Q: I am covering an ongoing issue with a law enforcement officer whose cases are being hit with multiple Pitchess and Brady motions due to reported manufacturing of evidence on search warrants (for one). It looks like the judges will be moving any live testimony into chambers and I am looking for a way to legally challenge in camera proceedings.
A: It is unclear whether the proceedings you are covering are civil or criminal, but in either case, there is a presumption that they should only be closed in the rarest of circumstances. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (holding there is a First Amendment right to attend criminal trials); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1217 (1999) (closure only proper in rarest of circumstances, and when certain conditions are met).
That said, my understanding of Pitchess and Brady motions is that, per Evidence Code 1043 and 1045, the hearings on such motions are held in chambers so the judge can review the records at issue to determine whether or not to grant the motion and release the records to the moving party. Per my brief review of case law, it seems this is unfortunately standard practice in state superior courts, and I did not find any case law stating that such procedures violated either the common law or First Amendment right of access to court proceedings.
If you suspect there may be other types of hearings or proceedings being held in chambers that should be held in open court, you may want to contact The Union’s attorney to see what options you may have for challenging the closure of these proceedings.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.