You can and should watch courts! Why?
The right of public access to court proceedings is enshrined in the Constitution. The First Amendment to the U.S. Constitution gives the public and press a right of access to court proceedings, while the Sixth Amendment gives individuals facing criminal charges the right to a public trial. Requiring the work of the courts to be conducted in public view provides an important check on the potential for abuse of power, allowing observers to better understand how the justice system operates and enhancing public confidence in the courts.
With certain very limited exceptions, each step of the judicial process is open to the public. Additionally, observers generally have a right to access to court documents, including pleadings, motions, verdict sheets, etc.
Exceptions to open courts are very limited. Reasons for closing a courtroom must be recorded and can be challenged. Limitations that have been accepted generally fall into several broad categories:
- Grand Jury Proceedings – Grand jury proceedings are secret, and transcripts of grand jury proceedings are only released if a court determines that release to be in the public interest. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979)
- Juvenile Proceedings – In a number of jurisdictions, juvenile delinquency proceedings are closed to the public. To determine whether your jurisdiction allows observations of juvenile proceedings, please review this Report on Access to Juvenile Justice from the Reporters Committee for Freedom of the Press.
- National Security – In cases involving issues of national security, a court may order a proceeding closed to the public. For more on this, please see the Reporters Committee for Freedom of the Press – Behind Closed Doors
- Other Security or Privacy Concerns – A court may order a proceeding closed to the public if the proceeding raises specific and special security or privacy concerns, e.g. proceedings involving a confidential informant or a child victim/witness during that victim/witness testimony. Any such closure must be narrowly tailored to meet only the needs that justify the closure and alternative access should be considered.
ABA SCLAID and CRSJ have coordinated on a number of court watching efforts. These efforts have focused on misdemeanor and other low-level criminal and civil infraction courts.
Punishing The Poor: An Assessment of the Administration of Fines and Fees in New Mexico Misdemeanor Courts (February 2023)
- ABA report criticizes fines and fees system in New Mexico’s courts (ABA Journal, February 23, 2023)
- New Mexico among states easing burden of court fines and fees (National Center for State Courts, April 19, 2023)
- New Mexico Gov. Lujan Grisham signs groundbreaking fee elimination bill into law (Fines and Fees Justice Center, April 6, 2023)
- In win for criminal legal system reform, New Mexico eliminates criminal court fees for adults (Vera Institute, June 1, 2023)
Nashville, TN: Denial of the Right to Counsel in Misdemeanor Courts (August 2017)
- Misdemeanor Defendants Facing Jail Time Not Told They Have a Right to Counsel, Bar Association Finds (ProPublica, August 14, 2017)
- Mass Justice in Southern Court Replete with Rights Violations, ABA Observers Say (Courthouse News, August 21, 2017)
- Court Watching in Nashville, TN (NAPD Blog, October 3, 2017)
In conducting court watching, ABA SCLAID and CRSJ measure existing practices against Constitutional standards and ABA policy. Relevant ABA Policy and Ethics Opinions include:
- ABA 10 Guidelines of Court Fines and Fees (2018)
- ABA 10 Principles of a Public Defense Delivery System (2002)
- ABA Ethics Opinion 486: Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses (May 9, 2019)
- ABA Ethics opinion 490: Ethical Obligations of Judges in Collecting Legal Obligations and Other Debts (March 24 2020)
Some other helpful background materials on misdemeanor courts:
- The Steep Costs of Criminal Justice Fines and Fees (Brennan Center, Nov 2019)
- Jessica Roth, The Culture of Misdemeanor Courts (Hofstra Law Review, Feb 2018)
- Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts (NACDL, 2009)
Materials, Forms and Manuals for Court Watching
General Court Watching Materials:
Criminal Court Observation Forms and Manuals:
Court Watch MA: Arraignment Observation Form (Essex)
Other Forms and Manuals:
- Human Rights Defender Project Form
- Human Rights Defender Project – Immigration Court Observation Volunteer Manual
Webinars on Courtwatching
- Webinar: Court-Watching Programs: Purpose and Progress (July 24, 2023)
Court Watching Organizations
Articles on Court-Watching
- The Court-Watch movement wants to expose the “house of cards” (July 16, 2018)