How-To: Write a Motion for Confidentiality

"Respondent finally argues... that the following requirements be imposed on [the sealing] of a pretrial hearing.

1. [Sealing] is necessary to prevent a serious and imminent threat to the administration of justice;

2. No alternatives are available, other than change of venue, which would protect a defendant's right to a fair trial; and

3. [Sealing] would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

We adopt the three-pronged test proposed by respondent."

1. Does it prevent imminent threat to the administration of justice?
2. Are there any alternatives?
3. Is this remedy as narrow as possible?

"While a strong presumption of openness in judicial proceedings exists, the law has established numerous exceptions to protect competing interests. These exceptions fall into two categories: the first includes those necessary to ensure order and dignity in the courtroom and the second deals with the content of the information."

1. Maintaining Order & Dignity of the Court; and
2. Protecting Private Information

"The primary purpose of closure is to protect the defendant's right to a fair trial, one free of widespread hostile publicity, so as to insure him an unbiased jury. The factors to be considered include the extent of prior hostile publicity, the probability that the issues involved at the pretrial hearing will further aggravate the adverse publicity, and whether traditional judicial techniques to insulate the jury from the consequences of such publicity will ameliorate the problem. Absent a showing of widespread adverse publicity, the trial court should not grant a motion to close the hearing. The trial judge must determine if there is a serious and imminent threat that publication will preclude the fair administration of justice. In determining this question, an evidentiary hearing should be held and findings of fact should be recorded by the judge in his order granting or refusing closure."

1. Extent of Prior Hostility;
2. Probability of Aggravating Hostility with continued openness; and
3. Whether traditional judicial techniques (eg, jury sequestration) will remedy the problem

"Courts must first determine whether the individual possesses a legitimate expectation of privacy in the information or subject at issue. If so, then the burden shifts to the State to show that (a) there is a compelling state interest warranting the intrusion into the individual's privacy and (b) the intrusion is accomplished by the least intrusive means."

1. Legitimate expectation of privacy;
2. Opponent's compelling interest in the information; and
3. Least-intrusive means for obtaining

"The following alternatives [to making public documents confidential] should be considered: continuance, severance, change of venire, voir dire, peremptory challenges, sequestration, and admonition of the jury. One or more of these alternatives may adequately protect the accused's interest and relieve the court of any need to close the proceeding in advance."

1. Continuance;
2. Severance;
3. Change of Venire;
4. Voir Dire;
5. Peremptory Challenges;
6. Sequestration;
7. Admonition to the Jury;
8. Whether traditional judicial techniques (eg, jury sequestration) will remedy the problem