of access is not absolute, it reasoned that the right could only be denied in order to achieve a compelling government interest when a court 81 Richmond Newspapers 448 U.S. at 595 (qu oting Offutt v. United States, 348 U.S. 11, 14 (1954)). 82 Id at 596. 83 Globe Newspaper Co. v. Superior Court, 457 US 596 (1982). 84 Id 85 Id 86 Id at 60506. 87 Id at 606.

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53 closure was narrowly tailored and directed to achieve that interest.88 Despite the Court s recognition that the governments interest in protecting the wellbeing of a minor was a compelling one,89 it did not agree that mandatory closure was the least restrictive means to achieve such a goal since the trial court could simply determine if closure is necessary on a caseby case basis.90During the next five years, in two different cases, the Court broadened the First Amendment right of access to include both pretrial processes of voir dire, In effect, the Court endorsed a case by case analysis at the trial court level to determine whether a closure order sought satisfied a compelling state interest and was narrowly tailored to serve that interest. 91 the screening of potential juror s to sit for a trial, and preliminary hearings.92 In the first case, PressEnterprise v. California ( Press I ), the Court, similar to its analysis in Richmond Newspapers first examined the ancient roots of jury selection proceedings, concluding that such an event has historically been open.93 It next recognized that the publics right to attend jury selection promotes fairness.94 Since jury selection has been historically open and because this openness promotes the procedures proper functioning, the Court held that a presumption of public access applies.95 88 Globe Newspaper Co., 457 U.S. at 606 607. With this presumption of access in place, the Court concluded that openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values 89 Id. at 607. 90 Id. at 607608. 91 Pres s Enterprise v. California (Press I) 464 U.S. 501 (1984). 92 Press Enterprise v. California (Press II) 478 U.S. 1 (1986). 93 MATTHEW BUNKER, JUSTICE AND THE MEDIA: RECONCILING FAIR TRIALS AND A FREE PRESS 98 (1997). 94 Press II 478 U.S. 1. 95 Id.

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54 and is nar rowly tailored to serve that interest.96 It is the trial courts responsibility to articulate facts warranting closure, based on this standard.97The same parties were before the Court two years later again in Press Enterprise v. California ( Press II ), whe n the media challenged a trial court closure of a preliminary hearing in an effort to protect a defendants Sixth Amendment fair trial rights. 98 This time around, the Court ruled that since preliminary hearings function as a minitrial of sorts and has tra ditionally been an open procedure, the First Amendment right of access applies to the pretrial process in question. Closure could only be upheld if there is a substantial probability that the defendants right to a fair trial will be prejudiced by publicity and if reasonable alternatives to closure cannot adequately protect such a right.99Chief Justice Burgers majority opinion in Press II stressed the ancient common law principle which attempted to control the conduct of those who attended trials r ather than close the proceedings altogether. 100 When analyzing whether a preliminary hearing as conducted by the state of California has historically been open, the Court declared that since the Aaron Burr trial of 1807 to the present day, the near uniform practice of state and federal courts has been to conduct preliminary hearings in open court.101 96 Press I 464 U.S. at 510. Thus, preliminary hearings passed the tradition test. In acknowledging that some government processes would be completely frustrated if conducted openly, the Court pointed to the need for secrecy in grand jury proceedings for the process to operate successfully in acknowledging that some government processes would be 97 Press II 478 U.S. 1. 98 Id 99 Id at 14. 100 Press II 478 U.S.at 8. 101 Id

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55 completely frustrated if conducted openly. 102 However, the Court went on to note that many governm ental processes operate best under public scrutiny.103 These include trials, jury selection and now, pre trial hearings .104In formalizing the two prong screening in Press II the U. S. Supreme Court recognized that its decisions dealing with claims of a Firs t Amendment right of access to criminal proceedings have emphasized two complimentary considerations. 105 These considerations appear throughout Richmond, Globe Press I and Press II The first consideration, known as the history prong, examines whether th e place and process have historically been open to the press and general public whereas the second consideration, referred to as the function or logic prong, observes whether public access plays a significant positive role in the functioning of the parti cular process in question.106 In Press II a relaxed application of the history prong allowed the Court to recognize a fundamental First Amendment right of access to preliminary hearings, despite the particular type of hearing at issue having no historical counterpart.107Fede ral Case Law Specifically Addressing Access To Discovery Records Since criminal discovery has not historically been publicly accessible, In order for a court to recognize a First Amendment right of access to it, the history prong of the Richmond Newspapers two part test must again be loosely applied. The Supreme Court and Access to Civil Discovery Amidst all of the controversy in defining a constitutional right of access to criminal trials and procedures, in 1984, the Supreme Court enter tained a challenge from a newspaper seeking 102 Press II 478 U.S.at 8. 103 Id 104 Id at 10. 105 Id at 8. 106 Id 107 Id.

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56 access to the documents exchanged by parties in a federal suit pursuant to the discovery provisions of the Federal Rules of Civil Procedure.108 Seattle Times Co. v. Rhinehart involved a trial courts decision to pr ohibit a newspaper defendant from publishing information obtained through discovery during a defamation suit against it in light of the privacy claims of the opposing party.109 The plaintiffs in the defamation suit sought a protective order claiming their pr ivacy would be implicated if defendant newspaper was able to disseminate the materials obtained through discovery.110 A unanimous Court ultimately ruled that a litigant does not have a First Amendment right to disseminate materials obtained through the civ il pretrial discovery process.111 In reaching this decision, the Court declared that discovery is not a public portion of a civil trial.112 History shows, said the Court, that the proceedings were not open historically, nor were they open as a matter of modern practice.113 Instead, civil discovery procedures are conducted in private, according to the Court.114 Even further, since much of the material exchanged during civil discovery may only be tangentially related to the underlying cause of action, any restraint s imposed on dissemination of that information does not affect a traditionally public source of information.115 Overall, the Court upheld the protective order entered on a showing of good cause by the trial court that prohibited the disclosure of informa tion obtained via the discovery process.116 108 Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). 109 Id. 110 Id. at 30. 111 Id. at 22. 112 Id. a t 33. 113 Id. 114 Id. 115 Id. at 33. 116 Id. at 37.

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57 Access to Criminal Discovery as the Lower Federal Courts See it Building mainly upon the U.S. Supreme Courts decision in Seattle Times three federal court decisions deny any thirdparty access rights to criminal discovery records. In 1986, the United States Court of Appeals for the 11th Circuit ruled in United States v. Anderson that discovery is neither a public process nor typically a matter of public record.117 Nor are discovery documents considered judicial r ecords.118 Rather, since discoverys sole purpose, be it civil or criminal, is to prepare the litigants for trial, it is essentially a private process.119 Citing fears that voluntary discovery could be chilled, the court cautioned against discouraging litigants from disclosing details by allowing public access to those details.120 In the end, the court denied the public the right to access discovery materials. Similarly, in United States v. Martin, the U.S. District Court for the Central District of Illino is determined that criminal discovery materials have traditionally been unavailable to the public while also declaring that neither the common law nor First Amendment presumption of access applies to discovery.121 The court went a step further, stating that any decision granting the public access to criminal discovery would render the Seattle Times decision superfluous.122 Likewise, the U. S. District Court for the District of South Carolina, while differentiating between records that are part of dispositive court actions and those that play no role in the adjudicative process, ruled that discovery materials fall in the latter group and thus no First Amendment or common law access right attaches.123 117 United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986). Furthermore, the U.S Court of Appeals for the Third Circuit ha s held that materials exchanged during discovery become judicial materials 118 Id. 119 Id. 120 Id 121 United States v. Martin, 38 F. Supp. 2d 698, 705 (C.D. Ill. 1999). 122 Id. at 706. 123 United States v. Van Hipp, 1997 U.S. Dist LEXIS 24115 at 3 (D. S.C. 1997).

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58 only when they are filed with the court in conjunction with a motion.124 Overall, in four federal court opinions, courts have said that unless a record exchanged during the discovery process is later filed with the court or used to support a dispositive motion, federal courts are unwilling to attach a First Amendment or common law access right to the material. Summary The United States Supreme Court has not yet specifically addressed whether a qualified right of access attaches to criminal discovery records. Any right of access that would attach to criminal discovery would be subject to a limited and leastrestrictive closure order that a court may enter to achieve a compelling govern ment interest, such as a defendants fair trial rights or a trial participants privacy interests. However, a qualified federal common law right does apply to court records while a qualified First Amendment right applies to procedures that satisfy the logic and history prongs of the twopart access test established by the Supreme Court in Richmond Newspapers and its progeny. Discovery records do not yet appear to be court records solely from their being exchanged between the prosecu tion and defense. In addit ion, C hapter Twos discussion on criminal discovery suggests that the process has not historically been open to public inspection. Moreover, courts have not yet determined that the discovery process would necessarily benefit from this oversight. For these reasons, it appears that neither the First Amendment right of access to judicial proceedings nor the common law right of access to judicial records attaches to either the criminal discovery proc ess or the records it generates. 124 United States v. Wecht, 484 F.3d 194 (3d Cir. 2007).

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59 CHAPTER 4 THE SUNSHINE STATE LIVES UP TO ITS NAME: A STATEBY STATE REVIEW OF PUBLIC ACCESS TO CRIMINAL DISCOVERY RECORDS Well, what`s wrong with Florida? I mean, the discovery rules in Florida are so, so open... We`re almost trying this case now before the case actually goes to t rial. They need maybe they should change their discovery laws. 1 Introduction Though, as Chapter three discussed, the United States Supreme Court has acknowledged a First Amendment right of access to criminal court proceedings, no such right has been e xtended to criminal court records. Under federal common law, however, court records have historically been open for public viewing.2 Court documents, particularly records submitted as evidence at a trial, have typically been accessible to the public.3 Conf lict arises as to a documents access status when the material sought has not yet, and will never be introduced into evidence, like many of the items exchanged through the discovery process.4 Discovery records, though they obviously contain most of the ev idence that will be admitted at trial, also include a plethora of information that will never be discussed in open court and will thus remain outside of the public court file.5 In addition, in many jurisdictions, discovery can often take place via an infor mal agreement between the prosecution and defense outside of the courtroom and beyond any First Amendment access right that may attach.6These dynamics hi ghlight the inadequacies of current U.S. Supreme Court access jurisprudence in controlling access to pretrial criminal discovery and raises two key questions 1 Jane Velez Mitchell, Evidence Released in Caylee Anthony Murder Case Issues with Jane VelezMitchell, Feb. 18, 2009. 2 Nixon v. Warner Communications, 435 U.S. 589 (1978). 3 Id at 597, stating that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. 4 See supra Ch. Two. 5 Material included in discovery records include inf ormation that either side will decide to both use and not use throughout the course of proving guilt or innocence as well as information that cannot even be submitted at trial. Id 6 See supra Ch. Three.

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60 beyond the scope of this research: first, whether discovery records should become part of a court file that is presumptively open; and, second, whether discovery is a criminal proceeding subject to a presumptive qualified right of public access. This chapter will provide, however, an evaluation of the fifty states, plus the District of Columbia, to determine whether access to criminal discovery records is available through either an explicit provision of the states public records act, a court rule or through case law directly addressing the issue. Findings Upon thorough review of state constitutional law, case law, statutes and court rules, it appears that no other state specifically prescribes any access at all to criminal discovery records as Florida does. The Casey Anthony saga highlights the vast access allowed in Florida. Of the remaining fifty jurisdictions (forty nine states and the District of Columbia), only one other state, through judicial opinion, can be construed to allow access to criminal discovery records. Twenty three states deny access outright through case law, a rule of procedure, or a public records exemption. Four states are unclear as to whether access is either granted or denied and twenty two states fail to mention any standard that can be or has been applied to grant or deny public access to criminal discovery. No state including Florida, has a constitutional provision that specifically addresses public access to the criminal discovery process. Florida: In a Class of its Own As mentioned in Chapter One, records provided to the defendant in a criminal case are accessible under Floridas public records law.7 This is accomplished since Documents given or required by law or agency rule to be given to the person arrested 7 FLA. STAT. 119.011 (3)(c)(5)(2008). are excluded from the public records exemption that covers criminal investigative information. This grant of access is rebuttable however, since a court may order that specific information be maintained

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61 confidentially until released at trial in order to protect a witness against defamation or a threat to his or her security, and to prevent damage to the prosecutions ability to try a codefendant.8 In addition, Floridas Rule s of Criminal Procedure controlling the criminal discovery process permits a judge to enter a protective order restricting or deferring disclosures for cause. 9 Even further, the Florida Supreme Court requires that access to criminal discovery records be balanced against the constitutional guar antees of due process and a fair trial .10The Florida Supreme Court has specified that the right of access to discovery records was statutorily created and does not rely on any First Amendment or common law rights of access. 11 In delving into the legislative intent of the provision in 1985, Floridas Fourth District Court of Appeal in Bludworth v. Palm Beach Newspapers, Inc. noted that the legislature had numerous opportunities to exclude criminal discovery records from disclosure.12 This case involved the a F lorida State Attorneys office refusal to release documents provided to the defense pursuant to a discovery request to media organizations that filed several public records requests.13 The trial court ordered the state attorney to release to the media organ izations all information already shared with defense counsel.14 8 FLA. STA T. 119.011 (3)(c)(5)(2008). The state attorney refused, arguing that the statutory provision requiring that discovery records exchanged by the parties in a criminal case be made available to the public should be read na rrowly to only include allowing access to information that shows 9 FLA. R. CRIM P. 3.220. See also F lorida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (1988) ( upholding the use of this provision to deny access to criminal discovery records). Any closure provision employed under the Rules of Criminal Procedure must pass the Lewis test developed by the Florida Supreme Court that requires that 1) closure is necessary to prevent a serious and eminent threat to justice; 2) there are no alternatives, other than a venue change, to protect a defendants constitutional fair trial rights; and 3) closure would be effective in the least restrictive means. Miami Herald v. Lewis, 426 So. 2d 1, 6 (Fla. 1982). 10 F lorida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (1988). 11 See, e.g.. Id 12 Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775, 779 (Fla 4th DCA 1985). 13 Id. at 77778. 14 Id. at 778.

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62 the basis for the persons arrest, not everything shared with the defendant pursuant to the criminal discovery process.15 The appellate court disagreed, recognizing that the legislature enum erated a list of exemptions to the public records act and that these exemptions should be read to enhance access whenever possible.16 This list included an exemption that specifically exempted criminal discovery records from any access exemption. Since the legislature can enact further exemptions at its desire, courts have been cautious to issue any judicial access exemptions.17 The court noted that by choosing not to specifically exclude discovery records from the criminal investigative information exemption it appeared likely that the legislature believed there was no longer a need for secrecy once the materials were exchanged with the defendant.18With Floridians public access to criminal discovery rights grounded in legislative enactment, it is subject to amendment at any time by the legislature. However, as it currently stands, once items are provided to a criminal defendant during the pre trial phase of a criminal case, the records are presumed public and affirmative steps must be taken for access to be denied. Rhode Island Only one other state, Rhode Island, comes close to specifically providing a right of access to criminal discovery records. This right of access, however, does not emanate from a legislative enactment. Rather, it is derived from a judicial d ecision that balances the right of access to documents generated during the criminal discovery process against the interests supporting closure. 15 Bludworth, 476 So. 2d at 778. 16 Id. at 779, recognizing that when in doubt, the courts should find in favor of disclosure rather than secrecy. 17 Id 18 Id. at 779, citing Satz v. Blankenship, 407 So. 2d 396, 398 (Fla. 4th DCA 1981).

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63 In 1985, in State v. Cianci ,19 the Supreme Court of Rhode Island decided a case specifically challenging the sealing of pretrial discovery records by a trial court. In this case, authorities charged the former mayor of Providence with multiple felonies.20 Both the prosecution and defense requested that any materials exchanged pursuant to discovery be sealed from the public to safeguard defendants fair trial rights.21 The trial court entered an order sealing the discovery materials without a hearing and several media outlets subsequently challenged that closure.22 The state Supreme Court defined the specific issue on appeal as whether the press and public have a right to access documents obtained through the pretrial discovery process.23 Without explicitly deciding this issue, the court did develop a four part test, based on U. S. Supreme Court decisions that a Rhode Island trial court should utilize before closure is justified.24 First, a protective order must be narrowly construed to achieve the protection sought. Second, closure must be the only reasonable alternative. Third, the closure order has to allow for access to parts of the record that are not subject to the order. And, finally, the trial court must provide an explanation of the need for a closure order.25 In this instance, the court remanded the case to the lower cou rt for a more thorough inquiry based on this four part test.26 This specific challenge was later rendered moot when former mayor Cianci pled no contest to lesser charges of assault with a deadly weapon and simple assault He received a five year suspended prison sentence.27 19 State v. Cianci 496 A.2d 139 (R.I. 1985). Though the Rhode Island Supreme Court did not recognize a specific right of access to criminal discovery records, it did require the submission to the trial 20 Id. at 141. 21 Id. 22 Id. 23 Id at 142. 24 Id at 144. 25 Id. 26 Id. at 145. 27 Id. at 149.

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64 court of a closure order by the party seeking to seal discovery documents from public view. Even further, t his c losure would then need to be analyzed against the state Supreme Courts four part standard to ultimately determine whether items shared during discovery are available to the public. This would be done on a case by case basis. No Access for You! Public records exemptions construed to deny access to criminal discovery records Each of the jurisdictions analyzed, including Florida and Rhode Island, grant a statutory right of access to several categories of information held by its government agencies through i ts relevant public records laws.28 All of these laws contain exemptions and all preclude at least some access to investigative records.29 Investigative records,30 are highly valuable to a journalist reporting on a crime because they allow reporters to review each step in the investigative process.31 Many of the records exchanged during criminal discovery are investigative records and may therefore be inaccessible without a provision specifically granting access to those records because of their inclusion in t he discovery process .32However, w hile each state contains some type of public records exemption denying access t o investigative records, eleven states include a more specific exemption that likely precludes access to criminal discovery records These provisions exempt materials generated and How a states investigative records public records exemption may or may not apply to criminal discovery is beyond the scope of this research. 28 For a thorough review of these provisions, see, e.g., Reporters Committee for Freedom of the Press, Open Government Guide available at http://www.rcfp.org/ogg/ (last visited July 14, 2009). For a general discussion on state access laws, s ee, e.g., NEWSGATHERING AND THE LAW. 29 See Reporters Committee for Freedom of the Press, Open Government Guide available at http://www.rcfp.org/ogg/ (last visited July 14, 2009). 30 These include, but are not limit ed to, police reports, witness statements, physical evidence and crime scene photos. 31 Charles Davis, Access to Discovery Records in Florida Criminal Trials: Public Justice and Public Records 6 J. LAW. & PUB. POL'Y 297 (1994). 32 See supra Ch. Two (discuss ing the pre trial criminal discovery process).

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65 maintained in preparation of litigation or relating to pending litigation f rom disclosure under the public records act. As Chapter 2 explained, discovery records are materials specifically compiled, maintained and exchanged, for the sole purpose of preparing and adjudicating criminal matters.33Californias public records law spec ifically exempts items pertaining to pending litigation in which the public agency is a party, at least until that litigation has been adjudicated or otherwise settled. 34Georgias public records exemptions specifically deny access to law enforcement, prosecution and regulator y agenc(y) records pertaining to pending prosecutions. During a criminal prosecution, the state is a party to the case and thus any records pertaining to a pending criminal prosecution is exempt from the public records act. As discussed in Chapter Two, discovery records are generated, collected and exchanged for the sole purpose of criminal litigation. Therefore it seems that this public reco rds exemption would prohibit public access. No case law could be found that applied this exemption specifically to allow or deny access to materials generated through the criminal discovery process. 35 Though initial police and accident reports are not exempt,36 33 See supra Ch. Two. discovery records exchanged between the prosecution and the defense appear to fall within the category of prosecution records pertaining to criminal prosecution s ; and, therefore, discovery records are exempt from access under Georgias public records laws. No case law could be found that applied this exemption 34 CAL. GOVT. CODE 6254 (b) (2008). 35 GA. CODE ANN. 5018 72 (a)(4) (2009). This provision, in pertinent part, states that public disclosure shall not be required for Records of law e nforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution sha ll no longer be deemed to be pending when all direct litigation involving said investigation and prosecution has become final or otherwise terminated. 36 Id.

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66 specifically to allow or deny access to materials generated through the criminal discovery process. In Louisiana, a public records exemption applies specifically to the records held by district attorneys, law enforcement agencies, correctional agencies, intelligence agencies and commu nications districts pertaining to any pending criminal litigation or any criminal litigation which can be reasonably anticipated. 37 The exemption expires once the litigation is completed.38 Once again, criminal discovery records obviously pertain to pendi ng criminal litigation and are also typically in the possession of the district attorney trying the case. As such, it would appear that criminal discovery records are exempt from Louisianas public records laws. This exemption is subject to one limitation, however, as any record shall become available, upon request, to the immediate family of an individual who died by other than natural causes.39Missouris public records law authorizes government agencies to deny access to records relating to legal actions, cause of actions or pending litigation in which a public governmental body is involved. No case law could be found that applied this exemption specifically to allow or deny access to materials generated through the criminal discovery process. 40Oregon approaches its exemption a little differently than the states already addressed. Though it too exempts records pertaining to pending and reasonably anticipated litigation Again, since criminal cases are prosecuted by the state, it appears to be litigation involving a government body and thus subject to the public records exemption. No case law could be found that applied this exemption specifically to allow or deny access to m aterials generated through the criminal discovery process. 37 LA. REV. STAT. 44:3 (A)(1) (2008). 38 Id. ... until such litigation has been finally adjudic ated or otherwise settled... 39 LA. REV. STAT. 44:3 (F)(2008). 40 MO. REV. STAT. 610.021 (l) (2008).

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67 involving a public body,41 another provision specifically exempts investigatory information compiled for criminal law purposes.42 These records are presumptively closed, but could become accessible if the public interest requires disclosure. Criminal discovery materials a ppear to be within the scope of both exemptions, however, In Wyoming, the records exemption applies both to records of investigations or investigatory files compiled for prosecution purposes. no case law could be found that applied these exemptions specifically to allow or deny access to materials generated through the criminal discovery process. 43 Much of what the prosecutor provides to a defendant pursuant to discovery, as discussed in Chapter Two, will likely qualify as investigative records used for prosecution purposes and are thus subject to this exemption to the public records laws.44Delawares Public Records Exemption Nine prohibits public access to records pertaining to pending or potential litigation not yet part of a court file. No case law could be found that applied this exemption specifically to allow or deny access to materials generated through the criminal discovery process. 45 As previously discussed, discovery records unquestionably contain documents pertaining to pending litigation and typically do not become part of a court file just by being exchanged during the pretrial discovery process.46 41 OR. REV. STAT. 192.501 (1) (2007). No case law could be found that applied this exemption specifically to allow or deny access to materials generated through the criminal discovery p rocess. 42 OR. REV. STAT 192.501 (3) (2007). 43 WYO. STAT. ANN. 16 4 203 (b)(i) (2009). 44 Id. 45 DEL. CODE ANN. tit., 10002 (2008). 46 See supra Ch. Two. Items become part of a court file when they are involved with dispositive motions and are filed with the court or presented in open court.

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68 Ohios exemption applies directly to trial preparation records,47 defined to include records compiled for pending and reasonably anticipated criminal litigation.48 The Supreme Court of Ohio applied this exemption directly to criminal discovery reco rds, ruling in 1997 in State ex rel. WHIO TV 7 v. Lowe that discovery records fall under this public records exemption despite being provided to the defense.49 In this case, local media outlets covering a murder case sought access to defendants statements photographs, police reports, a witness list and scientific test results exchanged during the pre trial discovery process under the states public records act.50 In denying such access, the Supreme Court of Ohio discussed the nonpublic nature of the criminal discovery process while also noting that documents collected throughout the process are not judicial records.51 Relying on the U.S Supreme Courts decision in Seattle Times Co. v. Rhinehart the court declared discovery an essentially private process with the sole purpose of assisting in trial preparation.52 It then went even further, declaring that allowing public access to materials solely because they were provided to the defense would have a chilling effect for the parties search for and exchange of information during the discovery process since litigants would likely limit any voluntary disclosure, resulting in an increased misunderstanding and surprise for the litigants and the trial judge.53Though not found in the legislative enacted public records act, Vermont also restricts access to criminal discovery records through a public access exemption. Part (b) of Rule 6 of In other words, public access to criminal discovery records would adversely affect the administration of the judicial process, according to the Ohio Supreme Court. 47 OHIO REV CODE ANN. 149.43 (a)(1)(G) (2009). 48 OHIO REV CODE ANN. 149.43 (a) (4) (2009). 49 State ex rel. WHIO TV 7 v. Lowe, 673 N.E.2d 1360 (Ohio 1997). 50 Id. at 1363. 51 Id. 52 Id 53 Id. at 136364.

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69 Vermonts Rules for Public Access to Court Records, part of Vermonts Court Rules, contains exceptions to public access. Exception nine explicitly provides that (t)he public shall not have access torecords produced or created in connection with discovery in a case in court.54Discovery custody provision construe d to deny access to criminal discovery records No case law could be found that applied this exemption specifically to allow or deny access to materials generated through the criminal discovery process. As mentioned in Chapter Two, the American Bar Association recommended that discovery materials remain in the exclusive custody of the attorney in its Standards for Criminal Justice: Discovery and Trial by Jury second edition promulgated in 1978.55 It stated that Any material furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case. This provision was removed in the Third Edition, updated in 1993, in recognition of the fact that defense attorneys may need to provide certain documents for independent analysis in order to vigorously represent their client.56 The current standard still requires that materials be used for the sole purpose of preparation and trial of the case.57 Despite the custody provision being removed from the ABA standards, provisions modeled after the standard remain on the books in twelve states. These provisions, found exclusively in the respec tive states criminal procedure rules defining the pretrial discovery process, effectively limit the ability for attorneys to disclose documents generated and exchanged during discovery to third parties, including the media. The states with such a provision include Alaska,58 Arkansas,59 Arizona,60 Colorado,61 Hawaii,62 Minnesota,63 54 VT. PUB. ACC. CT. REC. R. 6. 55 AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS (2d. ed. 1978). 56 Id 57 AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS (3d. ed. 1996). 58 ALASKA R. CRIM. P. 16. 59 ARK. R. CRIM. P. 19.3.

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70 Mississippi,64 Montana,65 New Jersey,66 Vermont,67 and Washington.68Texas No case law in which a court referred to a states custody provision to specifically deny a third partys access to crimi nal discovery records request could be found. 69 and Illinois70 both have a discovery custody provision in their respective rule of procedure.71 Both states also specifically exempt records pertaining to pending litigation involving government bodies from their respective public records laws.72 First, in Texas, the custody provision goes beyond that recommended by the ABAs 1978 Second Edition Discovery Standards and requires that any disclosure provided to the defense occur in the presence of a representative of the state while also specifying that the discovery process does not authorize the removal of such evidence from the possession of the state.73 The Texas public records law exemption applies specifically to criminal litigation information involving the state74 and runs until all post conviction remedies are exhausted.75Illinois, like Texas, limits custody of materials exchanged during the criminal discovery process to the opposing counsel 76 60 ARIZ. R. CRIM. P. 15.4 (d), explicitly stating that "Any materials furnished...pursuant to this rule shall not be disclosed to the public" while also providing for an exemption in its public records l aw 61 COLO. R. CRIM. P. 16 (III)(c). 62 HAW. R. PENAL P. 16 (e)(6). 63 MINN. R. CRIM. P. 9.03. 64 MISS. URCCC 9.04 ( f). 65 MONT. CODE ANNO. 46 15326 (2008). 66 N.J. CT. R. 3:133. 67 VT. R. CRIM. P. 16.2 (C). 68 WASH. CT. R. 4.7 ( h)(3). 69 TEX. CODE CRIM. PROC. art. 39.14 (2009). 70 ILL. SUP. CT. R. 415 (c) (2008). 71 TEX. CODE CRIM. PROC. art. 39.14 (a) (2009); ILL. SUP. CT. R. 415 (c). 72 TEX. GOV'T CODE 552.103 (2009) ; 5 ILL. COMP. STAT. 140/7(1)(n) (2008). 73 TEX. CODE CRIM. PROC. art. 39.14 (a) (2009). 74 TE X. GOV'T CODE 552.103 (a) (2009). 75 TEX. GOV'T CODE 552.103 (b) (2009). 76 ILL. SUP. CT. R. 415 (c).

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71 preventing criminal discovery records from becoming public.77 The Illinois public records exemption prohibits access to materials compiled by a public body pertaining to criminal litigation.78Both Virginia and North Carolina, via case law, prohibit public access and inspection of criminal discovery records. The North Carolina Supreme Court, in Piedmont Publishing v. City of WinstonSalem upheld a lower court ruling that denied a newspaper access to recordings gathered by the Winston Salem Police Department. No case law in either Illinois or Texas was found applying the exemptions to specifically deny access to criminal discovery records nor were any cases found that utilized the custody provisions to deny a third partys request seeking access to criminal discovery records. Judicial decisions preventing access to crim inal discovery records 79 These recordings were generated pursuant to a criminal investigation which later became part of the states file in a pending criminal action.80 The newspaper sought access to the recordings under North Carolinas Public Records Act, arguing that since the y were gathered by a state law enforcement agency and were part of the states file in a criminal investigation, the public was entitled to access the m .81 The state Supreme Court denied this claim, reasoning that (I)f the Public Records Act applies to information the state procures for use in a criminal action, a criminal defendant could utilize the act to enjoy much more extensive discovery than North Carolinas discovery rule provides.82 77 5 ILL. COMP. STAT. 140/7(1)(n) (2008). In other words, the defendant, through a Public Records Act request, could obtain information that discovery does not usually compel the state to provide to a defendant. Since, according to the court, the discovery rule applies specifically to criminal investigative files while the Public 78 Id. 79 Piedmont Publishing v. City of WinstonSalem, 434 S.E.2d 176 (N.C. 1993). 80 Id. 81 Id 82 Id

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72 Records Act pertains to public records generally, the more specific statute shall be applied.83 In Virginia, the Court of Appeals, the states intermediate appellate court, utilized the United States Supreme Courts reasoning in Seattle Times v. Rhine hart Thus, the state Supreme Court held that records maintained by the state in preparation for a criminal trial are only subject to North Carolinas criminal discovery rule and not the Public Records Act. 84 to hold that the public enjoys no constitutional right of access to criminal discovery documents.85 The Virginia case involved the media seeking access to the discovery documents generated during the pre trial process of a murder case.86 The trial cou rt denied access, finding that the records in question, characterized as private medical and psychological records, had not been traditionally open for public inspection. Nor did public access to such records enhance the functioning of justice.87 The Cour t of Appeals agreed.88 Discovery is essentially a private process utilized only to assist in trial preparation, the court said.89 Discovery has traditionally been a closed process and opening it would not play a significant role in the administration of justice.90 Thus, according to the Court of Appeals, it fails the two prong test developed by the United States Supreme Court in PressEnterprise II .91 83 One canon of construction is that when one statute deals with a particular subject matter in detail, and another statute deals with the same subject matter in general and comprehensive terms, the more specific statute will be construed as controlling. Id at 598, citing Food Stores v. Board of Alcoholic Control, 268 N.C. 624 (1966). As such discovery records are not open to public access. 84 467 U.S. 20 (1984) (holding that there is no constitutional right of access to civil discovery records). 85 In re Worrell Enterprises, 419 S.E.2d 271 (Va. App. 1992). 86 Id. 87 Id. at 273. 88 Id. 89 Id 90 Id. 91 Id.

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73 The O ddB all Jurisdictions Four states Maryland, N ew York, Oklahoma, and Utah do not specifically address access to criminal discovery records. The states do, however, have variations of the public records litigation exemptions and discovery rules custody restrictions that are less stringent and do not necessarily preclude public access to criminal discovery records. First, Marylands rule of criminal procedure defining the criminal discovery process specifies that criminal discovery material shall not be filed with the court.92 Minnesota, which specifi cally denies public access to criminal discovery records through a public records exemption,93 has a similar provision to the one that places Maryland in this group of four states.94 The Maryland enactment seems to impose a hurdle on anyone seeking public ac cess to the items exchanged during discovery since discovery records can never be subject to the publics common law right of access to judicial records if they do not become part of the case file.95The second state with no legal provision directly addressing access to discovery records is New York. New Yorks custody provision provides that a dis covery order may require that the materials exchanged remain in the exclusive possession of the attorney for the discovering party and used only for the prosecution or defending of charges. No case law, however, could be found specifically denying public access to pre trial criminal discovery records based on this provision in Maryland or Minnesota. 96 92 MD. R. CRIM. P. 4 262(j). The other states custody provisions, modeled directly after the now expired ABA standard, mandates the custody restriction, whereas New Yorks stipulation merely permits an order restricting possession to 93 See supra p. 69. 94 MINN. R. CRIM. P. 9.03. Unless the court orders otherwise for the purpose of a hearing or trial, discovery disclosures made pursuant to Rule 9 shall not be filed under th e provisions of Rule 33.04. 95 Nixon v. Warner Communications, 435 U.S. 589 (1978). 96 N. Y. CRIM PROC. LAW 240.50 (2) (2009).

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74 opposing counsel. Minus such an order, case law in New York suggests that criminal discovery records may qualif y as judicial records and may thus be subject to the common law right of access to court records defined by the United States Supreme Court in Nixon as recognized by the courts of New York.97 In 1993, the Supreme Court of New Yorks Appellate Division, an intermediate appellate court, noted in dicta that arguably, discovery materials are subject to the commonlaw right of access to court records recognized in state courts.98 Ultimately, in a case not specifically challenging the granting or denying of access to criminal discovery materials, the court ruled that the party seeking the closure of court records has the burden to show that the public's right of access is outweighed by competing interests.99Third, in Oklahoma, per the states public records exemption, district attorneys may keep litigation files confidential. Again, this exemption merely permits lawyers working for the state, including prosecutors, to preclude access to their files, if they choose. Because it is buried in dicta, this recognition cannot be considered as presuming access to cri minal discovery materials under commonlaw court records access rights. 100Finally, Utahs criminal procedure rules providing for pretria l criminal disclosure allows the prosecution and defense to agree to reasonable limitations regarding the dissemination to third parties of the materials exchanged during the process. It does not, however, outright deny the public access to these files. 101 97 People v. Burton, 189 A.D.2d 532 (N.Y. App. Div. 1993). Once again, this rule only allows for the attorneys to enter into an access limiting agreement and therefore it does not specifically deny access to the records. 98 Id. at 491. 99 Id. 100 OKLA. STAT. tit. 51 24A.12 (2009). 101 UTAH R. CRIM. P. RULE 16.

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75 The Silent Jurisdictions The twenty two remaining jurisdictions have not codified a public records exemption applying to litigation material that can be c onstrued to preclude access to criminal discovery records while also not restricting custody of the material in their respective court rules defining the criminal discovery process. They are Alabama, Connecticut, Washington, D.C., Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Pennsylvania, South Carolina, South Dakota, Tennessee, West Virginia and Wisconsin. Likewise, no case law specifically granting or denying access to c riminal discovery could be found throughout these jurisdictions. Summary Overall, only two states, Florida and Rhode Island, directly provide for access to criminal discovery materials. The legislature codified a Floridians right of access while a Rho de Islanders access right derives from case law. Of the twenty five states that deny public access to criminal discovery records, eleven states do so through their public records law exemptions while the other twelve limit the custody of discovery materia ls through their rules of criminal procedure. Two others use case law to deny the public access to criminal discovery records. Finally, four states appear to neither explicitly deny nor grant access to criminal discovery records while twenty two are completely silent on the matter

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76 Table 4 1. State by state access list State Access? Cite Alabama no mention n/a Alaska No Alaska R. Crim. P. 16. Arizona No Ariz. R. Crim. P. 15.4 Arkansas No Ark. R. Crim. P. 19.3. California No Cal. Govt. Code 6254 Colorado No Colo. R. Crim. P. 16 Connecticut no mention n/a DC no mention n/a Delaware No Del. Code Ann. tit., 10002 Florida Yes Fla. Stat. 119.011 Georgia No Ga. Code Ann. 50 18 72 Hawaii No Haw. R. Penal P. 16 Idaho no mention n/a Ill inois No Ill. Sup. Ct. R. 415; 5 Ill. Comp. Stat. 140/7 Indiana no mention n/a Iowa no mention n/a Kansas no mention n/a Kentucky no mention n/a Louisiana No La. Rev. Stat. 44:3 Maine no mention n/a Maryland Maybe Md. R. Crim. P. 4262 Massachusett s no mention n/a Michigan Minnesota No Minn. R. Crim. P. 9.03. Mississippi No Miss. URCCC 9.04 Missouri No Mo. Rev. Stat. 610.021 Montana No Mont. Code Anno. 46 15 326 Nebraska no mention n/a Nevada no mention n/a New Hampshire no mention n/a New Jersey No N.J. Ct. R. 3:13 3. New Mexico no mention n/a New York Maybe N.Y. Crim Proc. Law 240.50 North Carolina No 434 S.E.2d 176 (N.C. 1993). North Dakota no mention n/a Ohio No 673 N.E.2d 1360 (Ohio 1997).

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77 Table 4 1 Continued State Acc ess? Cite Oklahoma Maybe Okla. Stat. tit. 51 24A.12 Oregon No Or. Rev. Stat. 192.501 Pennsylvania no mention n/a Rhode Island Yes 496 A.2d 139 (R.I. 1985). South Carolina no mention n/a South Dakota no mention n/a Tennessee no mention n/a Texa s no Tex. Code Crim. Proc. art. 39.14; Tex. Gov't Code 552.103 Utah maybe Utah R. Crim. P. Rule 16 Vermont no Vt. R. Crim. P. 16. Virginia no 419 S.E.2d 271 (Va. App. 1992). Washington no Wash. Ct. R. 4.7 West Virgina no mention n/a Wisconsin no m ention n/a Wyoming no Wyo. Stat. Ann. 16 4 203

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78 CHAPTER 5 THE TWISTED TALES OF THE TOT MOM, CONTINUED I have no regrets, just a bit worried. I just want for everything to work out okay. I completely trust my own judgment & know that I made the right decision. I just hope that the end justifies the means. I just want to know what the future will hold for me. I guess I will soon see This is the happiest that I have been in a very long time. 1 It has over a year since Caylee Anthony first went missing and the local and national media swarmed upon the story like vultures over a decomposing carcass. In the time since the little girls disappearance, her mother has been arrested and charged in her death and the news media have committed a plethora of air t ime, column space and bandwidth to news coverage of the disappearance, investigation and criminal case. Since materials provided to the defense during the course of a criminal prosecution are subject to the public records act in Florida, much of the media s coverage has contained casespecific details available to the public under the states public records law solely because the materials were exchanged during through the criminal discovery process. Orlando Sentinel reporters Sara Lundy and Amy Edwards, co vering the case from the beginning, have a standing public records request on file seeking access to any records provided to the defense per the states public records law.2 1 Casey Anthonys journal entry dated June 21st and obtained by the media because it was exchanged during discovery. Though many media outlets and blogs reported that this entry was from June 2008, just a few days after her daughters d isappearance, the page on the diary from which this quote was taken suggests that it was from 2003, before her daughter was even born. Her defense attorney Jose Baez denied that the entry was from June 2008 and also suggested it was from a 2003 diary. See, e.g., Gigi Stone and Lee Ferran, 500 Pages of Circumstantial Evidence in Casey Anthony Case ABCNews.com, Feb. 19, 2009, Nancy Grace, Greta van Sustern and local news affiliates advertise their nightly ne wscasts, highlighting when new http://abcnews.go.com/GMA/US/story?id=6912695&page=1 (last visi ted July 13, 2009); Hal Boedecker, Casey Antony: Jose Baez tells "Today" that diary entry is from 2003; state has "rock solid case," Jeanine Pirro says, ORLANDO SENTINEL, F eb. 19, 2009, available at http://blogs.orlandosentinel.com/entertainment_tv_tvblog/2009/02/casey anthonycase-4.html (last visited July 13, 2009). 2 See E mail from Amy Edwards, Reporter, ORLANDO SENTINEL, to Brian Pafundi, Graduate Student, University of Florida (Jan. 22, 2009 8:53 EST)(on file with author). See also E mail from Sarah Lundy, Reporter, ORLANDO SENTINEL, to Brian Pafundi, Graduate Student, University of Florida (March 6, 2009, 13:09 EST)(on file with author).

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79 documents are released. The blogosphere is also alive with information about Caylee and Casey Anthony, often fueling speculation over possible evidence, like the diary entry controversy mentioned at the beginning of this chapter.3Even more troubling, in April 2009, audio interviews provided to the defense and that were the subject of a pending protective order were mistakenly released to the public amidst hundreds of new pieces of evidence disclosed by the State Attorneys O ffice. 4 The audio interviews were conducted shortly after Casey was told by Orange County Sheriffs officials about the discovery of her little girls body and depicts her reaction to news that her daughters remains were found.5 The protective order moti on, which referred to both the audio and video6 3 See, e.g., Cayleedaily.com, Disturbing Casey Journal Entry Among Evidence Released Feb. 18, 2009, of those interviews, sought to restrict access to materials that could implicate the fair trial and privacy rights of Casey Anthony. Despite this pending protective order motion and the State Attorneys Offic e asking media outlets not to publish these recordings, the audio of these interviews has http://www.cayleedaily.com/2009/02/disturbingcasey journal entry among evidencereleased/ (last visited July 13, 2009) (reporting that the journal entry in question was written five days after Caylee disappeared.). In addition, as Figure of Appendix shows, the top portion of the original picture as it appeared in the discovery items released has been cropped so the 2003 date does not appear as it is presented on the website. 4 FoxNews.com, Case Against Casey Anthony Could Be In Jeopardy After Confidential Evidence Released April 8, 2009, http://www.foxnews.com/story/0,2933,513298,00.html (last visited July 14, 2009). 5 See, e.g., Holly Bristow, Big Oops in Case Against Casey?, MyFoxOrlando.com, April 7, 2009, http://www.myfoxorlando.com/dpp/news/040709_Big_oops_in_case_against_Casey (last visited July 13, 2009). 6 The video in question was not errantly released. It is still the subject of a pending protective order. A hearing was held on May 27, 2009 on the merits. A decision is pending. See, e.g. Sarah Lundy and Amy Edwards, Jose Baez, attorneys haggle over jail video, phone records, ORLANDO SENTINEL, May 28, 2009, available at http://www.orlandosentinel.com/news/local/cayleeanthony/orl bkcasey anthony 052809,0,1632881.story (last visited July 13, 2009).

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80 been broadcasted across the country and are readily available through the various websites covering the case.7 The trial court rejected without opinion an earlier mo tion for a protective order filed by Baez in relation to photos obtained from Casey Anthonys Photobucket.com 8 account, an online depository for digital images.9 In this motion, Baez argued that many of the images were irrelevant to the case, while sugge sting that they would be provided to the media for the sole purpose of embarrassing the defendant or to cast her in a negative light.10 These images and others released to the public depict Anthony partying with friends, pictures seemingly unrelated to the murder charges.11In May, defense attorney Jose Baez filed a change of venue motion. Many of these images have been widely used by national and local television and are now plastered all over the World Wide Web. 12 In this motion, still pending before the court, Baez points to the inflammatory nature of the local media coverage, specifically noting the breaking news reports associated with several public releases of discovery documents. All aspects of the Anthony case have been reported in local news netw orks from playbacks of taped conversations...to breaking news reports each time new evidence is disclosed.13 7 FoxNews.com, Cas e Against Casey Anthony Could Be In Jeopardy After Confidential Evidence Released April 8, 2009, According to Baez, much of the media coverage has revolved around either law http://www.foxnews.com/story/0,2933,513298,00.html (last visited July 14, 2009). 8 See Pho toBucket.com, What Is Photobucket and Why Should I Use It?, http://photobucket.com/faq?catID=29&catSelected=f&topicID=317 (last visited July 13, 2009). 9 Motion for Protective Or der, State v. Casey Marie Anthony, No. 482008 CF 015606O (Fla. 9th Cir. Ct. Feb. 26, 2009). 10 Id 11 The pictures, released on RadarOnline show Casey Anthony sharing a passionate kiss with another young woman before jumping on a guy for a quick lap dance The images are from 2006, when little Caylee was just 14 months old. Jane Velez Mitchell, New Photos of Casey Anthony Released, Issues with Jane Velez Mitchell, March 24, 2009. 12 Motion for Change of Venue, State v. Casey Marie Anthony, No. 482008CF 015606O (Fla. 9th Cir. Ct. May 4, 2009). 13 Id.

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81 enforcement leaks or the releasing of discovery.14 With the massive amounts of information tha t has been released, Baez argues that it is tough to keep track of the amount of prejudicial and inadmissible evidence available to the public.15 Ultimately, after noting the Internets ability to catapult already negative and pervasive coverage to an entirely new level, Baez argues that a change of venue should be granted because of the clear, pervasive, inflammatory and prejudicial coverage of the case.16 Although requests for changes of venue are not unique to Florida, Chapter Four shows that Florida provides more public access to criminal discovery records than any other state. In only five other states is limited access even possible. In addition, as discussed in Chapter Two, Florida is one of the more open states in terms of what is required, and permitted, to be exchanged and disclosed during the criminal discovery process. Even further, as former Florida prosecutor and present cable news reporter Dan Abrams has noted, discovery itself is exacerbated in high profile cases: in highprofile cases there tends to be more discovery...There tends to be more evidence... Prosecutors and investigators tend to take the case more seriously. The defense attorneys tend to be on them all the time. They tend to get more tips, as w ell, in highprofile cases. A lot of people call in, etc. So, yes, there tends to be more discovery, as we call it, in high profile cases.17 Since discovery records are presumed public in Florida, any increase in the amount of items that are required to be disclosed during the pretrial discovery process comes with a greater 14 Motion for Change of Venue, State v. Casey Marie Anthony, No. 482008CF 015606O (Fla. 9th Cir. Ct. May 4, 2009). 15 Id. 16 Id. 17 Amy Robach, Hundreds of pages of new evidence released in Casey Anthony Case; Dan Abrams Discusses, Today Show, March 21, 2009.

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82 potential threat to the competing interests, to be discussed next, recognized by the U.S. Supreme Court in the First Amendment and common law access cases.18Competing Values Of Fair Tr ial And Privacy The public availability of discovery records in Florida, the expansive nature of the pre trial process in Florida and the immense media interest in the missing toddlers story combine to highlight the implications of allowing the public ac cess to the criminal discovery process. With Casey Anthony set to go to trial some time on 2010, this case provides a living laboratory to examine how both privacy and fair trial rights are implicated in a system that allows public access to criminal disco very records. Public access to the records and proceedings of the criminal court system in general can threaten a defendants right to a fair trial while also implicating the privacy rights of victims and other third parties. First, the release of crimina l discovery records could subject a defendant to prejudicial pretrial publicity. The seminal U.S. Supreme Court decision explicating the standards to apply in combating prejudicial pretrial publicity is Sheppard v. Maxwell This case involved a high profil e murder trial in which the defendant, Sam Sheppard, had been convicted by the press before he was even charged in his wifes death.19 As the Supreme Court noted, the trial courtroom contained a table for the press within the bar and an overall environment where bedlam reigned and newsmen took over.20 According to the Court, it is a trial courts duty to protect a defendant from prejudicial pretrial publicity.21 18 See supra Ch. Three. Inflammatory pretrial media coverage can have an unquantifiable effect on a juror, leading to a presumption of prejudice that violates 19 Sheppard v. Maxwell, 384 U.S. 333 (1966). 20 Id 21 Id. (holding that the trial court must take strong measures to ensure a defendant receives a fair trial free from outside influenc e).

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83 the Sixth Amendment.22 Ultimately, the majority found that the trial judge did not take proper steps to protect the defendant, Sam Sheppard, from inherently prejudicial publicity.23However, as early as the 1807, Chief Justice John Marshall noted that a juror can remain impartial despite forming impressions about a case before trial so long as those impressions can be overcome in court by the evidence presented. 24 More recently, in a U.S. Supreme Court decision that permitted jurors to have knowledge of a defendants prior criminal record, Justice Thurgood Marshall, writing for the Court, said that jurors sitting on a criminal case must not be totally ignorant of the facts and issues before them.25 Thus, though the Sixth Amendment grants a criminal defendant the right to a fair, public trial,26Second, privacy concerns also often conflict with the publics access to the c riminal court system. this protection does not preclude a potential juror from knowing anything about the case. 27 Most court records and many of the documents exchanged during discovery contain personally identifiable information. More generally, court records and proceedings are full of references to personal data and the sensitive details of i ndividuals lives. Social Security numbers, addresses, financial data, medical information and other personal identifying information are found in a variety of court records.28 22 See, e.g., Sheppard v. Maxwell, 384 U.S. 333 (1966). For example, in January of 2008, a Louisville Courier Journal article found Soci al Security numbers on documents filed in 38 of the 48 criminal cases heard on one day in Virginias Loudoun County General District Court. In 23 Id at 363. 24 United States v. Burr, 24 F. Cas. 49 (1807). 25 Murphy v. Florida, 421 U.S. 794 (1975). 26 U.S. CONST. amend. VI. 27 See, e.g ., Armindo Bepko, Public Availability or Practical Obscurit y: The Debate Over Public Access to Court Records on the Internet, 49 N.Y. L. SCH. L. REV. 967 (2005). See also MATTHEW BUNKER, JUSTICE AND THE MEDIA: RECONCILING FAIR TRIALS AND A FREE PRESS (1997). 28 See, e.g., Natalie Gomze Velez, Internet Access to Cou rt Records: Balancing Public Access and Privacy 51 LOY. L. REV. 365, 371 (2005).

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84 addition, Ohios Franklin County Municipal Courts website contains personal information for thousands of people charged with misdemeanors, some guilty of only a speeding ticket.29In light of the sensitive information found throughout most court records, the privacy interests of third parties 30 are often weighed against the benefits of public access to both proceed ings and records.31 The U.S. Supreme Court has recognized that private information could constitute a compelling interest when it touches on deeply personal matters that (a) person has legitimate reasons for keeping out of the public domain.32Yet access t o criminal discovery may still outweigh these competing interests. Public access to the criminal discovery process can provide a rare glimpse into the minds of prosecutors, investigators and suspects, while also possibly supplying leads that help uncover further newsworthy tidbits. 33Analysis Even further, in an age where only one in ten cases is fully adjudicated, access to the criminal discovery process may be the only way to satisfactorily monitor the criminal justice system. The fact that so few st ates permit access to criminal discovery records, coupled with the lack of apparent Supreme Court support, suggests that it will be a long time if ever before the public experiences substantially enhanced access in most jurisdictions. 29 Bruce Cadwallader, 6 Suspected in ID Theft Via Court Web Site COLUMBUS DISPATCH Dec. 21, 2007 available at http://www.dispatch.com/live/content/local_news/stories/2007/12/21/clerkit.ART_ART_1221 07_B1_OO8RDCG.html (last visited July 13, 2009). 30 Most individuals involved in the court system are not criminal offenders(they are) witnesses, jurors, parents, children, heirs, neighbors, guardians, etc. Id. 31 See, e.g., Nixon v. Warner Communications, 435 U.S. 589 (1978). 32 Press Enterprise v. California ( Press I) 464 U.S. 501, 511 (1984). 33 Charles D avis, Access to Discovery Records in Florida Criminal Trials: Public Justice and Public Records 6 J. LAW. & PUB. POL'Y 297, 299 (1994).

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85 Criminal discovery is a pretrial process that generates a collection of records related to a criminal case. These records could include, for example, statements of witness es and the de fendant, crime scene photos, forensic reports and even tangible evidence such as a murder w eapon.34 The United States Supreme Court has recognized a qualified common law right of access to court records. It appears, however, that criminal discovery records are not the judicial records contemplated by the Court when it annunciated the common law presumption of access.35Criminal discovery, as Chapter Two showed, is a relatively new aspect of the criminal justice process. Throughout its young history, the disclosure contemplated by the criminal discovery process has taken place behind closed doors. The materials exchanged often remain concealed from the public until brought into court, for example, as evidence or as support for a motion before a trial court. Prosecutors and defense counsel often exchange discovery materials informally, without resorting to the codified discovery rules. Rather, the items exchanged during discovery seem to only become court records by being presented to the trial court. 36 The parties may avoid seeking a court order compelling discovery and remain outside the purview of the court by making informal requests of each other.37 This type of discovery, taking place beyond the confines of judicial proceedings, sometimes occurs as part of the give and take of plea bargaining.38Overall, the records exchanged during discovery often contain both some of the evidence that will be admitted at trial and a plethora of information that will not be di scussed in open And with the great majority of cases being dispose d of by plea agreement, this may be the only way to access information on those cases. 34 See supra Ch. Two. 35 See supra Ch. Three 36 RUSSELL WEAVER, PRINCIPLES OF CRIMINAL PROCEDURE, 343 (3d ed.). 37 Id. at 344. 38 Id. at 344.

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86 court. The prosecution and defense typically share both relevant information that will eventually be useful role in the adjudication process as well as less relevant information they either will not or cannot use.39A more likely avenue of access is the First Amendment presumption. The U.S. Supreme Court has established a First Amendment righ t of access to criminal court proceedings based both on a historical tradition of openness and the role public oversight plays in the judicial proceeding. Criminal discovery has not been historically open in jurisdictions across the country and, in fact, for the most part, still remain closed. Because criminal discovery is a relatively new pre trial criminal procedure, the First Amendment access tests first prong, based on the history of openness for specific kinds of judicial proceedings, creates a barr ier to an extension of First Amendment access to criminal discovery. If neither party submits an item exchanged during discovery into evidence, that item likely remains outside of the court file and are thus not subject to the common law right of access recognized by the U.S. Supreme Court in Nixon Therefore, unless criminal discovery records beco me part of the court file, the public is not likely to see material that could be important to the case, under the common law. Other comparatively recent adjudicatory tools, as well as possible future tools and processes will find it difficult to fit within the protection of the First Amendment unless the U.S. S upreme Court adjusts its standard to accommodate an ever evolving criminal justice system. For example, with the increasing dependency of the court system on pretrial settlement it might be important that the public have access to discovery materials. In l ight of the fact that more than 90% of felony cases begun in court end in a settlement, and since some type of discovery will typically occur before any plea agreement is struck, access to criminal discovery might be the only way to allow the public to ove rsee a substantial part of 39 See supra Ch. Two

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87 the of the criminal justice system. Public oversight of the criminal justice process was the central argument to the U.S. Supreme Courts extension of First Amendment access from trials to the jury selection process to pre trial hearings.40Several state and federal courts have granted a First Amendment right of access to a judicial process that satisfies only one prong of the twoprong First Amendment threshold for access to courts. 41 This disjunctive approach42 to the two prong test, looking at the historical and logical aspects separately, and attaching a First Amendment qualified access right if either prong is satisfied appears to be the most likely way the First Amendment right of access to courts could be extended to the cr iminal discovery process.43Future Studies Because of the relatively small amount of research on access to the criminal discovery system, it would help policy makers to know whether improved access to criminal discovery would be, in balance, good policy. Or, are the current avenues of access to the records used to adjudicate a criminal defendant adequate? In light of the competing interests, research is needed to accurately account for the privacy and fair trial interests that would arise if the public wer e granted access to the criminal discovery process. To better address these issues, a more thorough review of the actual criminal discovery process is needed. Since legal research can only reveal the rules, requirements and standards of 40 See supra Ch. Three 41 See, e.g., United States v. Suarez, 880 F.2d 626 (2d Cir. 1989)(holding that a First Amendment qualified right of access attached to the Criminal Justice Act forms because of the publics strong interest inthe administration of justice despite the forms lacking a tradition of openness); United States v. Connolly, 321 F.3d 174, 182 (1st Cir. 2003)(stating that the court was not persuaded that both the history and function prongs must be s atisfied in order for a First Amendment access right applies); United States v. Simone, 14 F.3d 833 (3d Cir. 1994)(relying solely on the function prong in extending a right of access to post trial jury misconduct hearings). 42 Nicole Dulude, Unlocking Amer icas Courthouse Doors 11 ROGER WILLIAMS U.L. REV. 193 (2005)(exploring the explored the clash between the conjunctive and disjunctive approach to the twoprong test in light of the tests usage by the Federal Circuits). 43 Id

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88 the criminal discov ery process, a social science approach, utilizing a content of analysis of discovery materials could provide a thorough depiction of the types of sensitive and inflammatory evidence exchanged during the process. Florida and Rhode Island seemingly are the o nly two states in which such an analysis could be accomplished. Once completed, further studies should look at the effect access to the inflammatory and sensitive items in discovery may have on such interests like privacy and the right to a fair trial. T o do this, legal research first aimed at determining the specific privacy interests that could be implicated by the release of such records is needed, followed by a look at a trial courts duty and available tactics to combat prejudicial publicity. One way to accomplish this would be an indepth study of the Casey Anthony saga as it continues to play out. Research exploring the inflammatory and sensitive records released to the public coupled with coverage of the eventual trial, including a complete review of the jury selection process could shed light on the impact this sort of access may have. Even further research could be devoted to further exploring the use of the disjunctive approach to the two part First Amendment access test, and determining whethe r public oversight of criminal discovery, without the necessary history component, could benefit it and the overall administration of the criminal justice process. This would include a comparison of the functioning of the criminal court systems in a state such as Florida, where access to criminal discovery is allowed, to one of the 20plus states that deny access. This comparison would seek to determine if access has any measurable impact on the administering of justice. In other words, have any convictions been overturned because of the publics access to criminal discovery? Are cases in states that allow access to criminal discovery records subjected to more thorough media

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89 coverage and does this lead to making it harder to seat a jury that can adjudicate a case based only on the facts presented in the courtroom? Conclusions Overall, access to courts helps the public monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.44 As the U.S. Supreme Court noted in Press I : The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures ar e being followed and that deviations will become known.45 Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Without access to the proceedings and documents such monitoring would not be possible.46 No where is this more important than in the criminal justice system, w here the state can enforce its full powers over its citizens.47 44 Richard Peltz, The Arkansa s Proposal on Access to Court Records: Upgrading the Common Law with Electronic Freedom of Information Norms, 59 ARK. L. REV. 555, 564 (2006). Yet access to the criminal courts can also implicate an individuals fair trial r ights and privacy interests. The criminal discovery processs unfiltered and unmatched potential to contain inflammatory and sensitive materials, and the value these records could have in term of the publics monitoring of the criminal justice system, nece ssitates a coherent, responsible access policy. This policy should focus on when the materials become public and in what format in order to best reduce the risk of pretrial prejudicial publicity and the harm that could arise from the misuse of ones personal information is needed. Legislatures, likely through a public records 45 Press I 478 U.S. at 508 (emphasis in original). 46 See, e.g., United States v. Amodeo, 71 F. 3d 1044, 1048 (2d Cir. 1995). 47 See, e.g., MONRAD PAULSEN, THE PROBLEM OF DISCOVERY IN A CRIMINAL CASE vvi (1961).

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90 act amendment48 or courts, through a rule of procedure,49Two states specifically recognize a right of public access to criminal discovery records, one through statute and one by common law implica tion. These states are certainly the exception. Twenty three states specifically deny access to the criminal discovery process and the materials it generates. Yet access to these records does not have to be all or nothing. The twenty three states that de ny access and the twenty two that make no mention should at the very least evaluate how public access to criminal discovery could be achieved, in light of the impact these materials can have on the publics ability to oversee the criminal justice system an d the potential adverse effects access may have on fair trial and privacy rights. could enact such a policy at any time, regardless of whether the U.S. Supreme Court extends either the common law or First Amend ment right of access to criminal discovery and without waiting for a state court decision to recognize such a right 48 See supra Ch. Four. 49 See supra Ch. Four.

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91 APPENDIX A CASEY ANTHONY DISCOVERY PHOTOS On the subsequent pages readers will find a very small sample of the types of photos exchanged during discovery in the Casey Anthony case and subsequently available to the public. Many news organizations, both national and local, received access to the discovery documents and posted much of the information online on their various websites. All of these photos were obtained from vari ous media websites and are accessible in many different places on the World Wide Web. The photos selected include crime scene and evidentiary photos, family photos showing mother and daughter together and photos of Casey Anthony consorting with friends.

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92 C B A Figure A 1. These images came from a release of discovery on February 18, 2009. Images A and B show the wooded area where Caylees body was found. Image C shows a collection of items found in the vicinity of where Caylee was discovered.

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93 A B Figure A 2. More photos of evidence discovered at the site where Caylee Anthonys remains were found.

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94 A B Figure A 3. Even more photos of evidence discovered at the site where Caylee Anthonys remains were found.

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95 A B Figure A 4. Photos of a seemingly happy mother and daughter obtained from Casey Anthonys computer.

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96 A B Figure A 5. Casey Anthony with Caylee and a friend (a). Casey and friends at a party (b). Both pictures obtained from Casey Anthonys computer.

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97 B D A C Figure A 6. Various photos of Casey Anthony out on the town with friends, obtained from her computer and her online Photobucket.com account.

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98 A B C Figure A 7. A) A webpage describes the release of a Casey Anthony journal entry dated June 21. Initial reports claimed the journal entry was written just days after her daughter disappeared. However, the full photo as released by the state attorneys office per discovery shows the opposite page seemingly dated 2003 (b,c).

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99 For further access to many of the photos available through the discovery process, readers can visit: Orlando Sentinel http://www.orlandosentinel.com/news/local/caylee anthony/orl casey anthony trialcase photos,0,2398805.photogallery?track=orl mark rib local photobucket WESH 2 http://www.wesh.com/caseyanthony/index.html Central Florida News 13 http://www.cfnews13.com/Features/CaseyAnthony/Default.aspx Nancy Grace on CN N http://www.cnn.com/2008/US/07/10/NGcasefiles/ In addition, a simple keyword search in any mainstream Internet search engine for Casey Anthony should return ample viable results leading interested individuals to further discovery record access points.

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100 APPENDIX B CASEY ANTHONY DISCOVERY DOCUMENTS This appendix contains discovery material made available to the public per a public records request since the materials were exchanged dur ing the discovery process. They were obtained from various news outlet websites. These documents include forensic evidence reports, witness and investigative statements, defendant statements, witness lists with contact information and many other materials pertaining to the Casey Anthony murder case. Browsing these records should give the reader a first hand appreciation of the types and quantity of records exchanged and made available to the public during the criminal discovery process in Florida.

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126 LIST OF REFERENCES Books, Reports & Treatises 23 AM. JUR. 2d Depositions and Discovery 231, 233, 234 (2004). ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELFGOVERNMENT (1948). AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS (3d ed. 1996). AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS, (1996), available at http://www.abanet.org/crimjust/standards/discovery_blk.html (last visited July 14, 2009). AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE DISCOVERY STANDARDS (2d. ed. 1978). AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE, DISCOVERY AND PROCEDURE BEFORE TRIAL (1st ed. 1970). BA LLENTINES LAW DICTIONARY (3d ed. 1969). BLACKS LAW DICTIONARY (4th 1968). BLACKS LAW DICTIONARY (8 th 2004). CHRIS SLOBOGIN AND CHARLES WHITEBREAD, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS (5th ed.). Discovery Documents NEWSGATHERING AN D THE LAW .02 (2007). JEROLD ISRAEL ET AL., CRIMINAL PROCEDURE VOL. 4 (West Group, 1999). JOHN L. WORRALL, CRIMINAL PROCEDURE: FROM FIRST CONTACT TO APPEAL (Jennifer Jacobson ed., 2004). The Justice Project, Expanded Discovery in Criminal Cases avail able at http://www.thejusticeproject.org/~jmiller/wp content/uploads/polpack_discovery hirez native file.pdf (last visited July 13, 2009). LORD ACTON, THE CORRESPONDENCE OF LORD ACTON AND RICHARD SIMPSON VOLUME II (2008). MATTHEW BUNKER, JUSTICE AND THE MEDIA: RECONCILING FAIR TRIALS AND A FREE PRESS (1997). MONRAD PAULSEN, THE PROBLEM OF DISCOVERY IN A CRIMINAL CASE vvi (1961).

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127 NAPHTALI LEWIS AND MEYER REINHOLD, ROMAN CIVILIZATION: THE REPUBLICAN AND THE AUGUSTAN AGE (3d ed.). RUSSELL WEAVER, PRINCIPLES OF CRIMINAL PROCEDURE (3d ed.). Cases & Court Documents Abrams v. United States, 250 U.S. 616, 630 (1919). Brady v. Maryland, 373 U.S. 83 (1963). Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775 (Fla. 4th DCA 1985). Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). Dennis v. United States, 384 U.S. 855, 870 (1966). Gannett Co. v. DePasquale, 443 U.S. 368 (1979). Globe Newspaper Co. v. Superior Court, 457 US 596 (1982). F lorida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988). Florida Star v. B.J.F., 491 U.S. 524 (1989). In re Worrell Enterprises, 419 S.E.2d 271 (V a. App. 1992). Lemon v. Supreme Court, 156 N.E. 84 (1927). Miami Herald v. Lewis, 426 So. 2d 1, 6 (Fla. 1982). Motion for Change of Venue, State v. Casey Marie Anthony, No. 482008CF 015606O (Fla. 9th Cir. Ct. May 4, 2009). Motion for Protective Order, State v. Casey Marie Anthony, No. 48 2008CF 015606O (Fla. 9th Cir. Ct. Feb. 26, 2009). Murphy v. Florida, 421 U.S. 794 (1975). Nixon v. Warner Communications, 435 U.S. 589 (1978). People v. Burton, 189 A.D.2d 532 (N.Y. App. Div. 1993). Piedmont P ublishing v. City of WinstonSalem, 434 S.E.2d 176 (N.C. 1993). Press Enterprise v. California ( Press II) 478 U.S. 1 (1986).

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128 Press Enterprise v. California ( Press I) 464 U.S. 501 (1984). Richmond Newspapers v. Virginia, 448 U.S 555 (1980). Seattle Ti mes Co. v. Rhinehart, 467 U.S. 20 (1984). Sheppard v. Maxwell, 384 U.S. 333 (1966). State v. Cianci 496 A.2d 139 (R.I. 1985). State ex rel. WHIO TV 7 v. Lowe, 673 N.E.2d 1360 (Ohio 1997). United States v. Amodeo, 71 F. 3d 1044, 1048 (2d Cir. 1995). U nited States v. Anderson, 799 F.2d 1438 (11th Cir. 1986). United States v. Burr, 25 F. Cas. 49 (C.C. Va. 1807). United States v. Burr, 25. F. Cas. 30 (C.C. Va. 1807). United States v. Connolly, 321 F.3d 174 (1st Cir. 2003). United States v. Martin, 38 F. Supp. 2d 698, (C.D. Ill. 1999). United States v. Peltz, 18 F.R.D. 394, 398 (S.D.N.Y. 1955). United States v. Proctor & Gamble, 356 U.S. 677 (1958). United States v. Simone, 14 F.3d 833 (3d Cir. 1994). United States v. Suarez, 880 F.2d 626 (2d Cir. 1989). United States v. Van Hipp, 1997 U.S. Dist. LEXIS 24115 at 3 (D. S.C. 1997). United States v. Wecht, 484 F.3d 194 (3d Cir. 2007). Journal Articles Andrew Goldstein, Sealing and Revealing: Rethinking the Rules Governing Public Access to Information Generated Through Litigation, 81 CHIKENT L. REV. 375, 38183 (2006). Anne Cohen, Access to Pretrial Documents Under the First Amendment 84 COLUM. L. REV. 1813 (1984). Armindo Bepko, Public Availability or Practical Obscurity: The Debate Over Public Ac cess to Court Records on the Internet, 49 N.Y. L. SCH. L. REV. 967 (2005).

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129 Arthur Miller, Confidentiality, Protective Orders and Public Access to the Courts 105 HARV. L. REV. 427 (1991) Charles Davis, Access to Discovery Records in Florida Criminal Trials: Public Justice and Public Records 6 J. LAW. & PUB. POL'Y 297 (1994). Daniel Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 MINN. L. REV. 1137 (2002). Diane Bratvold, Protective Orders and the Use of Discovery Materi als Following Seattle Times, 71 MINN. L. REV. 171 (1986) Eugene Cerruti, T hrough the LookingGlass at the Brady Doctrine: Some New Reflections on White Queens, Hob goblins, and Due Process, 94 KY. L. J. 211, 218 (2005). Gary Pinter, Criminal Discovery an d the Costs of Reproduction: A Burden Taxpayers Should Not Have to Bear 26 N. ILL. U. L. REV. 623 (2006). Howard Erichson, Court Ordered Confidentiality in Discovery 81 CHI.KENT L. REV. 357 (2006). Katherine Pownell, The First Amendment and Pretrial D iscovery Hearings: When Should the Press Have Access? 36 U.C.L.A. L. REV. 609 (1989) Kathleen Olson, Courtroom Access After 9/11: A Pathological Perspective 7 COMM. L. & POL'Y 461 (2002) Kristen Blankley, Are Public Records Too Public? Why Personally Identifying Information Should Be Removed from Both Online and Print Versions of Court Documents 65 OHIO ST. L. J. 413 (2004). LaJuana S. Davis, Discovery in Criminal Cases: Obtaining Evidence and Information Necessary for an Effective Defense, 58 ALA. L. REV. 352 (1997). Lynn Oberlander, A First Amendment Right of Access to Affidavits in Support of Search Warrants 90 COLUM. L. REV. 2216 (1990). Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield To New Realities 2006 WIS. L. RE V. 541 (2006). Melissa Coffey, Administrative Inconvenience and the Medias Right to Copy Judicial Records 44. B.C. L. REV. 1263 (2003) Michael Moore, Criminal Discovery 19 HASTINGS L. J. 865 (1968).

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130 Natalie Gomze Velez, Internet Access to Court Reco rds: Balancing Public Access and Privacy 51 LOY. L. REV. 365, 371 (2005). Nicole Dulude, Unlocking Americas Courthouse Doors 11 ROGER WILLIAMS U.L. REV. 193 (2005). Peter Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, 79 WASH. L. REV. 307 (2004). Richard Marcus, Recognizing (At Last) That the Federal Rules Do Not Declare that Discovery is Presumptively Public 81 CHI. KENT L. REV. 331 (2006). Richard Peltz, The Arkansas Proposal on Acce ss to Court Records: Upgrading the Common Law with Electronic Freedom of Information Norms 59 ARK. L. REV. 555 (2006). Robert Fletcher, Pretrial Discovery in State Criminal Cases 12 STAN. L. REV. 293, 294 (1959). Robert Hochman, Brady v Maryland and the Search for Truth in Criminal Trials 63 U. CHI. L. REV. 1673 (1996). Robert Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance 74 Calif. L. Rev. 1567 (1986). Robinson Everett, Discovery in Criminal Cases: in Search of a Standard, 1964 DUKE L. J. 477 (1964). Sarah Hutt, In Praise of Public Access: Why the Government Should Disclose the Identities of Alleged Crime Victims 41 DUKE L. J. 368 (1991). Seymour Moskowitz, Discovering Discovery: Non Party Access to Pretrial Information in the Federal Courts 19382006, 78 U. COLO. L. REV. 817 (2007). Susan P. Koniak, Are Agreements to Keep Secret Information Learned in Discovery Legal, Illegal or Something in Between?, 30 HOFSTRA L. REV. 783 (2002). TwentySecond Annual Review of Crim inal Procedure 81 GEO. L.J. 1267 (1993). Vincent Blasi, The Checking Value in First Amendment Theory 2 AM. B. FOUND. RES. J 521 (1977). William Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 WASH. L. QTR. 279 (1963). Wm. Bradford Middlekauff, What Practitioners Say About Broad Criminal Discovery Practice 9 CRIM. JUST. 14 (1994).

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131 Media Reports Amy Edwards, Florida Laws Open Book on Casey Anthonys Life, ORLANDO SENTINEL, March 15, 2009, available at http://www.orlandosentinel.com/news/local/caylee anthony/orl caseyanthony caylee public records 031509,0,4389536.story (last visited July 9 2009). Amy Robach, Hundreds of pages of new evidence released in Casey Anthony Case; Dan Abrams Discusses, Today Show, March 21, 2009. Alex Weprin, Why is HLN Topping CNN in Primetime? BROADCASTING & CABLE, Mar. 5, 2009, available at http://www.broadcastingcable.com/blog/BC_Beat/11476Why_Is_HLN_Topping_CNN_In_Primetime_.php (last visited June 14, 2009). Bruce Cadwallader, 6 Suspected in ID Thef t Via Court Web Site COLUMBUS DISPATCH Dec. 21, 2007 available at http://www.dispatch.com/live/content/local_news/stories/2007/12/21/clerkit.ART_ART_1 22107_B1_OO8RDCG.html (last visited July 13, 2009). CayleeDaily.com, Disturbing Casey Journal Entry Among Evidence Released, Feb. 18, 2009, http://www.cayleedaily.com/2009/02/disturbing casey journal entry among evidence released/ (last visited July 13, 2009). Dennis Murphy, When Caylee Vanished, MSNBC.com, Dec. 12, 2008, http: //www.msnbc.msn.com/id/28159418/ (last visited July 9, 2009). Dodgy Web Searches Found on Charged Mums PC N. Z. HERALD, N ov. 27, 2008. Drew Petrimoulx, Casey Anthonys Defense to Judge: Delay Ruling on Jail Video, WBDO.com, June 9, 2009, http://wdbo.com/localnews/2009/06/caseys defenseto judge delay.html (last visited July 13, 2009). Etan Horowitz, More people searched online for the Casey Anthony case than the presi dential election, Yahoo says ORLANDO SENTINEL, Dec. 1, 2008, available at http://blogs.orlandosentinel.com/etan_on_tech/2008/12/more people sea.html (last visited J uly 9, 2009). FoxNews.com, Case Against Casey Anthony Could Be In Jeopardy After Confidential Evidence Released April 8, 2009, http://www.foxnews.com/story/0,2933,513298,00.html (last vi sited July 14, 2009). FoxNews.com, Casey Anthony Officially Called a Suspect in Daughter Caylees Disappearance Oct. 3, 2008, http://www.foxnews.com/story/0,2933,431925,00.html (last visited July 9, 2009).

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132 Gigi Stone and Lee Ferran, 500 Pages of Circumstantial Evidence in Casey Anthony Case ABCNews.com, Feb. 19, 2009, http://abcnews.go.com/GMA/US/story?id=6912695&page= 1 (last visited July 13, 2009). Greta Van Susteren, New Video Released in Casey Anthony Case On the Record with Greta Van Susteren, April 6, 2009. Hal Boedecker, Casey Anthony: Jose Baez tells "Today" that diary entry is from 2003; state has "rocksoli d case," Jeanine Pirro says ORLANDO SENTINEL, F eb. 19, 2009, available at http://blogs.orlandosentinel.com/entertainment_tv_tvblog/2009/02/casey ant hony case-4.html (last visited July 13, 2009). Hal Boedeker, Caylee Anthony Factor: It Helps HLN's Nancy Grace Place Second in All Important Age Group, Behind Fox News' Bill O'Reilly ORLANDO SENTINEL, Feb. 24, 2009, available at http://blogs.orlandosentinel.com/entertainment_tv_tvblog/2009/02/caylee anthony factor ithel ps hlns nancy grace place second in allimportant age groupbehindfox ne.html (last visited June 14, 2009). Hal Boedecker, Caylee Anthony Memorial: Lee, George, Cindy Remember Toddler -and Incarcerated Casey, ORLANDO SENTINEL, Feb. 10, 2009, available at http://blogs.orlandosentinel.com/entertainment_tv_tvblog/2009/02/caylee anthony memorialleegeorge cindy remember toddler.html (last visited June 13, 2009). Holly Bristow, Big Oops in Case Against Casey?, MyFoxOrlando.com, April 7, 2009, http://www.myfoxorlando.com/dpp/news/040709_Big_oops_in_case_against_Casey (last visited July 13, 2009). James Rainey, On the Media: The Warm and Cozy Just Doesnt Let Up, L .A. TIMES, Jan. 28, 2009, at A10. Jane Velez Mitchell, Evidence Released in Caylee Anthony Murder Case Issues wi th Jane Velez Mitchell, Feb. 18, 2009. Jane Velez Mitchell, New Photos of Casey Anthony Released, Issues with Jane Velez Mitchell, March 24, 2009. Jeffrey Billman, Our Dumb State: The Casey Anthony Edition, Sept. 11, 2008, ORLANDO WEEKLY, available at http://www.orlandoweekly.com/features/story.asp?id=12610 (last visited June 14, 2009). Katherine Webster, Victim Advocates Want Names, Addresses, Records Offline USA TODAY, Dec. 1, 2003, available at http://www.usatoday.com/tech/news/internetprivacy/20031201victim privacy_x.htm (detailing the plethora of personal data available in c ourt records).

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133 Lee Ferran, Caylee Anthonys Death is Now Official ABCNews.com, Dec. 19, 2008, http://abcnews.go.com/TheLaw/Story?id=6491140&page=1 (last visited July 9, 2009). Matthew Albright, Nietzsche is Dead: Media Frenzy Over Anthonys Death Inappropriate DAILY REVEILLE, Feb. 15, 2009, available at http://www.lsureveille.com/opinion/1.14370521.1437052 (last vi sited June 13, 2009). Mark Schweikert, Judges Can Balance Online Access to Court Records COLUMBUS DISPATCH, Jan. 26, 2008, available at http://www.columbusdispatch.com/live/content/editorials/stories/2008/01/26/Schweikert_ SAT_MUST.ART_ART_012608_A9_RK95G3I.html?sid=101 (last visited July 13, 2009). Marva Hinton, Defense Team Responds to Discovery WDBO. com, March 6, 2009, available at http://wdbo.com/localnews/2009/03/defense team responds to disco.html (last visited July 9, 2009). Nancy Grace, Casey Anthony Arrest Tapes Released Nancy Grace Show, April 6, 2009. Nancy Grace, FBI Test Clears Brother Lee Anthony of Caylee Paternity CNN.com, Mar. 17, 2009, http://transcripts.cnn.com/TRANSCRIPTS/0903/17/ng.01.html (last visited June 13, 2009). Nancy Grace, More Racy Pictures of Casey Anthony Surface CNN.com, Mar. 24, 2009, http://transcripts.cnn.com/TRANSCRIPTS/0903/24/ng.01.html (last visited June 13, 2009). PhotoBucket.com, What Is Photobucket and Why Should I Use It?, http://photobucket.com/faq?catID=29&catSelected=f&topicID=317 (last visited J uly 13, 2009). Sarah Lundy and Amy Edwards, Jose Baez, attorneys haggle over jail video, phone records ORLANDO SENTINEL, May 28, 2009, available at http://www.orlandosentinel.com/news/local/caylee anthony/orl bkcasey anthony 052809,0,1632881.story (last visited July 13, 2009). Steph Watts and Scott Michels, Mom Charged With Murder in Caylee Anthony Case ABCNews.com, Oct. 14, 2008, http://abcnews.go.com/TheLaw/story?id=6032237&page=1 (last visited July 9, 2009). TVNewser.com, Nancy Graces Best Ratings Ever Dec. 12, 2008, http://www.mediabistro.com/tvnewser/cnn/nancy_graces_best_ratings_ever_103301.asp (last visited June 14, 2009). TV.NYTimes.com, 20/20 Episode Guide: Finding Caylee Dec. 12, 2008, http://tv.nytimes.com/episode/83958/2020/overview (last visited July 9, 2009).

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134 USAToday.com, Prosecutors Release More Info in Caylee Anthony Case April 6, 2009, http://blogs.usatoday.com/ondeadline/2009/04/prosecutors releasemore info in cayleeanthony case.html (last visited July 9, 2009). Walter Pacheco, Caylee Anthony Mourners Gather to Support George and Cindy ORLANDO SENTINEL, Feb. 10, 2009, available at http://www.orlandosentinel.com/news/local/caylee anthony/ orl bkcaylee anthony funeral 021009,0,6225991.story (last visited June 13, 2009). Walter Pacheco, Media Frenzy Cant Penetrate Casey Anthonys Cell ORLANDO SENTINEL, Jan. 7, 2009, available at http://www.orlandosentinel.com/news/local/orange/orl caseytv0709jan07,0,3317271.story (last visited June 14, 2009). WESH.com, Hundreds Mourn Caylee At Memorial Service Feb. 10, 2009, http://www.wesh.com/news/18679508/detail.html (last visited June 13, 2009). WESH.com, Official Charges Filed Against Casey Anthony Aug. 5th 2008, http://www.w esh.com/news/17099679/detail.html (last visited July 9, 2009). Other American Bar Association, About Criminal Justice Standards available at http://www.abanet.org/crimjust/standards/ (last visited July 14, 2009). E mail from Amy Edwards, Reporter, ORLANDO SENTINEL, to Brian Pafundi, Graduate Student, University of Florida (Jan. 22, 2009 8:53 EST)(on file with author). E mail from Bradley Burnette, attorney, to Brian Pafundi, Graduate Student, University of Florida (Jan. 21, 2009, 10:10 EST)(on file with author). E mail from Sarah Lundy, Reporter, ORLANDO SENTINEL, to Brian Pafundi, Graduate Student, University of Florida (March 6, 2009, 13:09 EST)(on file with author). Matthew Durose and Patr ick Langan State Court Sentencing of Convicted Felons 2002, Dept. of Justice, available at http://www.ojp.usdoj.gov/bjs/pub/ascii/scscfst.txt (last visited July 13, 2009). Nancy Grace Ho me Page, http://www.cnn.com/CNN/Programs/nancy.grace/ (last visited June 14, 2009). On the Record w/ Greta: The Caylee Anthony Case, http://www.foxnews.com/ontherecord/caylee/index.html (last visited June 14, 2009).

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135 OrlandoSentinel.com, Photos: Casey Anthony Evidence Released April 6, 2009, http://www.orlandosentinel.com/news/local/caylee anthony/orl photos casey anthony discovery 040609,0,4477109.photogallery (last visited July 13, 2009). Reporters Committee for Freedom of the Press, Op en Government Guide available at http://www.rcfp.org/ogg/ (last visited July 14, 2009). Statutes, Court Rules and Constitutional Amendments ALASKA R. CRIM. P. 16. ARK. R. CRIM. P. 19.3. ARIZ. R. CRIM. P. 15.4. CAL. GOVT. CODE 6254 (b) (2008). COLO. R. CRIM. P. 16. DEL. CODE ANN. tit., 10002 (2008). FED. R CIV. PRO. 26 FED. R. CRIM. P. 16. FLA. R. CRIM P. 3.220. FLA. STAT. 119.011 (2008). FLA. STAT. 119.071 (2008). GA. CODE ANN. 5018 72 (2009) HAW. R. PENAL P. 16. 5 ILL. COMP. STAT. 140/7 (2008). ILL. SUP. CT. R. 415. LA. REV. STAT. 44:3 (2008). MD. R. CRIM. P. 4262. MINN. R. CRIM. P. 9.03. MISS. URCCC 9.04.

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136 MO. REV. STAT. 610.021 (2008). MONT. CODE ANNO. 46 15326 (2008). N.J. CT. R. 3:133. N. Y. CRIM PROC. LAW 240.50 (2009). OHIO REV CODE ANN. 149.43 (2009). OKLA. STAT. tit. 51 24A.12 (2009). OR. REV. STAT. 192.501 (2007). TEX. CODE CRIM. PROC. art. 39.14 (2009). TEX. GOV'T CODE 552.103 (2009). U.S. CONST. amen d. I. U.S. CONST. amend. VI. U.S. CONST. amend. XIV, sect. 1. UTAH R. CRIM. P. RULE 16. VT. PUB. ACC. CT. REC. R. 6. VT. R. CRIM. P. 16. WASH. CT. R. 4.7. WYO. STAT. ANN. 16 4 203 (2009).

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137 BIOGRAPHICAL SKETCH Brian was born in Dunedin, Florida in 1982. He resided in Palm Harbor with his parents Barbara and Ted and older brother Jason, until heading north to Gainesville and the University of Florida. His undergraduate studies included a major in political science, with a certificate in internation al relations and a minor in crimino l ogy As an undergraduate, Brian began volunteering with the Citizens Access Project, a legal research project in the College of Journalism and Communications that studies open records and meetings laws. This work sparked Brians interest in the field of communications law and policy and led to his pursuit of this m asters degree. Brian is currently a second year law student at the University of Floridas Levin College of Law and hopes to practice public interest law upon graduation in 2011. In 2002, Brian met his beautiful wife Deanna. They were married on November 11, 2007 at a beautiful seaside ceremony in Tampa.