§ 46-11-701 — Pretrial Proceedings -- Exclusion Of Public And Sealing Of Records

Montana § 46-11-701

• Jurisdiction: Montana
• Title 46: CRIMINAL PROCEDURE
• Ch. 11: COMMENCEMENT OF PROSECUTION
• Part 7: Pretrial Proceedings -- Confidentiality

Text

46-11-701 . Pretrial proceedings -- exclusion of public and sealing of records. (1) Except as provided in this section, pretrial proceedings and records of those proceedings are open to the public. If, at the pretrial proceedings, testimony or evidence is presented that is likely to threaten the fairness of a trial, the presiding officer shall advise those present of the danger and shall seek the voluntary cooperation of the news media in delaying dissemination of potentially prejudicial information until the impaneling of the jury or until an earlier time consistent with the administration of justice.
(2) The defendant may move that all or part of the proceeding be closed to the public, or with the consent of the defendant, the judge may take action on the judge's own motion.
(3) The judge may close a preliminary hearing, bail hearing, or any other pretrial proceeding, including a hearing on a motion to suppress, and may seal the record only if:
(a) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial; and
(b) the prejudicial effect of the information on trial fairness cannot be avoided by any reasonable alternative means.
(4) Whenever all or part of any pretrial proceeding is held in chambers or otherwise closed to the public under this section, a complete record must be kept and made available to the public following the completion of the trial or earlier if consistent with trial fairness.
(5) Notwithstanding closure of a proceeding to the public, the judge shall permit a victim of the offense to be present unless the judge determines that exclusion of the victim is necessary to protect either party's right to a fair trial or the safety of the victim. If the victim is present, the judge, at the victim's request, shall permit the presence of an individual to provide support to the victim unless the judge determines that exclusion of the individual is necessary to protect the defendant's right to a fair trial.
(6) (a) When the judge determines that all or part of a document filed in support of a charge or warrant would present a clear and present danger to the defendant's right to a fair trial, the document or portion of the document must be sealed until the trial is completed unless the document or portion of the document must be used for trial fairness.
(b) When a sworn affidavit in support of a search warrant is presented by a peace officer to a judge and the peace officer's request includes a request to seal the documents related to the search warrant, the judge may consider the evidence presented and, if the judge makes a finding from the evidence that the demand of individual privacy clearly exceeds the merits of public disclosure, the judge may order the documents related to the search warrant sealed until:
(i) a date certain;
(ii) the occurrence of a specific event;
(iii) the filing of a charge arising from or related to the execution of the search warrant; or
(iv) such other time as the judge deems appropriate.

Legislative History

En. Sec. 124, Ch. 800, L. 1991; amd. Sec. 63, Ch. 10, L. 1993; amd. Sec. 20, Ch. 262, L. 1993; amd. Sec. 5, Ch. 125, L. 1995; amd. Sec. 1, Ch. 164, L. 2015.