Rule 42-49. Closure of Courtroom in Criminal Cases

(a) Except as otherwise provided by law, there shall be a presumption that courtroom proceedings shall be open to the public.

(b) Except as provided in this section and except as otherwise provided by law, the judicial authority shall not order that the public be excluded from any portion of a courtroom proceeding.

(c) Upon written motion of the prosecuting authority or of the defendant, or upon its own motion, the judicial authority may order that the public be excluded from any portion of a courtroom proceeding only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in attending such proceeding. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. An agreement of the parties to close the courtroom shall not constitute a sufficient basis for the issuance of such an order.

(d) In connection with any order issued pursuant to subsection (c) of this section, the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order. If any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record. The time, date and scope of any such order shall be set forth in a writing signed by the judicial authority which upon issuance the court clerk shall immediately enter in the court file and publish by posting on a bulletin board adjacent to the clerk's office and accessible to the public. The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.

(e) A motion to close a courtroom proceeding shall be calendared so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration. The notice of the time, date and place of the hearing on the motion shall be posted on a bulletin board adjacent to the clerk's office and accessible to the public. The motion itself may be filed under seal, where appropriate, by leave of the judicial authority.

(f) With the exception of orders concerning any session of court conducted pursuant to General Statutes § 54-76h or any other provision of the General Statutes under which the court is authorized to close courtroom proceedings, whether at a pretrial or trial stage, no order excluding the public from any portion of a courtroom proceeding shall be effective until seventy-two hours after it has been issued. Any person affected by such order shall have the right to the review of such order by the filing of a petition for review with the Appellate Court within seventy-two hours from the issuance of such order. The timely filing of any petition for review shall stay such order. text were amended, Section 42-49 read: '' —Exclusion of the Public; Sealing or Limiting Disclosure of Documents

Committee Notes

(Amended May 14, 2003, to take effect July 1, 2003.) (P.B. 1978-1997, Sec. 895.) (Amended June 28, 1999, to take effect Jan. 1, 2000; amended May 14, 2003, to take effect July 1, 2003; amended June 21, 2004, to take effect Jan. 1, 2005.) HISTORY—2003: Prior to 2003, when both the title and Richmond Newspapers, Inc. v. Virginia , supra, 564, the court explained that ''throughout its evolution, the trial has been open to all who care to observe.'' The guarantee of open public proceedings in criminal trials applies as well to voir dire and pretrial proceedings. Press- Enterprise Co.

v . Superior Court , 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 248 (1984) ( Press-Enterprise I ); United States v . Cojab , 996 F.2d 1404, 1407 (2d Cir. 1993); United States v . Haller , 837 F.2d 84, 86 (2d Cir. 1988); United States v . Gerena, 703 F. Supp. 211, 213 (D. Conn. 1988). The pre- sumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was entered properly. Press-Enterprise I , supra, 510; United States v. Haller , supra, 87; Doe v . Meachum , 126 F.R.D. 452, 455 (D. Conn. 1989); State v. Kelly, 208 Conn. 365, 372, 545 A.2d 1048 (1988). Such findings may be made under seal when necessary. United States v . Haller , supra, 87; see In re Application of the Herald Co. , 734 F.2d 93, 100 (2d Cir. 1984) (closure of suppression hearing should be allowed only upon showing of significant risk of prejudice to defendant's right to fair trial, if there is danger to persons or property, or in connection with significant activities entitled to confidentiality, such as undercover investigations); see also United States v . Brooklier , 685 F.2d 1162, 1168–69 (9th Cir. 1982) (since purpose of articulated findings is to enable appel- late court to determine whether order was properly entered, findings must be sufficiently specific to show that public pro- ceedings would result in irreparable damage to defendant's right to fair trial, that no alternative to closure would adequately protect defendant's right to fair trial, and that closure would protect that right). Since the circumstances of a particular case may affect the significance of the interest sought to be protected, the requirement that specific findings justifying closure be articu- lated mandates a case-by-case analysis of the interest involved. Globe Newspaper Co. v. Superior Court , supra, 457 U.S. 607–608 (where welfare of minor child is at issue, factors to be weighed in determining whether closure is warranted include minor victim's age, psychological maturity and under- standing, nature of crime, desires of victim, and interests of parents and relatives).

A case-by-case analysis of the interests involved ensures that the constitutional right of access to trials will not be restricted except where absolutely necessary. Id., 609. ''For a case-by-case approach to be meaningful, repre- sentatives of the press and general public 'must be given an opportunity to be heard on the question of their exclusion.' '' Id., 609 n.25, quoting Gannett Co. v. DePasquale , 443 U.S. 368, 401, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979) (Powell, J., concurring). Except in extraordinary circumstances, the press and public must have a means of learning of the closure or sealing order. See United States v. Haller , supra, 837 F.2d 87. ''[A] motion for courtroom closure should be docketed in the public docket files maintained in the court clerk's office. . . . The motion itself may be filed under seal, when appropriate, by leave of court . . . .'' (Citation omitted.) In re Application of the Herald Co. , supra, 734 F.2d 102; see also In re Knight Publishing Co., 743 F.2d 231, 235 (4th Cir. 1984); In re Knox- ville News-Sentinel Co ., 723 F.2d 470, 474–76 (6th Cir. 1983). Because this section no longer deals with the sealing of documents, subsection (e) has been transferred to Section HISTORY—2005: Prior to 2005, the third sentence of sub- section (d) read: ''The time, date and scope of any such order shall be in writing and shall be signed by the judicial authority and be entered by the court clerk in the court file.''