The Volokh Conspiracy
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From U.S. v. Jackson, decided Wednesday by Judge Allyne R. Ross (E.D.N.Y.):
The government moves to seal its December 5, 2020 letter and defendant's December 4, 2020 letter because they discuss Civilian Complaint Review Board ("CCRB") and Internal Affairs Bureau ("IAB") allegations against the government's witness, Detective Kevin Deleon. Gov't's Letter, The government argues that sealing is necessary in order to protect Det. Deleon's privacy interest because the allegations contain speculation and unsubstantiated complaints.
The public has a presumption of access to judicial documents under both the common law and the First Amendment. District courts must therefore "avoid sealing judicial documents in their entirety unless necessary." In certain circumstances, however, "[d]ocuments may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." …
This circuit has held that the First Amendment right attaches "to written documents filed in connection with pretrial motions" in criminal cases, but generally does not apply to discovery materials exchanged privately between the parties or between one party and the court…. Here, the presumption of access attaches to the parties' letters because they were "filed in connection with [a] pretrial motion." The government argues that this presumption is outweighed by Det. Deleon's privacy interest because the letters contain speculation and unsubstantiated complaints against him. The letters do contain summaries of and references to unsubstantiated IAB and CCRB allegations disclosed by the government pursuant to its Giglio obligation. As I have already made clear, these unsubstantiated allegations are irrelevant to the witness's character for truthfulness and therefore inadmissible. Defendant did not seek to admit these unsubstantiated complaints as impeachment evidence but did discuss the facts of these complaints in support of its argument for admitting evidence of a substantiated CCRB allegation from 2009. Def.'s Letter.
While I agree with the government that the unsubstantiated allegations are unreliable, speculative, and immaterial, the government has failed to provide "specific, on the record findings … demonstrating that" sealing the letters in their entirety "is narrowly tailored to serve" the witness's privacy interest. Therefore, I deny the government's motion to seal the letters but find that narrowly tailored redactions that remove references to the facts of the unsubstantiated allegations are warranted.
I think the court is quite right that, given the public's right of access to court filings, it's better to redact material rather than to seal the entire filing. I'm not sure, though, that even redaction (as opposed to allowing the whole document to be open) is proper.
The rationale for redacting the allegations is both that (1) publicizing them would be unfairly harmful to Det. Deleon's reputation, because they are "speculate[ve] and unsubstantiated," and (2) they won't be used in the case, because they are "immaterial" and "irrelevant to the witness's character for truthfulness and therefore inadmissible." On the other hand, I take it that the allegations are relevant to the underlying decision whether they are indeed immaterial and irrelevant, so that would be an argument for admitting them. Again, I'm not sure what the right answer is in such cases, but I thought I'd pass along the decision in case readers find it interesting.
Here, by the way, is the prior finding about irrelevance to which the court refers:
The government intends to call Detective Kevin Deleon to testify about Mr. Jackson's prior firearm possession. I have reviewed the letter filed on November 27, 2020, summarizing the allegations against Detective Deleon and do not find that any of them relate to his character for truthfulness. I have not received any objections from the defendant. I therefore grant the government's motion to preclude the defendant from cross-examining Detective Deleon about this material.