Plea Agreements: Part of the Court's Proceedings

What happens when a judge takes the criminal defendant, the prosecution and the defense into his chambers for the purpose of discussing a plea agreement? Is there a right of access to that discussion?

The answer is yes, maybe. We can start with the rule that a plea agreement is a court proceeding like all other court proceedings and the presumption of access should apply.
For example, in the Maryland Criminal Causes Rules, Rule 4-243 describes the plea agreement procedure. When (if) agreement is reached, the agreement must be presented to a judge. If the judge approves the agreement it becomes part of the disposition of the case. That is a matter of public record. According to the rule, "all proceedings pursuant to this Rule, including the defendant’s pleading, advice by the court, and inquiry into the voluntariness of the plea or a plea agreement shall be on the record."

Under Federal Rules of Criminal Procedure, Rule 11, the plea agreement is to be disclosed at the time the plea is offered. The federal district court for the District of Columbia has observed that a guilty plea offered and accepted by the court "substitutes for the entire trial" and must be open just as a trial is open. At least three federal circuit courts have also ruled that notice and an opportunity to be heard are prerequisites to sealing a plea agreement. A rejected agreement should also become part of the court record, thus subject to a right of access.

Nonetheless, as you might expect, this law does not necessarily offer a free ride home.

The docket should reveal that the plea agreement is scheduled before the trial judge in individual cases. However, the federal appeals court in the District of Columbia has acknowledged that "the government could show substantial danger in even the docketing of such a motion or order," and might be able to show a compelling interest in sealing the entire plea agreement record.

In Maryland, if the prosecution and the defense agree, the court may order the record to be sealed, when there is a showing of substantial harm to anyone, including unnecessary annoyance or embarrassment. In the federal courts, the standard for closure is "good cause."

Even so, reporters ought to be able to find out why a plea agreement has been sealed. Several federal circuits have held that "specific findings must be articulated on the record at the time a plea agreement is sealed." On the record means public.

It is clear that plea agreements presented to a judge are to be treated as if they were an open trial. However, if the state and the defense agree that they want the matter sealed, access will depend on the reporter’s ability to find notice in the criminal docket, from the court clerk, or from the judge’s chambers.