• The court’s daily volume of proceedings. If few proceedings are held each day, the observations will have to be conducted over many days or weeks.

• The variety of proceedings conducted each day. If certain matters are heard only on certain days (e.g., all or most civil and criminal motions are heard only on Mondays), then several days will be needed to observe a cross-section of proceedings.

• The number of volunteer observers available to conduct the measure. If a large number of observers are available, data could be collected across many days without asking observers to visit the courthouse repeatedly. Alternatively, if observers must collect data on a number of proceedings, it will be more convenient to do so on 1 or 2 days than to have them traveling to the courthouse across many days.

• The observers’ schedules. The court may have to collect data across several days (or in just a few days) in order to accommodate the various schedules of the observers.

The measure provides an example in which five volunteers observe two proceedings each across 3 days. As noted above, the data collection process can be modified to accommodate a court’s particular caseload and volunteers’ schedules. Select more or fewer days as necessary.

To select the 3 days, first ask court employees involved in scheduling court proceedings whether certain matters are heard only on certain days. If, for example, most short matters are heard only on Mondays, be sure to include at least one Monday in the sample.² The selected days should include a cross-section of the types of proceedings the court hears. If the court hears the same types of matters each day, randomly select 3 days.

Next, review the list of proceedings scheduled for each day for nonpublic proceedings. Eliminate any matters specifically noted as closed to the public. (Eliminated proceedings may be examined in connection with Standard 3.1, Measure 3.1.1, to determine whether the court’s practices for closing hearings are in compliance with Federal and State case law and applicable statutes.)

Randomly select 10 proceedings scheduled for each day.³ Because some proceedings (such as trials) may be canceled before their scheduled start times, it is advisable also to select several additional proceedings as backup.

On the morning of the planned observation, give each of the five volunteers two proceedings to attend. Make sure that the two proceedings are not scheduled to take place at the same time in different courtrooms.

Data Collection. An observer goes to each scheduled hearing at the designated location and time. For each event, the observer records (see Form 1.1.1, Record of Access to Courtroom) whether he or she was successful in gaining access to the proceeding. If the observer is excluded from any of the scheduled proceedings, he or she should talk with court officials and record the reasons for exclusion

If some of the proceedings with individually scheduled start times (such as trials) are canceled before the scheduled start time, additional proceedings should be chosen to replace them. Canceled proceedings that are part of a court session including many short matters do not need to be replaced. As long as the observer gains access to the courtroom where the matter was scheduled to be heard, the observer can record that the proceeding was accessible.

Data Analysis and Report Preparation. Analyzing the data involves a two-step process. If all of the court proceedings were open to the public, the court is performing well on this measure and there is no need to undertake the second step of analysis. If, on the other hand, some of the court proceedings were closed, court officials should examine the legitimacy of the explanations that were given for closing the proceedings. Were the proceedings closed according to the standards enumerated by the Supreme Court in Press-Enterprise Co. v. The Superior Court?⁴ These standards include:

• There is an overriding interest that would be prejudiced by open proceedings.

• The closure order is no broader than necessary to protect that interest.

• Reasonable alternatives to closure have been considered.

• The trial court needs findings on the record adequate to support closure.

The standards enumerated for closing a pretrial hearing in criminal cases are:⁵

• There is substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity.

• No reasonable alternatives to closure could protect the defendant’s fair trial rights.

If any of the proceedings were closed for reasons other than these, the court is not performing optimally on this measure. If proceedings were closed for illegitimate reasons, court officials should take steps to ensure that, in the future, the Supreme Court’s standards for closing proceedings are followed.