Denial of Public Access to Trial Exhibits in

Child Pornography Prosecutions

C ourts m ay deny public access to exhibits entered into evid en ce in ch ild p o rnography p ro secu tio n s

February 10, 1994

M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l

C r im in a l D iv is io n

Y ou have ask ed w h eth er courts m ay deny public access to ex h ib its e n te re d into 

ev id en ce in ch ild pornography p ro se c u tio n s.1 B ecau se the privacy in terests o f the 

children d ep icted in such trial ex h ib its o v erco m e the general p resu m p tio n in favor 

o f public access to ju d icial records, w e co n clu d e th at p ro secu to rs m ay ask c o u rts to 

p rohibit access to child p o rn o g rap h y ex h ib its, and th at courts m ay e n te r orders 

p roviding this ty p e o f relief.

I. The Theory Supporting Public Access to Trial Exhibits

“[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v.

Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted). 

Moreover, this common law right of access to judicial records does not depend “on 

a proprietary interest in the document or upon a need for it as evidence in a lawsuit.” Id. But “the right to inspect and copy judicial records is not absolute. Every 

court has supervisory power over its own records and files, and access has been 

denied where court files might have become a vehicle for improper purposes.” Id.

at 598. In this respect, “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts 

and circumstances of the particular case.” Id. at 599 (footnote omitted).

While the Supreme Court has acknowledged the common law right of access to 

court records, the Court has eschewed constitutional theories proffered in support of 

a more expansive right to inspect court documents.2 Nixon, 435 U.S. at 608-10

1 The nghl o f access afforded to the general public is coterm inous with the nght of access granted to the 

press Pell v. Procunier, 417 U S 817, 833-34 (1974); c f also Nixon v W arner C om munications, Inc , 435 

U S. 589, 609 (1978) (“The Firsi A m endm ent generally grants the press no right to inform ation about a trial 

superior to that of the general public "). Hence, the term “public access’’ should be regarded as synonym ous 

with press access.

2 In discussing access to actual court proceedings, the Supreme C ourt has consistently distinguished 

between the Sixth A m endm ent, which em pow ers defendants to demand open proceedings in crim inal cases, 

see, e.g , W aller v. G eorgia, 461 V S 39, 44-47 (1984), and the First A m endm ent, w hich grants the press 

and public the qualified right to attend crim inal proceedings even when the defendant wishes to have the 

proceedings closed See, e g , Press-E nterprise Co v Superior Court o f California, 478 U.S 1, 7-13 

(1986); G lobe N ew spaper Co v Superior C ourt o f N orfolk County, 457 U.S 596, 603-07 (1982) These

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O pinions of the O ffice o f Legal Counsel

(rejecting arguments based on First and Sixth Amendments). With regard to the 

First Amendment guarantee of freedom o f the press, the Court has held that, within 

the courthouse, “ ‘a reporter’s constitutional rights are no greater than those of any 

other m ember of the public.’” Id. at 609 (quoting E ster v. Texas, 381 U.S. 532, 

589 (1965) (Harlan, J., concurring)). W ith respect to the Sixth Amendment right 

to a public trial, the Court has concluded that this requirement “is satisfied by the 

opportunity of members of the public and the press to attend the trial and to report 

what they have observed.” Id. at 610. Thus, the single rationale supporting public 

access to trial exhibits flows from the common law right to inspect and copy judicial records. Id. at 597; Valley Broad. Co. v. U nited States Dist. Court, 798 F.2d 

1289, 1292-93 (9th Cir. 1986).

II. Presumptions, Privacy Concerns, and the Balancing Test

Application of the common law right of access to judicial records and documents requires a balancing of the factors militating for and against public viewing 

o f the records and documents at issue. Nixon, 435 U.S. at 602; United States v.

Criden, 648 F.2d 814, 819 (3d Cir. 1981). The starting point for the balancing test 

“is the presumption — however gauged — in favor of public access to judicial 

records.” Nixon, 435 U.S. at 602; see also Valley Broad., 798 F.2d at 1293 (collecting cases). Because of this presumption, the press and public ordinarily must be 

allowed to inspect and copy trial exhibits. Id:, Criden, 648 F.2d at 823. But even 

when public disclosure has occurred through the admission of evidence at trial, 

“there are instances where the right to [inspect and] copy evidence already made 

public has been denied pursuant to the court’s power to prevent use of evidence for 

improper purposes.” Id. at 825. For example, courts retain the authority to deny 

public access to court records that m ight be “ ‘used to gratify private spite or promote public scandal.’” Nixon, 435 U.S. at 598. Courts likewise may prohibit public access to trial exhibits that “would result in the great public embarrassment of a 

third party.” Valley Broad., 798 F.2d at 1294 n.7. For this reason, a district court 

could properly foreclose public access to videotapes made by a defendant prior to 

raping a kidnap victim, even though the “evidence had been shown in the courtroom,” “because further broadcast would support sensationalism, would not serve 

the public interest, and ‘would impinge upon the precious privacy rights of . . . the 

unfortunate victim of the crime.’” Criden, 648 F.2d at 825 (quoting In re A pplication o f KSTP Television, 504 F. Supp. 360, 362 (D. Minn. 1980)).

The privacy concerns that can justify denial of public access to trial exhibits are 

most compelling in the context of child pornography prosecutions. See Valley

Broad., 798 F.2d at 1294 (factors weighing against public access to court records 

include “the likelihood of an improper use, ‘including publication of . . . pornodecisions, o f course, do noi speak to the question o f public access to court records and exhibits introduced at 

tnal. See U nited Slates v Beckham , 789 F 2d 4 0 1 , 411, 413 (6th Cir. 1986) (contrasting First A m endm ent 

right to attend tn al and Sixth Amendment right to open proceedings with com m on law right to inspect and 

copy public records).
D enial o f Public Access to Trial Exhibits m C hild Pornography Prosecutions

graphic . . . materials’”) (quoting United States v. Criden, 648 F.2d 814, 830 (3d 

Cir. 1981) (Weis, J., concurring in part and dissenting in part)). As the Supreme 

Court has explained, pornographic materials involving children “are a permanent 

record of the children’s participation and the harm to the child is exacerbated by 

their circulation.” N ew York v. Ferber, 458 U.S. 747, 759 (1982). Moreover, distribution of child pornography “violates ‘the individual interest in avoiding disclosure of personal matters.’” Id. at 759 n.10 (quoting Whalen v. Roe, 429 U.S. 589, 

599 (1977)). Consequently, children who appear in pornographic pictures and 

films suffer a personal invasion with each viewing of the material.3 Indeed, one 

district court employed precisely this reasoning in denying press access to videotapes depicting relations and conversations between a kidnap victim and the kidnapper who subsequently raped her. In re Application o f KSTP Television, 504 F. 

Supp. at 362 (“Release of the tapes for public dissemination would impinge upon 

the precious privacy rights of Mary Stauffer, the unfortunate victim of the crime.”). 

Because the tapes had previously been shown during the trial of the kidnapper, the 

district court concluded that “any additional information inherent in the video tape 

form can serve only to accent the morbid and lurid details of the crime and pander 

to lascivious curiosity.” Id. at 363.

The decision in KSTP Television has given rise to the settled principle that concern for the privacy of third parties can override the presumption of access to judicial records. Valley Broad., 798 F.2d at 1294 & n.7 (citing KSTP Television with 

approval); In re Application o f National Broad. Co., 653 F.2d 609, 619-20 (D.C. 

Cir. 1981) (same); Criden, 648 F.2d at 825 (same). In child pornography prosecutions, this principle rebuts the presumption of public access to trial exhibits. See

id. (discussing KSTP Television)-, cf. also Nixon, 435 U.S. at 598 (noting that “the 

common-law right of inspection has bowed before the power of a court to insure 

that its records are not ‘used to gratify private spite or promote public scandal’ 

through the publication of ‘the painful, and sometimes disgusting, details of a divorce case’”) (quoting In re Caswell, 29 A. 259, 259 (R.I. 1893)). By interposing 

concern for the privacy of the children who appear in the pornographic exhibits 

admitted at trial, the government can defeat common law claims asserted in support 

of public access to such exhibits, and courts can take action to prevent the public 

availability of the exhibits.

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

1 This problem is com pounded when the press and public receive perm ission to copy exhibits in child 

pornography prosecutions.

[A] press representative in reporting a trial may adequately inform the general public about a 

challenged m otion picture film by describing it as pornographic. It is not necessary that the film 

or excerpts be released for use in the evening TV news Indeed, to perm it such a showing under 

the guise of news would only thwart the laws prohibiting exhibition.

Criden, 648 F.2d at 831 (W eis, J , concurring in part and dissenting in part)

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