1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-1994

United States of America v. A.D.

Precedential or Non-Precedential:

Docket 93-3197

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States of America v. A.D." (1994). 1994 Decisions. Paper 79.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/79
1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

N0S. 93-3197, 93-3205, 93-3209, 93-3225 

 

UNITED STATES OF AMERICA 

v. 

A.D. 

PG PUBLISHING COMPANY, 

PUBLISHER OF THE PITTSBURGH POST GAZETTE* 

 Appellant in No. 93-3197 

(*Pursuant to Rule 12(a), F.R.A.P.) 

UNITED STATES OF AMERICA 

v. 

T.Y. 

PG PUBLISHING COMPANY, 

PUBLISHER OF THE PITTSBURGH POST GAZETTE* 

 Appellant in No. 93-3205 

(*Pursuant to Rule 12(a), F.R.A.P.) 

UNITED STATES OF AMERICA 

v. 

T.Y. 

THE TRIBUNE-REVIEW PUBLISHING COMPANY* 

 Appellant in No. 93-3209 

(*Pursuant to Rule 12(a), F.R.A.P.) 
2 
3 

UNITED STATES OF AMERICA 

v. 

A.D. 

TRIBUNE-REVIEW PUBLISHING COMPANY* 

 Appellant in No. 93-3225 

(*Pursuant to Rule 12(a), F.R.A.P.) 

 

On Appeal From the United States District Court 

For the Western District of Pennsylvania 

(D.C. Crim. Action Nos. 93-00053-01, 93-00054-01) 

 

Argued November 4, 1993 

 BEFORE: SLOVITER, Chief Judge, and STAPLETON, 

 Circuit Judge, and RESTANI,** Judge,

 United States Court of International

 Trade 

(Opinion Filed: July 8, 1994) 

 

 

W. Thomas McGough, Jr. (Argued) 

Marketa Sims 

Reed, Smith, Shaw & McClay 

435 Sixth Avenue 

Pittsburgh, PA 15219 

 Attorneys for Appellant 

 PG Publishing Company 

Susan A. Yohe (Argued) 

Ronald D. Barber 

Strassburger, McKenna, Gutnick & Potter 

322 Boulevard of the Allies 

Pittsburgh, PA 15222 

 Attorneys for Appellant 

 Tribune-Review Publishing Company 

 
4 

** Honorable Jane A. Restani, Judge of the United States Court of 

 International Trade, sitting by designation. 
5 

Thomas W. Corbett, Jr. 

United States Attorney 

Paul J. Brysh (Argued) 

Assistant United States Attorney 

633 U.S. Post Office and Courthouse 

Pittsburgh, PA 15219 

 Attorneys for Appellee 

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 This appeal requires us to apply the confidentiality 

provisions of the Juvenile Delinquency Act, 18 U.S.C. §§ 5031-42 

("the Act"). We hold that the Act gives district judges 

authority to regulate access to the record of proceedings under 

the Act on a case-by-case basis through a balancing of interests. 

I. 

 A.D. and T.Y., juveniles, were arrested in connection 

with gang-related armed robberies of Pittsburgh-area convenience, 

clothing, and food stores. To initiate federal juvenile 

delinquency proceedings against A.D. and T.Y., the United States 

filed informations. The government also sought to detain A.D. 

and T.Y., so detention hearings were scheduled before a 

magistrate. PG Publishing Co., publisher of the Pittsburgh PostGazette, learned that the government would seek to close the 

detention hearings and appeared before the magistrate to object. 
6 

After hearing from the Post-Gazette, the government, and the 

juveniles, the magistrate closed the detention hearings on the 

ground that the Act mandates closure of all federal juvenile 

delinquency proceedings. 

 Following the detention hearings, the Post-Gazette

filed motions to intervene in the two delinquency proceedings, as 

well as a motion to open the record of the detention hearings and 

to hold all further proceedings in open court. Tribune-Review 

Publishing Co., publisher of the Tribune-Review, filed similar 

motions. 

 In support of their motions, the newspapers argued that 

the Act does not mandate closed proceedings and records and that, 

in any event, the First Amendment requires the district court to 

make a discretionary determination on the need for 

confidentiality on a case-by-case basis. The government argued 

that the Act mandates closed proceedings and records and that the 

Constitution permits closure. A.D. and T.Y. also argued in favor 

of closure. The district judge granted the motions to intervene 

but denied the motions to open the proceedings and to unseal the 

records. The newspapers filed this timely appeal.0 

 

0

Before this opinion was published, the proceedings against A.D. 

and T.Y. apparently concluded and the outcomes were reported in 

the press. See Mike Bucsko, 15 years for armed robber, 18, 

Pittsburgh Post-Gazette, Dec. 17, 1993, at B12. We nevertheless 

find that this case is not moot. The newspapers sought not only 

access to the court proceedings but also to the record of the 

proceedings, and such relief could still be granted. 

 In addition, we are of the opinion that the dispute 

between the newspapers and the government over access to juvenile 

proceedings is "capable of repetition, yet evading review." 

Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 
7 

II. 

 Under the Act, persons who violate the laws of the 

United States before reaching their eighteenth birthday may be 

subject to federal juvenile delinquency proceedings, provided 

that proceedings against them begin before their twenty-first 

birthday. §§ 5031-32. Provision is made for representation by 

counsel, § 5034, custody prior to disposition, §§ 5033 & 5035, 

and speedy trials, § 5036. After a juvenile is adjudged 

delinquent, a dispositional hearing is held, and the juvenile may 

be committed to official detention, placed on probation, or 

ordered to make restitution. § 5037(a). Observation and study 

of the juvenile can also be ordered. § 5037(d). Juveniles 

cannot be jailed with adults, and must be provided adequate 

facilities, care, and treatment. § 5039. Juveniles suspected of 

engaging in certain conduct may be subject to criminal 

prosecution as adults. § 5032. 

 The Act also contains several confidentiality 

provisions, which are at issue in this case. The first of these, 

§ 5032, provides in relevant part: 

 

U.S. 498, 515 (1911). "[I]n the absence of a class action, the 

'capable of repetition, yet evading review' doctrine [is] limited 

to the situation where two elements combined: (1) the challenged 

action was in its duration too short to be fully litigated prior 

to its cessation or expiration, and (2) there was a reasonable 

expectation that the same complaining party would be subjected to 

the same action again." Weinstein v. Bradford, 423 U.S. 147, 149 

(1975). Both elements combined in this case -- the newspapers 

promptly sought access to the juvenile court proceedings, but 

were unable to complete litigation before the proceedings 

terminated, and other proceedings against other juveniles almost 

certainly will follow, to which the newspapers are again likely 

to seek access. 
8 

. . . any proceedings against [an alleged 

juvenile delinquent] shall be in an 

appropriate district court of the United 

States. For such purposes, the court may be 

convened at any time and place within the 

district, in chambers or otherwise. . . . 

The second disputed provision, § 5038, provides in relevant part: 

(a) Throughout and upon completion of the 

juvenile delinquency proceedings, the records 

shall be safeguarded from disclosure to 

unauthorized persons. The records shall be 

released to the extent necessary to meet the 

following circumstances: 

(1) inquiries received from another 

court of law; 

(2) inquiries from an agency 

preparing a presentence report for 

another court; 

(3) inquiries from law enforcement 

agencies where the request for 

information is related to the 

investigation of a crime or a 

position within that agency; 

(4) inquiries, in writing, from the 

director of a treatment agency or 

the director of a facility to which 

the juvenile has been committed by 

the court; 

(5) inquiries from an agency 

considering the person for a 

position immediately and directly 

affecting the national security; 

and 

 

(6) inquiries from any victim of such 

juvenile delinquency, or if the victim 

is deceased from the immediate family of 

such victim, related to the final 

disposition of such juvenile by the 

court in accordance with section 5037. 

 

Unless otherwise authorized by this section, 

information about the juvenile record may not 
9 

be released when the request for information 

is related to an application for employment, 

license, bonding, or any civil right or 

privilege. Responses to such inquiries shall 

not be different from responses made about 

persons who have never been involved in a 

delinquency proceeding. 

* * * 

 

(c) During the course of any juvenile 

delinquency proceeding, all information and 

records relating to the proceeding, which are 

obtained or prepared in the discharge of an 

official duty by an employee of the court or 

an employee of any other government agency, 

shall not be disclosed directly or indirectly 

to anyone other than the judge, counsel for 

the juvenile and the Government, or others 

entitled under this section to receive 

juvenile records. 

 * * * 

(e) Unless a juvenile who is taken into 

custody is prosecuted as an adult neither the 

name nor picture of any juvenile shall be 

made public in connection with a juvenile 

delinquency proceeding. 

III. 

 The government argues that these confidentiality 

provisions mandate the closure of all juvenile proceedings and 

the sealing of all records. We decline the newspaper's 

invitation to decide whether this construction of the Act is 

consistent with the First Amendment. Nevertheless, we start with 

the proposition that the task of statutory interpretation we here 

face implicates First Amendment values and that the government's 

construction of the Act raises a substantial constitutional 

question. 
10 

 The First Amendment provides a right of public access 

in both civil and criminal cases.0 We have catalogued the 

interests protected by that right in the context of criminal 

proceedings: 

First, public access to criminal proceedings 

promotes informed discussion of governmental 

affairs by providing the public with a more 

complete understanding of the judicial 

system. This public access and the knowledge 

gained thereby serve an important educative 

interest. Second, public access to criminal 

proceedings gives the assurance that the 

proceedings were conducted fairly to all 

concerned and promotes the public perception 

of fairness. Public confidence in and 

respect for the judicial system can be 

achieved only by permitting full public view 

of the proceedings. Third, public access to 

criminal proceedings has a significant 

community therapeutic value because it 

provides an outlet for community concern, 

hostility, and emotion. Fourth, public 

 

0

See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 3 

(1986) ("Press-Enterprise II") ("First Amendment right of access 

to the transcript of a preliminary hearing growing out of a 

criminal prosecution"); Press-Enterprise Co. v. Superior Court of 

California, 464 U.S. 501, 508-10 (1984) ("Press-Enterprise I") 

(First Amendment values create presumption of openness for voir 

dire); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 

(1980) (plurality opinion ) ("the right to attend criminal trials 

is implicit in the guarantees of the First Amendment"); United 

States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994) ("the First 

Amendment right of access attaches to a post-trial hearing to 

investigate jury misconduct"); Republic of Philippines v. 

Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir. 1991) ("the 

First Amendment, independent of the common law, protects the 

public's right of access to the records of civil proceedings"); 

Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 

1984) ("the First Amendment embraces a right of access to civil 

trials"); United States v. Criden, 675 F.2d 550, 554 (3d Cir. 

1982) ("Criden II") ("the public has a first amendment right of 

access to pretrial suppression, due process, and entrapment 

hearings"). 
11 

access to criminal proceedings serves as a 

check on corrupt practices by exposing the 

judicial process to public scrutiny, thus 

discouraging decisions based on secret bias 

or partiality. Fifth, public access to 

criminal proceedings enhances the performance 

of all involved. Finally, public access to 

criminal proceedings discourages perjury. 

United States v. Criden, 675 F.2d 550, 556 (3d Cir. 1982) 

("Criden II") (internal quotation marks omitted) (citing Richmond 

Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)). 

 This "First Amendment right of access is not absolute." 

United States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994). 

Competing values may warrant a denial of access to proceedings 

and records in some instances. See Press-Enterprise Co. v. 

Superior Court, 478 U.S. 1, 9 (1986) ("Press-Enterprise II"). 

Where there has been such a denial, whether resulting from 

legislative or judicial action, courts confronted with a First 

Amendment challenge ask whether the closure is "essential to 

preserve higher values" and "narrowly tailored to serve that 

interest." Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 

510 (1984) ("Press-Enterprise I"). If an alternative would serve 

the interest well and intrude less on First Amendment values, a 

denial of public access cannot stand. See United States v. 

Raffoul, 826 F.2d 218, 224-25 (3d Cir. 1987). For this reason, 

the proponent of a legislatively imposed denial of access in a 

stipulated category of cases, where the trial judge is not free 

to weigh the competing interests on a case-by-case basis, has a 

difficult burden to carry. 
12 

 Juvenile courts have been created in every state during 

the last century. See In re Gault, 387 U.S. 1, 15-19 (1967). 

Recognizing the special sensitivity of information regarding 

juveniles and the impact that public dissemination of such 

information may have on the youths involved, states have devised 

a number of different approaches to accommodate these concerns. 

For the most part, these have not involved blanket prohibitions 

of access. See Note, The Public Right of Access to Juvenile 

Delinquency Hearings, 81 Mich L. Rev. 1540, 1540 n.3 (1983). It 

remains true, as the Supreme Court observed in 1967, that 

"[d]isclosure of court records is discretionary with the judge in 

most jurisdictions." Gault, 387 U.S. at 24. 

 Neither the Supreme Court nor this court has had 

occasion to decide whether an across-the-board ban on access to 

juvenile proceedings would accord with the First Amendment. The 

Supreme Court did address in Globe Newspaper Co. v. Superior 

Court, 457 U.S. 596 (1981), whether the First Amendment permits a 

statutory bar to public access to criminal trials during the 

testimony of minor victims of sex crimes. The appellee urged 

that the statute served two compelling state interests: "the 

protection of minor victims of sex crimes from further trauma and 

embarrassment; and the encouragement of victims to come forward 

and testify in a truthful and credible manner." Id. at 607. The 

Supreme Court acknowledged that both of these interests were 

compelling. It held, however, that neither would justify an 

across-the-board ban on access in every instance involving a 

minor sex victim: 
13 

[A]s compelling as that interest [in 

protecting minor victims of sex crimes] is, 

it does not justify a mandatory closure rule, 

for it is clear that the circumstances of the 

particular case may affect the significance 

of the interest. A trial court can determine 

on a case-by-case basis whether closure is 

necessary to protect the welfare of a minor 

victim. Among the factors to be weighed are 

the minor victim's age, psychological 

maturity and understanding, the nature of the 

crime, and desires of the victim, and the 

interests of parents and relatives. Section 

16A, in contrast, requires closure even if 

the victim does not seek the exclusion of the 

press and general public, and would not 

suffer injury by their presence. . . . If 

the trial court [in the case before us] had 

been permitted to exercise its discretion, 

closure might well have been deemed 

unnecessary. In short, § 16A cannot be 

viewed as a narrowly tailored means of 

accommodating the State's asserted interest: 

That interest could be served just as well by 

requiring the trial court to determine on a 

case-by-case basis whether the State's 

legitimate concern for the well-being of the 

minor victim necessitates closure. Such an 

approach ensures that the constitutional 

right of the press and the public to gain 

access to criminal trials will not be 

restricted except where necessary to protect 

the State's interest. 

Id. at 607-08. The Supreme Court added: 

 We emphasize that our holding is a 

narrow one: that a rule of mandatory closure 

respecting the testimony of minor sex victims 

is constitutionally infirm. In individual 

cases, and under appropriate circumstances, 

the First Amendment does not necessarily 

stand as a bar to the exclusion from the 

courtroom of the press and general public 

during the testimony of minor sex-offense 

victims. But a mandatory rule, requiring no 

particularized determinations in individual 

cases, is unconstitutional. 

Id. at 611, n.27. 
14 

 Globe is not controlling in this case. It concerned 

criminal trials, which historically have been open to the press 

and general public. See Globe, 596 U.S. at 605 ("when our 

organic laws were adopted, criminal trials both here and in 

England had long been presumptively open") (quoting Richmond 

Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980) (plurality 

opinion)). No centuries-old tradition of openness exists for 

juvenile proceedings, which are a relatively recent creation, and 

proceedings to determine whether a juvenile is a delinquent are 

not generally regarded as criminal proceedings. See, e.g., 

United States v. Brian N., 900 F.2d 218, 220 (10th Cir. 1990) 

("Under [the Juvenile Delinquency Act], prosecution results in an 

adjudication of status, not a criminal conviction."). 

Nevertheless, the detention and delinquency proceedings called 

for in the Act are closely analogous to criminal proceedings, and 

all the public interests in criminal proceedings that we 

catalogued in Criden II, 675 F.2d at 556, seem present and 

equally cogent here. Of equal importance, we cannot say that the 

countervailing interests that would be served by denying public 

access to proceedings under the Act are any more compelling than 

those that the Supreme Court acknowledged were being served by 

the challenged statute in Globe. 

 Thus, while Globe is not on all fours with the 

situation before us, it does suggest that an across-the-board ban 

on access to juvenile proceedings under the Act would pose a 

substantial constitutional issue. Accordingly, we will apply the 

well established rule of statutory construction articulated in 
15 

DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 

568, 575 (1988): 

[W]here an otherwise acceptable construction 

of a statute would raise serious 

constitutional problems, the Court will 

construe the statute to avoid such problems 

unless such construction is plainly contrary 

to the intent of Congress. Catholic Bishop, 

supra, at 499-501, 504. This cardinal 

principle has its roots in Chief Justice 

Marshall's opinion for the Court in Murray v. 

The Charming Betsy, 2 Cranch 64, 118 (1804), 

and has for so long been applied by this 

Court that it is beyond debate. . . . As was 

stated in Hooper v. California, 155 U.S. 648, 

657 (1895), "[t]he elementary rule is that 

every reasonable construction must be 

resorted to, in order to save a statute from 

unconstitutionality." This approach not only 

reflects the prudential concern that 

constitutional issues not be needlessly 

confronted, but also recognizes that 

Congress, like this Court, is bound by and 

swears an oath to uphold the Constitution. 

Accordingly, in the absence of an unambiguous directive to the 

contrary, we are reluctant to attribute to Congress an intention 

to deprive district courts of discretion to strike on a case-bycase basis the balance between the interests protected by the 

First Amendment and competing privacy interests. When we examine 

the Act with care, we fail to find such a directive. 

IV. 

 We first focus on § 5032 and its provision that "court 

may be convened at any time and place within the district, in 

chambers or otherwise." This provision, in our view, evidences a 

congressional expectation that district judges will exercise 

their discretion when they decide where to hold hearings under 
16 

the Act. Moreover, the addition of "in chambers or otherwise" 

suggests that this discretion is to include a decision regarding 

the availability and degree of public access -- we can think of 

no other persuasive reason for the inclusion of this clause. 

Thus, to our minds, § 5032 provides strong evidence that Congress 

did not intend an across-the-board ban on public access to 

proceedings under the Act. 

 When we turn to § 5038(a), we find additional evidence 

for this proposition and implicit recognition that the court 

retains discretion with respect to access to judicial records. We 

read this section as directed to protection of the court's

records "of the juvenile delinquency proceeding," including the 

transcript.0 As a result, we understand the term "released" to 

refer to action the court authorizes. Section 5038(a) does not 

mandate denial of access to the records of a proceeding -- it 

provides only that such records be "safeguarded against 

disclosure to unauthorized persons." § 5038(a) (emphasis 

supplied). The court is barred from authorizing access only in 

those situations involving "information about the juvenile record 

. . . when the request for information is related to an 

application for employment, license, bonding or any civil right 

or privilege." Even in these few situations singled out in the 

 

0

The focus on protecting the court's record was clearer under the 

version of § 5038(a) which existed prior to its amendment in 1984 

and provided that "the district court shall order the entire file 

and record of such proceeding sealed." There is no suggestion in 

the text or legislative history of the 1984 amendment that the 

subject matter of this subsection was being changed. See Sen. 

Rep. No. 225, 98th Cong., 2d Sess. 387-93, reprinted in 1984 

U.S.C.C.A.N. 3182, 3527-33. 
17 

last paragraph of § 5038(a), the court is required to release the 

information sought if the request comes from one of the entities 

described in paragraphs (a)(1) through (a)(6). 

 Section 5038(a) lists in paragraphs (a)(1) through 

(a)(6) the entities that have a right to access the records of 

the judicial proceeding on request, and, as we have noted, it 

specifies in its concluding paragraph a limited number of 

situations where disclosure is forbidden. It does not, however, 

further define or limit the concepts of authorized and 

unauthorized persons. Most importantly, § 5038(a) implicitly 

recognizes that there are situations other than those described 

in paragraphs (a)(1) through (a)(6) and its concluding paragraph 

in which access could be authorized. If Congress intended 

paragraphs (a)(1) through (a)(6) to constitute an exclusive list 

of the situations in which access would be authorized, the 

concluding paragraph would be superfluous; if access was to be 

foreclosed in all but the situations described in 

paragraphs(a)(1) through (a)(6), the prohibition against 

disclosure in connection with applications for employment, 

licenses, bonding and civil rights would not have been necessary. 

 Section 5038(c), as we read it, has a different and 

more specific target than § 5038(a) -- information and documents 

"obtained or prepared" by an employee of the court or of another 

government agencies in the line of duty. The Act provides ample 

evidence of Congress' recognition that the district court would 

need information gathered by others in order to perform its 

responsibilities successfully. Section 5032, for example, lists 
18 

a number of factors that the court must consider in determining 

whether to transfer a juvenile for criminal prosecution as an 

adult: "the age and social background of the juvenile; the 

nature of the alleged offense; the extent and nature of the 

juvenile's prior delinquency record; the juvenile's present 

intellectual development and psychological maturity; the nature 

of past treatment efforts and the juvenile's response to such 

efforts; the availability of programs designed to treat the 

juvenile's behavioral problems." Section 5032 goes on to 

stipulate that "any proceedings against a juvenile . . . shall 

not be commenced until the prior juvenile records of such 

juvenile have been received by the court [or their unavailability 

explained]." Other provisions of the Act authorize the 

commitment of the juvenile "for observation and study by the 

appropriate agency," and require an examination of the juvenile's 

"personal traits, his capabilities, his background, any previous 

delinquency or criminal experience, and mental or physical 

defect, and any other relevant factors." § 5038(d). 

 We read § 5038(c) as directed to the protection of the 

fruits of the labors of the government employees who "obtain and 

prepare" this information. Some of this information will be 

contained in documents maintained in locations other than the 

Office of the Court Clerk, such as the files of the United States 

Attorney and the United States Probation Office. To this extent, 

§ 5038(c) is broader than § 5038(a). We do not suggest that 

§5038(c) applies to bar the media from publishing anything they 

legally obtain. See Smith v. Daily Mail Publishing Co., 443 U.S. 
19 

97 (1979); Oklahoma Publishing Co. v. District Court, 430 U.S. 

308 (1977). It does, however, bar anyone associated with a 

proceeding under the Act, including the United States Attorney 

and the employees of any other law enforcement agency, from 

disclosing such information to unauthorized persons. Because we 

read "others entitled under this section" to include persons 

authorized by the court to receive records under the authority 

implicitly recognized in § 5038(a), we believe § 5038(c) 

preserves the district court's discretion to weigh the juvenile's 

interest and the public's interest on a case-by-case basis. 

 Finally, we turn to § 5038(e). The government argues, 

with some persuasive force, that the prohibition against making 

public the picture of any juvenile is inconsistent with a 

congressional intent to have public hearings in cases brought 

under the Act. Those attending a public hearing necessarily 

would be exposed to the visual image of the juvenile involved 

unless elaborate and cumbersome precautions were taken. 

 A prohibition against making a juvenile's picture or 

name available to the public, however, strikes us as an indirect 

and unlikely way for Congress to stipulate that all hearings 

under the Act will be closed to the public. State statutes that 

restrict access to juvenile proceedings generally do so directly 

and clearly. Pennsylvania's delinquency law, for example, 

provides that "the general public shall be excluded," 42 P.S. 
20 

§6336(d),0 and Delaware's provides that "[a]ll proceedings before 

the court and all records of such proceedings may be private," 10 

Del. Code § 972(a).0 

 We think it far more likely that § 5038(e) was intended 

not to limit the discretion of trial judges to regulate access to 

juvenile delinquency proceedings, but to foreclose law 

enforcement officials from holding press conferences at which the 

name and picture of the juvenile would be "made public in 

connection with a juvenile delinquency proceeding."0 Section 

5038(e), then, like the rest of the Act, provides no evidence of 

a congressional mandate to close all juvenile delinquency 

hearings and seal all records. 

 

0

The official comment to the Pennsylvania statute adds that 

"[t]he statute as drawn permits the court in its discretion to 

admit news reporters." 

0

Delaware's statute allows the court to open proceedings "to the 

extent that the Court may consider publication in the public 

interest" and adds that "proceedings in a crime classified as a 

felony shall be open to the public." 10 Del. Code Ann. § 972(a). 

0

After A.D. and T.Y. were arrested, for example, authorities held 

a well-publicized press conference, see Michael A. Fuoco & Mike 

Bucsko, It's a federal case, gangs here warned: 7 charged in 

robberies facing U.S. law enforcement, Pittsburgh Post-Gazette, 

March 26, 1993, at A1, and a news release was issued by the U.S. 

Attorney, the FBI, the Allegheny County District Attorney, the 

Pittsburgh Police Chief, and the Pennsylvania Chief Deputy 

Attorney General. 
21 

V. 

 The government urges us to construe §§ 5032 and 5038 in 

light of the purpose and policy of the statutory scheme of which 

they are parts. The purpose of the Juvenile Delinquency Act, the 

government stresses, "is to rehabilitate, not to punish." In re 

Sealed Case, 893 F.2d 363 (D.C. Cir. 1990). To effectuate its 

rehabilitative purposes, the Act requires inquiry into the most 

sensitive aspects of a juvenile's life. Public access, the 

government maintains, would embarrass and humiliate juveniles, 

make it difficult to obtain evidence about delicate matters, and 

adversely affect the rehabilitation of juveniles by publicly 

labelling them as criminals. If §§ 5032 and 5038 were construed 

in accordance with this purpose and policy, the government 

asserts, public access to delinquency proceedings would be 

barred. 

 We, like the government, recognize the need to avoid 

embarrassing and humiliating juveniles, to obtain evidence about 

delicate matters, and not to affect the rehabilitation of 

juveniles adversely. We are not convinced, however, that 

Congress found across-the-board closure of juvenile proceedings 

necessary to achieve these goals. Rather, we think Congress left 

the delicate task of weighing the interests of the juvenile and 

the public to the informed discretion of the district judge in 

each case. District judges are experienced at striking this kind 

of delicate balance in the first instance in the context of 
22 

common law and other First Amendment access cases.0 We are 

confident that, here as there, they will be sensitive to the 

interests of juveniles and faithful to the objectives of the Act, 

as they determine the degree to which there will be public access 

to proceedings under the Act and the records generated in those 

proceedings. 

VI. 

 The Act does not mandate closed hearings and sealed 

records in all situations. Accordingly, we will reverse the 

order of the district court denying the newspapers' motions to 

 

0

The Supreme Court has stated that the common law provides a 

right of access to judicial records. See Nixon v. Warner 

Communications, Inc., 435 U.S. 589, 597-99 (1978). There is also 

a "common-law rule of open civil . . . proceedings." Gannett 

Co., Inc. v. DePasquale, 443 U.S. 368, 384 (1979). We discussed 

the "common law right of access" in United States v. Criden, 648 

F.2d 814, 823 (3d Cir. 1981) ("Criden I"), and in Publicker 

Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984), we 

noted that "[t]he existence of a common law right of access to 

judicial proceedings and to inspect judicial records is beyond 

dispute." See also Leucadia, Inc. v. Applied Extrusion 

Technologies, Inc., 998 F.2d 157, 161-165 (3d Cir. 1993); 

Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 

653 (3d Cir. 1991); Littlejohn v. BIC Corp., 851 F.2d 673 (3d 

Cir. 1988); Bank of America Nat'l Trust & Savings Ass'n v. Hotel 

Rittenhouse Assocs., 800 F.2d 339 (3d Cir. 1986). 

 

 The Supreme Court has noted in common law access cases 

how difficult it is "to identify all the factors to be weighted 

in determining whether access is appropriate" and has suggested 

that "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." Nixon, 435 U.S. at 599. We have remarked on the need "to 

balance the strong public interest favoring access against 

legitimate privacy concerns" and observed that "the trial court 

is generally given considerable leeway in the delicate balancing 

which must be performed." Criden I, 648 F.2d at 829. 
23 

open the proceedings and to unseal the record. We instruct the 

district court on remand to exercise its discretion concerning 

whether, and the extent to which, there should be public access 

to the records of these proceedings.0 Any denial or limitation 

of access must be supported by factual findings related to the 

circumstances of this particular case. 

 

 

0

As we have noted, the proceedings against A.D. and T.Y. 

apparently have concluded. Accordingly, the district court need 

not exercise its discretion with respect to attendance at court 

hearings in those proceedings. Separate consideration will have 

to be given in other cases to hearing access and to record file 

access. There well may be situations in which a proper weighing 

of the public's interest and the interests of the juvenile will 

call for a denial of access to a hearing and nevertheless require 

access at a later point to the transcript of that hearing.