NCJ Number
129703
Journal
Columbia Law Review Volume: 90 Issue: 8 Dated: (December 1990), 2216-2254
Date Published
1990
Length
39 pages
Annotation
This analysis of issues related to search warrants argues that courts should recognize a first amendment right of access to affidavits issued in support of search warrants after the execution of the warrant and that this right should be overcome only by a narrowly specified restriction justified by a compelling interest.
Abstract
A recent Boston murder case showed how police misconduct might never have been revealed if the press had not had access to the affidavits issued in support of the search warrants. However, circuit courts have differed in their application of the United States Supreme Court's test for first amendment rights of public access to judicial proceedings. This test considers whether the proceeding has historically been open to the public and whether this public access plays a significant positive role in the functioning of the process. This test is also appropriate for search warrant affidavits because these documents have historically been open to the public; the requirement of an affidavit rests on the concept of public accountability. However, alternatives to a first amendment access right such as a common-law right do not adequately prevent prosecutorial misconduct. Instead, a qualified first amendment right of access addresses the competing interests of privacy, fair trial rights, and effective investigation. 214 footnotes