Darren Chaker – Criminal and Civil Records Are Public Records

Darren-Chaker, sunset in California
Article by Darren-Chaker

Criminal records are public records, says Darren Chaker. When trying  obtain an order to seal-court-record or expungement of a criminal record, it is important to note a common law right of access by the public and media to criminal judicial proceedings, which pre-dates the Constitution, has long been recognized by Anglo-American courts. See Richmond Newspapers v, Virginia, 448 U.S. 555, 596 (1980). After years of conflict among the federal courts, the United States Supreme Court, when faced squarely with the issue, held that a First Amendment Constitutional right to access to criminal trials existed. Id: Posey-Gelber, Constitutional law Contemporaneous Access to Judicial Records in Civil Trials, – In Re Reporters Committee for Freedom of the Press, 773 F.2d 1325 (1985). 9 Whittier L. Rev. 67, 68 (1987). In recognizing a First Amendment right of access in criminal matters, Chief Justice Burger, in a plurality opinion, reasoned that criminal trials have historically been presumptively open to the public. Richmond Newspapers, 448 U.S. at 564-69. In dicta, the Court in Richmond Newspapers noted “that historically both civil and criminal trials have been presumptively open.” Id. At 580 n. 17. After Richmond Newspapers, the Supreme Court decided several other cases which expanded the right of access of the media and public in other areas relating to criminal proceedings. See Globe Newspapers v. Superior Court, 457 U.S. 596 (1982); Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1982).

Additionally, Darren Chaker notes several federal circuit courts have held that a constitutional right of access attaches in certain civil proceedings. See Bechamps, Sealed Out of Court Documents: Wlien Does The Public Have A Right To Know? 66 Notre Dame L. Rev. 117,133 (1990); Westmoreland v. Columbia Broadcasting System. 752 F.2d 16 (2d Cir. 1984), cert, denied, 472 U web based collaboration tools.S. 1017 (1985); Publkker Indus., Inc. v. Cohen. 733 F.2d 1059 (3d Cir. 1984); In re Continental 111. Sec. Litig. 732 F.2d 1302 (7th Cir. 1984); Brown & Williamson Tobacco Corp. v. FTC 710 F.2d 1165 (6th Cir. 1983), cert, denied 465 U.S. 1100(1980).

Allowing such access “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) ( “Press-Enterprise I”). As former Chief Justice Burger wrote, “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers, Inc., 448 U.S. at 572.

Indeed, open access to judicial proceedings is not just a beneficial practice; in many instances, it is a constitutional mandate. Court proceedings related to criminal trials in particular are subject to a First Amendment right of access – a right that “permits the public to participate in and serve as a check upon the judicial process – an essential component in our structure of self-government.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982); see also Richmond Newspapers, Inc., 448 U.S. at 596 (Brennan, J., concurring) (citation and internal quotation marks omitted) (“The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power[.]”).

Thus the above factors weigh against record sealing unless it can be proven requirements under state law have been met. These requirements often include proof of factual innocence. For example, California “[Penal Code] section 851.8 is for the benefit of those defendants who have not committed a crime.  It permits those petitioners who can show that the state should never have subjected them to the compulsion of the criminal law — because no objective factors justified official action — to purge the official records of any reference to such action. . .  …”  (People v. Matthews (1992) 7 Cal.App.4th 1052, 1056.) ws a person to seal and destroy records based upon a showing of factual innocence.  Many states, like Nevada, Arizona, and Texas, have similar statutes and it is wise to seek the advice of an attorney in your state if record sealing and destruction is available to you.

Darren Chaker and record sealing.
Darren Chaker and record sealing.