Discovery in a criminal case is not a public record. The police reports, witness statements, lab results, and other evidence that prosecutors and defense attorneys exchange before trial stay outside the public court file unless one of the parties attaches them to a motion or a court admits them as a trial exhibit. The court record itself — indictments, motions, orders, plea agreements, and judgments — is generally open to anyone. Most discovery never enters that record, and that’s the source of the confusion.
What’s Actually Public in a Criminal Case
The court file is the collection of documents filed with the clerk. In federal cases it usually includes the indictment or complaint, pretrial motions, the court’s orders and rulings, plea agreements, sentencing documents, and judgments. The National Archives describes federal criminal case files as containing items like indictments, judgments, commitment orders, and docket sheets listing everything filed in the case.1National Archives & Records Administration. Criminal Case Files Most of these are available electronically through PACER, and members of the public and the media can view them.2U.S. Courts. Accessing Court Documents – Journalists Guide
Transcripts of hearings and trial proceedings become part of the record once they’re prepared. A transcript doesn’t exist automatically, though. Someone has to order and pay for it. Until that happens, the court reporter’s notes are part of the proceedings but not something a member of the public can browse.
Why Discovery Materials Stay Private
Discovery is the exchange between prosecutors and defense attorneys before trial. Federal Rule of Criminal Procedure 16 sets out what the government must turn over on the defendant’s request: the defendant’s own statements, prior criminal record, documents and physical evidence material to the defense, and reports of examinations or expert testimony the government plans to use.3Justia. Fed R Crim P 16 – Discovery and Inspection On top of that, the Constitution requires prosecutors to hand over evidence favorable to the defense. That duty comes from Brady v. Maryland, which held that suppressing material exculpatory evidence violates due process regardless of the prosecution’s good faith.4Justia. Brady v Maryland, 373 US 83 (1963)
None of these exchanges automatically enter the court record. They pass between the attorneys for case preparation. The U.S. Courts’ guide for journalists states it plainly: “the media do not have a right of access to discovery materials not filed with the court.”2U.S. Courts. Accessing Court Documents – Journalists Guide Police reports, witness interview summaries, surveillance footage, lab results — that’s the class of material that stays private unless a party files it as an attachment to a motion or a court admits it as a trial exhibit.
The defense side faces its own restrictions on what to do with discovery once received. Many federal districts have local rules that bar the defense team from sharing discovery outside the people directly working on the case: attorneys, paralegals, investigators, and retained experts. Defendants are often barred from keeping copies of sensitive materials like witness home addresses, Social Security numbers, or grand jury testimony, and can review those materials only in counsel’s presence. An attorney who shares protected discovery without authorization risks court sanctions. Receiving discovery does not mean owning it or being free to distribute it.
When Discovery Crosses Into the Public File
Discovery materials lose their private status when they enter the court file. Two routes account for most of that:
- Filed as part of a motion. When a defense attorney attaches a police report to a motion to suppress, or a prosecutor includes forensic test results in a sentencing memorandum, those documents become part of the public record alongside the motion. Anyone with court access can read them.
- Introduced as a trial exhibit. Evidence admitted during trial — photographs, documents, recordings — generally becomes part of the court record. At that point, the public and media can usually inspect and copy the exhibits, subject to any protective orders the court has issued.
The transition isn’t always automatic or immediate. Some courts manage exhibits differently from filed documents, and judges sometimes restrict access to particular exhibits even after admission. The general principle holds, though: once a document moves from the attorneys’ files into the court’s file, the presumption of public access applies.
Grand Jury Materials
Grand jury proceedings are their own category, and the category is closed. Federal Rule of Criminal Procedure 6(e) imposes a strict obligation of silence on grand jurors, court reporters, interpreters, government attorneys, and anyone who transcribes recorded testimony.5Legal Information Institute. Federal Rules of Criminal Procedure Rule 6 – The Grand Jury The foreperson records how many jurors voted to indict and files that with the clerk, but it cannot be made public unless the court orders otherwise.
Exceptions to grand jury secrecy exist and are narrow. Disclosure may be made to other government attorneys enforcing federal law, to another federal grand jury, or by specific court order in connection with a judicial proceeding. A defendant can seek grand jury materials by showing grounds to dismiss the indictment based on something that happened in front of the grand jury, but the court controls whether to grant that access.5Legal Information Institute. Federal Rules of Criminal Procedure Rule 6 – The Grand Jury For the general public, grand jury transcripts and evidence are essentially off-limits unless a judge decides otherwise.
Sealing, Protective Orders, and Redactions
Even material that makes it into the court file can be kept out of public view. Courts have several tools for that.
Protective orders restrict how parties use or share discovery materials. A court might order that crime scene photographs can be viewed only by attorneys and their staff, or that a witness’s medical records not be disclosed beyond the defense team. The Supreme Court upheld this kind of restriction in Seattle Times Co. v. Rhinehart, ruling that judicial limits on a party’s ability to disseminate pretrial discovery implicate First Amendment rights “to a far lesser extent” than restraints in other contexts, and that preventing abuse of the liberal discovery process is a sufficient justification.6Justia. Seattle Times Co v Rhinehart, 467 US 20 (1984)
Sealing goes further and removes documents from public view entirely. Courts seal portions of the record in cases involving minors, victims of sexual offenses, cooperating witnesses whose safety is at risk, or national security concerns. Under the framework from Press-Enterprise Co. v. Superior Court, a criminal proceeding cannot be closed to the public unless the court makes specific, on-the-record findings that closure “is essential to preserve higher values and is narrowly tailored to serve that interest.”7Justia. Press-Enterprise Co v Superior Court, 478 US 1 (1986) If the concern is prejudicial publicity, the court must find a “substantial probability” that the defendant’s fair trial rights would be harmed and that alternatives short of closure cannot solve the problem.
Personal identifiers get stripped even from filings that are otherwise public. Federal courts require that filings include only the last four digits of Social Security numbers and financial account numbers, the year (not full date) of a person’s birth, and the initials of any known minor. Witness privacy carries additional protection in many jurisdictions: law enforcement records containing a witness’s home address, phone number, email, and government-issued identification numbers may be shielded from public disclosure, particularly where release could invite harassment or threats. That protection often extends to discovery materials referenced in court filings — the court may require identifying details be redacted from any publicly available version.
FOIA Won’t Get You Court Records
A common misconception is that a Freedom of Information Act request can produce criminal case materials from a federal court. It can’t. FOIA applies only to the executive branch — federal agencies, departments, and certain offices within the Executive Office of the President. It does not apply to the judicial branch or to Congress.8FOIA.gov. Freedom of Information Act Frequently Asked Questions Filing a FOIA request with a federal court will produce a polite rejection, not documents.
To get records from a federal criminal case, go through the court clerk’s office or PACER, the federal courts’ electronic access system. Basic access costs $0.10 per page, and fees are waived if you spend $30 or less in a calendar quarter.9PACER: Federal Court Records. PACER Pricing: How Fees Work For someone looking up a single case, that quarterly waiver usually covers it. State courts have their own access rules and their own fee schedules, and some states do allow public records requests for certain law enforcement files — but investigative records connected to pending prosecutions are routinely exempt from disclosure under state open-records statutes. The path to criminal case records runs through the court system, not through FOIA or its state analogs.
Challenging a Seal
Sealing orders are not permanent by default, and the public can challenge them. In Nixon v. Warner Communications, Inc., the Supreme Court recognized a common-law right to inspect and copy judicial records, while noting that the right is “not absolute” and the decision “is best left to the sound discretion of the trial court.”10Justia. Nixon v Warner Communications Inc, 435 US 589 (1978) That discretion has to be exercised on the facts of the case, not on vague generalizations about possible harm.
Journalists, news organizations, and members of the public can file a motion to unseal in the court that issued the sealing order. You do not need to be a party to the case. Courts evaluate unsealing requests by looking at the nature of the sealed information, how long it has been sealed, whether the original justification still holds, and whether the material was properly sealed in the first place. In some courts, even an informal letter to the judge has prompted unsealing, though formal motions carry more weight and are more reliably processed. The burden generally sits with the party arguing to keep the records sealed. Openness is the presumption; anyone arguing otherwise has to justify the exception.
Does the Answer Change by Jurisdiction?
Federal Rule 16 sets a fairly narrow baseline for what prosecutors must disclose. It doesn’t include witness lists, for instance — federal defendants generally have no right to learn the names of prosecution witnesses before trial.3Justia. Fed R Crim P 16 – Discovery and Inspection Many states go much broader, with “open-file” rules that push the prosecution to turn over essentially everything in its file to the defense.
Broader discovery rules produce more material in the attorneys’ hands. They do not produce more material in the court file. Open-file discovery still operates as a private exchange between the parties. Whether any of it becomes public depends on the same factors that apply everywhere: whether it’s filed with the court, attached to a motion, or admitted as a trial exhibit. The volume of discovery a jurisdiction requires has little bearing on how much of it the public can eventually see.