MD Rules Committee proposes rules regarding access to recordings of criminal proceedings
April 14, 2023
Access to audio recordings of court proceedings was Item 1 on the Maryland Rules Committee agenda Friday, April 14th. The proposed rules discussed were the culmination of months of back and forth regarding the public’s access to recordings of criminal proceedings. A change in the rules was prompted by the December 2022 ruling in Soderberg v. Carrión, whichconcluded that Section 1-201 of the Criminal Procedure Article of the Maryland Code (the “Broadcast Ban”) is unconstitutional under the First Amendment “to the extent that it prohibits the press and public from broadcasting ‘lawfully obtained audio or video recordings of criminal proceedings that occurred in open court.’” — F. Supp. 3d —, 2022 U.S. Dist. LEXIS 222645, at *4 (D. Md. Dec. 9, 2022).
In early January, the Rules Committee proposed a revised rule 16.504(g) before the State Supreme Court that would have eliminated the ability of the public to receive copies of audio recordings of criminal proceedings. Press advocates were deeply concerned about journalists’ ability to cover the courts without access to recordings, pointing out that worries about witness intimidation and disclosure of sensitive information had not been carried out. The Supreme Court remanded the rule back to the Rules Committee for further discussion.
MDDC and a coalition of media organizations led by Ballard Spahr submitted comments to the Rules Committee regarding the remanded rule and the final proposal by the Special Subcommittee on Broadcasting of Criminal Proceedings was discussed April 14th.
MDDC submitted comments on the proposed rule (agenda item 1), and the media coalition led by Ballard Spahr also submitted comments. After discussion, the Rules Committee voted to allow judges to shield or redact certain portions of the record “on its own initiative,” while raising the standard for what may be redacted or shielding to clear and convincing evidence rather than simply good cause. The approved language reads:
16.504(g) Safeguarding Confidential Portions of Proceeding
If a portion of a proceeding involves placing on the record matters that, on motion or on its own initiative, the court finds by clear and convincing evidence (1) that a compelling reason exists under the particular circumstances to shield the information form public access and inspection and (2) that no substantial harm will result from the shielding, the court shall direct that appropriate safeguards be placed on that portion of the recording.
MDDC was comfortable with this compromise.
There was further discussion regarding reconsideration of the redaction or shielding. Under the proposed rule 16.504(b)(4) “on motion of a party or interested person” the court may modify or rescind an order for shielding or redaction if it finds that there is a material change in circumstance or that there is no longer good cause to shield the information. In this instance, the Rules Committee indicated that members of the press could be considered an “interested person,” clarifying that an advisory opinion would need to be issued.
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