The Daily Press v. Commonwealth ( 2022 )


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  • PRESENT: Goodwyn, C.J., Powell, Kelsey, McCullough, and Chafin, JJ., and Millette and
    Lemons, S.JJ.
    THE DAILY PRESS, LLC,
    THE VIRGINIAN-PILOT MEDIA COMPANIES, LLC,
    and PETER DUJARDIN
    v. Record No. 210787
    COMMONWEALTH OF VIRGINIA,
    and ALBIN TREVOR PEARSON                                          OPINION BY
    JUSTICE D. ARTHUR KELSEY
    CITY OF NEWPORT NEWS                                            OCTOBER 20, 2022
    v. Record No. 210827
    COMMONWEALTH OF VIRGINIA,
    THE DAILY PRESS, LLC,
    THE VIRGINIAN-PILOT MEDIA COMPANIES, LLC,
    PETER DUJARDIN,
    and ALBIN PEARSON
    FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
    Margaret P. Spencer, Judge Designate
    These consolidated appeals challenge three rulings by the trial court in a pending criminal
    case. The first barred public access to a pretrial bail hearing, and the second kept certain motions
    and exhibits under seal. Two newspaper publishers and a reporter filed an appeal challenging
    these rulings. The third ruling, challenged on appeal by the City of Newport News, found that
    the City lacked standing to oppose any public access to sealed documents that the City had
    previously produced in response to a subpoena. For the following reasons, we reverse all three
    holdings and remand for further proceedings consistent with this opinion.
    I.
    The underlying case involves a second-degree murder indictment and ancillary charges
    against Albin Trevor Pearson, a Newport News police officer. The alleged crimes occurred in
    2019 during an attempt to arrest the victim. Pearson was released on pretrial bail shortly after his
    arrest. Claiming that Pearson posed a danger to the community, the Commonwealth requested a
    subpoena duces tecum to obtain various documents, including any prior investigations of
    Pearson’s conduct as a police officer and any City of Newport News emails regarding the alleged
    offense. Over the City’s objection, the trial court issued the requested subpoena and ordered that
    the subpoenaed documents be filed with the clerk of court pursuant to Rule 3A:12(b)(2), which
    required the initial filing to be sealed until further order of the court. 1
    After reviewing the subpoenaed documents, the Commonwealth filed a “Motion to
    Revoke Bond” (more precisely a motion to revoke bail),2 arguing that the sealed documents
    established probable cause to believe that Pearson’s pretrial liberty would pose a danger to the
    community. In support of its motion to revoke, the Commonwealth relied heavily on two prior
    incidents involving Pearson that were documented in the sealed records. The Commonwealth
    filed both the motion to revoke and the attached exhibits under seal. The Commonwealth also
    filed a motion to preclude Pearson from arguing certain defenses and attached to the motion
    various sealed documents as exhibits.
    At the beginning of the bail-revocation hearing, the Commonwealth moved to close the
    hearing and thereby preclude the public — including a reporter, Peter Dujardin — from being in
    the courtroom. The court continued the matter to a later date to provide the reporter and the
    public an opportunity to be heard. Prior to the reconvened hearing, Dujardin, along with his
    employers, The Daily Press, LLC and The Virginian-Pilot Media Companies, LLC, filed a joint
    1
    To the extent that we mention facts found only in the sealed record, we unseal those
    specific facts, finding them relevant to our decision.
    2
    The Commonwealth’s motion is titled “Motion to Revoke Bond.” Though a common
    phrase, this expression is imprecise. The Commonwealth actually sought an order revoking
    Pearson’s bail, resulting in his pretrial incarceration, not an order revoking a bond previously
    securing the original bail decision. See Code § 19.2-119 (defining “bail” and “bond”); Code
    § 19.2-132 (permitting the court to either “increase the amount of such bond” or “revoke bail”).
    2
    motion to intervene. 3 They objected to the motion to close the upcoming bail-revocation hearing
    and requested that the court unseal the Commonwealth’s motion to revoke Pearson’s bail,
    including its exhibits, and the exhibits supporting the Commonwealth’s motion to preclude
    certain defenses. In response, the Commonwealth repeated its request for a closed hearing and
    restated its view that the sealed documents provided “credible information, unavailable to the
    Court or the Commonwealth at the time bond was granted, that there is probable cause to believe
    that [Pearson] is a danger to the community.” J.A. at 163.4
    At the later hearing on the Commonwealth’s motion to close the bail hearing, the
    prosecutor stated that he had submitted the sealed documents because they were “relevant to the
    issue of danger to the community,” which the court “must consider in a bond determination.” Id.
    at 170. In support of his request for excluding the public from the hearing, the prosecutor made
    two arguments. First, he contended that the pandemic had made jury selection difficult and that
    the sealed documents could have the potential of prejudicing Pearson’s defense. Second, the
    internal affairs files of the police department are generally considered to be confidential. Both
    reasons, he concluded, would protect Pearson’s trial from being “impermissibly tainted by
    unfairly prejudicial pretrial publicity” and would give the Commonwealth the ability to “fully
    articulate the reasons as to why what is in the sealed bond revocation motion constitutes probable
    cause” to revoke Pearson’s bail. Id. at 172. The court granted the Commonwealth’s request to
    close the bail-revocation hearing, which reconvened a few days later.
    3
    Dujardin, The Daily Press, LLC, and The Virginian-Pilot Media Companies, LLC filed
    a joint appeal making the same arguments. For convenience, we will refer to them collectively
    as the “Newspaper Publishers.”
    4
    The consolidated cases have separate joint appendices. All citations to the Joint
    Appendix in this opinion refer to the appendix filed with Record No. 210787.
    3
    After the closed bail-revocation hearing, the court heard from the Newspaper Publishers
    on their remaining requests for access. The court denied the Newspaper Publishers’ motion for
    access to the transcript of the bail-revocation hearing conducted in their absence. The court also
    denied their motion to unseal more than 450 pages of documents, which included the motion to
    revoke bail and its supporting exhibits. In support of its decisions, the court relied upon three
    rationales. First, the court expressed its concern “about the difficulty in seating jurors” because
    of the pandemic. Id. at 301. Second, the court focused on the potential that public access to the
    information “would impair the defendant’s rights to a fair trial,” particularly in light of
    widespread publicity of other cases involving police shootings. Id. at 302. Finally, the court
    observed that the sealed documents referred to incidents involving Pearson that “occurred prior
    to 2019” and thus “have no relevance to what happened in 2019 when the crimes alleged in the
    indictment occurred.” Id. at 303.
    While this dispute was taking place, the City of Newport News filed a motion arguing,
    among other things, that the sealed documents the Newspaper Publishers sought to access
    included reports concerning Pearson created by the Internal Affairs Division of the Newport
    News Police Department. Pearson participated in these internal investigations, the City claimed,
    as a coercive condition of his employment. Using these documents against him in a criminal
    proceeding, the City reasoned, would violate Pearson’s right against self-incrimination protected
    by the Fifth Amendment. In addition, the City continued, Virginia law generally treats these
    investigations as confidential in order to encourage the full cooperation of the investigated
    officer and any other cooperating witnesses. Finally, the City contended that under Rule
    3A:12(b), the subpoenaed documents could not become judicial records subject to public review
    until they were admitted into evidence at trial.
    4
    The trial court denied the City’s motion, stating that the City’s “arguments were rejected
    by the [c]ourt for lack of standing.” J.A. at 323. In a later order, the court again held that the
    City had no standing to “insert itself into this criminal case” after it had provided the subpoenaed
    documents. Id. at 331. Invoking the “inherent authority” of the court under Code § 8.01-271.1,
    the court enjoined the City “from filing any motions or inserting itself in this case without prior
    approval from the court.” J.A. at 331-32.5
    II.
    The Newspaper Publishers filed an appeal of the court’s closure and sealing decisions. 6
    The City filed an appeal of the court’s refusal to consider the City’s motions to prohibit the
    public disclosure of the subpoenaed documents attached as exhibits to the Commonwealth’s
    motions. Because the disputes in both appeals involve similar issues, we have consolidated these
    cases for purposes of appellate review and have divided our discussion into two parts: the
    closure of the bail-revocation hearing and the sealing of the judicial records.
    A. BAIL-REVOCATION HEARING
    1. General Principles
    The scope of the open-courts doctrine presupposes that “‘[p]eople in an open society do
    not demand infallibility from their institutions, but it is difficult for them to accept what they are
    5
    The July 19, 2021 order enjoining the City occurred after the notice of appeal in this
    case. In an interlocutory appeal, however, any uncontested facts and proceedings in a lower
    court’s record that are relevant to the issues appealed may be considered by an appellate court.
    6
    The Newspaper Publishers’ petition for appeal identified the Commonwealth and
    Pearson as appellees. The Office of the Commonwealth’s Attorney for the City of Suffolk filed
    a brief titled, “Brief of Appellees,” but the body of the brief and the certificate of service suggest
    that the brief was filed solely on behalf of the Commonwealth. See Commonwealth’s Br. at 1,
    18-19. Counsel for Pearson did not file a separate brief; nor did Pearson’s counsel make any
    appearance on appeal.
    5
    prohibited from observing.’ Closed proceedings, although not absolutely precluded, must be rare
    and only for cause shown that outweighs the value of openness.” Press-Enterprise Co. v.
    Superior Ct. of Cal., 
    464 U.S. 501
    , 509 (1984) (Press-Enterprise I) (citation omitted). The scope
    of this doctrine has been debated for centuries, but its existence as an essential check on the
    exercise of judicial power was recognized as early as the Norman Conquest and continues to
    hold as “important a role in the administration of justice today as it did for centuries before our
    separation from England.” 
    Id. at 505, 508
    .
    In Virginia, the open-courts doctrine has the protection of the United States Constitution,
    see Richmond Newspapers, Inc. v. Virginia, 
    448 U.S. 555
    , 575-80 (1980) (Richmond I), the
    Virginia Constitution, see Richmond Newspapers, Inc. v. Commonwealth, 
    222 Va. 574
    , 588
    (1981) (Richmond II), a 100-year-old statute, see Code § 17.1-208, and our enduring reliance on
    historical English common law, see Shenandoah Publ’g House, Inc. v. Fanning, 
    235 Va. 253
    ,
    258 (1988) (construing current Code § 17.1-208, which “has endured for more than a century”
    and codified “the generally accepted common-law rule of openness”); cf. White v. United States,
    
    300 Va. 269
    , 277 & n.5 (2021) (applying Code § 1-200). These bulwarks of our law make clear
    that “[t]here is no special perquisite of the judiciary which enables it, as distinguished from other
    institutions of democratic government, to suppress, edit, or censor events which transpire in
    proceedings before it.” America Online, Inc. v. Anonymous Publicly Traded Co., 
    261 Va. 350
    ,
    362 (2001) (quoting Craig v. Harney, 
    331 U.S. 367
    , 374 (1947)).
    In the context of criminal proceedings, the doctrine imposes a presumption of
    transparency on one of the most basic functions of government. “The commission of crime,
    prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are
    without question events of legitimate concern to the public and consequently fall within the
    6
    responsibility of the press to report the operations of government.” Cox Broad. Corp. v. Cohn,
    
    420 U.S. 469
    , 492 (1975). For this reason, the United States Supreme Court has applied the
    doctrine to criminal trials, see Globe Newspaper Co. v. Superior Ct. for Cnty. of Norfolk, 
    457 U.S. 596
    , 604-06 (1982), jury voir dire hearings, see Press-Enterprise I, 
    464 U.S. at 505
    , and
    preliminary hearings, see El Vocero de Puerto Rico v. Puerto Rico, 
    508 U.S. 147
    , 149-50 (1993)
    (per curiam); Press-Enterprise Co. v. Superior Ct. of Calif., 
    478 U.S. 1
    , 10 (1986) (Press-
    Enterprise II), and we have extended the doctrine to pretrial suppression hearings and hearings
    on motions in limine, Richmond II, 222 Va. at 586-88.
    Even when applicable, the doctrine does not open the doors of every courtroom in every
    criminal case. The public’s right of access “may give way in certain cases to other rights or
    interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting
    disclosure of sensitive information.” Waller v. Georgia, 
    467 U.S. 39
    , 45 (1984). “Such
    circumstances will be rare, however, and the balance of interests must be struck with special
    care.” 
    Id.
     This duty of special care employs a rebuttable presumption favoring a right of access.
    A party seeking to rebut the presumption has the burden of proving that the denial of public
    access “is necessitated by a compelling governmental interest” and that any bar to access is
    “narrowly tailored to serve that interest.” Press-Enterprise I, 
    464 U.S. at 510
     (citation omitted).
    Under this approach, a court cannot close the proceeding without first determining whether
    “reasonable alternatives” to closure can accommodate the government’s compelling interests.
    Presley v. Georgia, 
    558 U.S. 209
    , 214 (2010) (citation omitted) (interpreting analogous
    principles protected by the Sixth Amendment right to a public trial).7
    7
    As the United States Supreme Court said in Presley, we also conclude here: “The
    extent to which the First and Sixth Amendment public trial rights are coextensive is an open
    7
    On each of these issues, a court must make “findings adequate to support the closure.”
    
    Id.
     (citation omitted). These findings must be made “even when they are not offered by the
    parties” because “[t]he public has a right to be present whether or not any party has asserted the
    right.” Id.; see also Daily Press, Inc. v. Commonwealth, 
    285 Va. 447
    , 455 (2013) (requiring
    “specific findings” showing a “compelling governmental interest” and a “narrowly tailored”
    effort to advance that interest); Richmond II, 222 Va. at 588 (requiring “an overriding interest
    articulated in findings” (citation omitted)).
    The rebuttable presumption safeguarding the open-courts doctrine protects a particularly
    important “community therapeutic value” in criminal cases. Press-Enterprise I, 
    464 U.S. at 508
    (citation omitted); see also Richmond II, 222 Va. at 585 (citation omitted). Because “[c]riminal
    acts, especially violent crimes, often provoke public concern, even outrage and hostility,”
    providing public access to criminal proceedings gives citizens the opportunity to decide for
    themselves if “the law is being enforced and the criminal justice system is functioning.” Press-
    Enterprise I, 
    464 U.S. at 509
    . “Proceedings held in secret would deny this outlet and frustrate
    the broad public interest.” 
    Id.
     “[B]y subjecting the police, prosecutors, and judicial processes to
    extensive public scrutiny and criticism,” the open-courts doctrine plays an essential role in
    “effective judicial administration.” Sheppard v. Maxwell, 
    384 U.S. 333
    , 350 (1966).
    2. Barring the Public from the Bail-Revocation Hearing
    With these background principles, we turn to the Newspaper Publishers’ argument that
    the trial court erred in barring the public from the hearing to address the Commonwealth’s
    motion to revoke Pearson’s bail. We begin by asking whether the open-courts doctrine applies to
    question, and it is not necessary here to speculate whether or in what circumstances the reach or
    protections of one might be greater than the other.” Presley, 
    558 U.S. at 213
    .
    8
    pretrial bail hearings, a question of first impression in Virginia. Appellate courts that have
    addressed this issue elsewhere, however, have found little trouble concluding that the doctrine
    applies to pretrial bail hearings. See, e.g., Seattle Times Co. v. United States Dist. Ct. for W.
    Dist. of Wash., 
    845 F.2d 1513
    , 1516-17 (9th Cir. 1988); In re Globe Newspaper Co., 
    729 F.2d 47
    , 52 (1st Cir. 1984); United States v. Chagra, 
    701 F.2d 354
    , 364-65 (5th Cir. 1983); United
    States v. Edwards, 
    430 A.2d 1321
    , 1344-45 (D.C. 1981); State v. Williams, 
    459 A.2d 641
    , 650
    (N.J. 1983).
    These courts have found, as do we, that “considerations of experience and logic,” In Re:
    Bennett, 
    301 Va. 68
    , 70 (2022) (per curiam) (citation omitted), require that pretrial bail hearings
    be included within the scope of the open-courts doctrine. This conclusion recognizes that “the
    bail decision is one of major importance to the administration of justice, and openness will help
    to assure the public that the decision is properly reached.” In re Globe Newspaper Co., 
    729 F.2d at 52
    . “Pretrial detention clearly has a substantial relation to preventing injury to the public,”
    Edwards, 
    430 A.2d at 1341
    , and “[p]retrial release proceedings require decisions that attract
    significant public interest, and invite legitimate and healthy public scrutiny,” Chagra, 
    701 F.2d at 363
    . Those concerns are particularly true here. No Virginia court should admit to bail a
    pretrial detainee if there is “probable cause to believe that . . . [h]is liberty will constitute an
    unreasonable danger to . . . the public.” Code § 19.2-120(A)(2). Because it would make no
    sense to categorically exclude members of the public from a judicial hearing addressing their
    own personal safety, we hold that “the public has a First Amendment right of access to pretrial
    proceedings setting and modifying bail,” as well as to any “documents on which the bail
    decisions are based.” In re Globe Newspaper Co., 
    729 F.2d at 52
    .
    9
    We next ask whether the trial court in this case made “findings adequate to support the
    closure,” Presley, 
    558 U.S. at 214
     (citation omitted), of the bail-revocation hearing. The court
    gave three reasons for its closure order: (i) general concerns over the difficulty in seating jurors
    during the pandemic; (ii) the potential prejudice to Pearson’s right to be tried by an impartial
    jury, particularly given recent publicity involving police shootings; and (iii) the fact that the
    evidence presented at the bail-revocation hearing had no relevance to the alleged crime.
    Limiting our review to these stated reasons, we conclude that none rebuts the constitutional
    presumption of public access to the bail-revocation hearing.
    As for the first reason, the Commonwealth has abandoned this rationale on appeal. “The
    pandemic is a non-issue, your honor,” counsel stated at oral argument; “I don’t . . . even want to
    address that because juries were being seated at the time this case . . . came before the court.”
    Oral Argument Audio (Record No. 210787) at 19:20 to 19:35. Though not bound by this
    concession, we nonetheless accept it. No party presented evidence suggesting that at the time of
    the closure decision the Newport News Circuit Court was unable to assemble venires for jury
    trials. Nor did any party in the trial court make a factual proffer suggesting as much.8 We thus
    find this reason inadequate to rebut the presumption that the bail-revocation hearing should have
    been open to the public.
    The second reason — the degree to which pretrial publicity might prejudice Pearson’s
    right to an unbiased jury — is one of the few reasons that could justify the closure of a pretrial
    8
    The only evidence submitted on this issue was an article from Virginia Lawyers Weekly
    from October 2020 reporting that some courts in Norfolk were having difficulty in seating jurors
    because of the pandemic. That report’s dateline, however, was a year before Pearson’s then-
    scheduled trial, six months before the bail-revocation hearing, and before any COVID-19
    vaccine had been approved by the U.S. Food and Drug Administration for distribution to the
    public. Nothing in the article, moreover, described the specific conditions facing the Newport
    News Circuit Court at the time of the hearing.
    10
    hearing in a criminal case. See, e.g., In re Globe Newspaper Co., 
    729 F.2d at 58-59
     (holding that
    the trial court properly closed the portions of a bail hearing that included electronic surveillance
    materials not yet determined to have been legally obtained). The possibility of prejudice is never
    enough, however, as that could be hypothesized as a potential risk in every criminal case. To be
    sure, “pretrial publicity[,] even pervasive, adverse publicity[,] does not inevitably lead to an
    unfair trial.” Nebraska Press Ass’n v. Stuart, 
    427 U.S. 539
    , 554 (1976); see also Press-
    Enterprise II, 
    478 U.S. at 15
     (“The First Amendment right of access cannot be overcome by the
    conclusory assertion that publicity might deprive the defendant of that [fair trial] right.” (citation
    omitted)).
    To determine whether pretrial publicity constitutes a “compelling governmental interest,”
    Press-Enterprise I, 
    464 U.S. at 510
     (citation omitted), courts must ask not merely whether there
    is a “reasonable likelihood” of prejudice but rather whether a “substantial probability” of
    prejudice exists, Press-Enterprise II, 
    478 U.S. at 14
    . As Professor LaFave has observed:
    Although [the substantial probability] standard was stated in the
    context of the preliminary hearing, it has been viewed as the
    appropriate standard for “fair-trial” closures of all parts of the
    criminal process to which the First Amendment [r]ight of access
    applies, and precluding disclosure by sealing records that
    otherwise are subject to the First Amendment right of access.
    6 Wayne R. LaFave et al., Criminal Procedure § 23.1(e), at 292 & n.243 (4th ed. 2015). In plain
    terms, this means that the risk of prejudice must be so palpable and the need to combat it so
    necessary that a trial court could not confidently rely on the voir dire process to ameliorate the
    risk. That process, when properly managed, provides the parties with adequate opportunities to
    question prospective jurors and to exercise peremptory and for-cause strikes in order to ensure an
    unbiased trial jury. Rule 3A:14(a)(4) requires the trial court to ask prospective jurors whether,
    among other things, they have “acquired any information about the alleged offense or the
    11
    accused from the news media or other sources and, if so, whether such information would affect
    [their] impartiality in the case.” Counsel thereafter have as “a matter of right,” LeVasseur v.
    Commonwealth, 
    225 Va. 564
    , 580 (1983) (interpreting Code § 8.01-358), the opportunity to ask
    additional, appropriate questions to determine whether a “juror does not stand indifferent in the
    cause,” Code § 19.2-262.01.
    In this case, the opportunity to conduct voir dire constitutes a “reasonable alternative[],”
    Presley, 
    558 U.S. at 214
    , to the trial court’s decision to bar the public from the bail-revocation
    hearing. The court could have also considered “sequestration of jurors” or a “change of venue”
    to provide additional safeguards. Shenandoah Publ’g House, Inc., 235 Va. at 258-59; see also
    Nebraska Press Ass’n, 
    427 U.S. at 563-64
     (viewing a change in venue and jury sequestration as
    possible “alternatives”); Richmond II, 222 Va. at 584 (noting the alternatives provided in
    Virginia to change venire, change venue, question prospective jurors, conduct voir dire, and
    sequester jurors). With these safeguards available, we see no basis for the court’s concern that
    Pearson’s right to an unbiased jury would not be fully protected. It was, after all, the
    Commonwealth — not Pearson — that first made the motion to close the bail-revocation
    hearing. Pearson’s counsel later orally joined in the motion in response to a question from the
    trial court, but counsel did so with the caveat that he did not “have any legal authority to make
    that request.” J.A. at 178. In short, barring the public from the bail-revocation hearing was ill-
    fitted for the potential harm and was not a “narrowly tailored” measure, Press-Enterprise I, 
    464 U.S. at 510
    . 9
    9
    We appreciate the trial court’s concern with the high-profile nature of this prosecution.
    Many cases in which the open-courts doctrine has been applied, however, involve high-profile
    circumstances. See, e.g., Press-Enterprise II, 
    478 U.S. at 3-4
     (applying the doctrine to
    transcripts of a preliminary hearing in a death-penalty case involving the alleged murder by a
    12
    The final reason for closing the hearing was the court’s concern that information from
    some of the sealed documents was discussed during the hearing. This information, the court
    stated, addressed incidents involving Pearson “that occurred prior to 2019” and thus “have no
    relevance to what happened in 2019 when the crimes alleged in the indictment occurred.” J.A. at
    303. That statement may be true, but it is answering the wrong question. The only issue before
    the court was whether to revoke Pearson’s bail — not whether Pearson was innocent or guilty of
    the indicted crimes. Evidence of the alleged crimes is admissible at a bail hearing, see Code
    § 19.2-120(B)(i), but so is evidence having nothing to do with the alleged crimes. 10 Under Code
    § 19.2-120(A), evidence tending to show “probable cause” that the accused is a flight risk or
    would pose an “unreasonable danger” to himself or anyone else is relevant to a bail
    determination. The trial court was mistaken when it thought that the evidence of events that
    nurse of 12 patients); Press-Enterprise I, 
    464 U.S. at 503
     (opening a courtroom for access to voir
    dire in a case involving an alleged rape and murder of teenage girl); Globe Newspaper Co., 
    457 U.S. at 606-10
     (applying the open-courts doctrine to trials involving minor victims); Richmond I,
    
    448 U.S. at 559
     (applying the doctrine to a murder trial being conducted for the fourth time after
    press coverage of the first three trials); Daily Press, Inc., 285 Va. at 450-51 (requiring public
    access to sealed exhibits in a case involving the murder of an infant); Richmond II, 222 Va. at
    579-84 (releasing the transcripts of previously closed suppression hearings involving three
    separate murder cases).
    10
    When deciding to admit or deny bail, a court “shall” consider all relevant evidence
    including, but not limited to,
    the history of the accused or juvenile, including his family ties or
    involvement in employment, education, or medical, mental health,
    or substance abuse treatment; his length of residence in, or other
    ties to, the community; his record of convictions; his appearance at
    court proceedings or flight to avoid prosecution or convictions for
    failure to appear at court proceedings; and whether the person is
    likely to obstruct or attempt to obstruct justice, or threaten, injure,
    or intimidate, or attempt to threaten, injure, or intimidate, a
    prospective witness, juror, victim, or family or household member
    as defined in § 16.1-228.
    Code § 19.2-120 (omitting subdivision numbers).
    13
    “occurred prior to 2019,” J.A. at 303, should be kept secret because those facts had no relevance
    to Pearson’s guilt or innocence on the charged crimes. The Newspaper Publishers’ right of
    access to a bail hearing was not limited to only those facts and arguments that would also be
    admissible in or relevant to the trial.
    For these reasons, the court erred by closing the doors of the courtroom to the Newspaper
    Publishers and the public at large. The decision to grant or to deny pretrial bail requires in all
    cases a judicial assessment of the risk that the defendant’s freedom could be a threat to the safety
    of others. Except in the rarest of circumstances, this decision must be made in open court so that
    the public — including victims of the defendant’s charged crimes and any potential victims of
    his future crimes — would know how and why, not simply what, the court has ruled on the issue.
    Having found no merit in the three rationales articulated by the trial court for closing the
    hearing, we have independently reviewed the transcript of the hearing and determined that there
    is no other basis for it to remain sealed. For this reason, we will unseal the transcript and make it
    available to the Newspaper Publishers and the public on the date that we issue our appellate
    mandate pursuant to Rule 5:36.
    B. SEALING THE COMMONWEALTH’S MOTIONS AND EXHIBITS
    We next turn to the question whether various documents associated with the
    Commonwealth’s motion to revoke bail and motion to preclude various defenses should remain
    sealed. Both the Commonwealth, as appellee in the Newspaper Publishers’ appeal, and the City
    of Newport News, as the appellant in its separate appeal, argue that the trial court properly
    maintained these documents under seal. The Newspaper Publishers disagree and argue that the
    sealed documents should be unsealed. The disputed documents are indexed in the sealed record
    as follows:
    14
       the Commonwealth’s cover letter and pleading titled, “Motion
    to Revoke Bond” with two exhibits and
       the Commonwealth’s cover letter and “Appendix to its
    Memorandum of Law in Support of its Motion to Preclude the
    Defenses of Self-Defense, Defense of Others, and Character
    Evidence of the Victim” with Exhibits 1, 2A, 2B, 2C, 2D, 3A,
    3B, 3C, 3D, 6, 7, 8, and 9.
    The sealed documents are almost 450 pages in total. 11
    The exhibits in the sealed record appear to be documents obtained from the City in
    response to a subpoena from the Commonwealth. These documents, the City states, are “internal
    administrative investigations of prior, unrelated matters conducted by the Newport News Police
    Department’s (NNPD’s) Internal Affairs Division (IA).” City’s Br. at 2. Objecting to any
    unsealing of these documents, the City filed in the trial court a “Motion to Reconsider Motion to
    Quash, Strike Commonwealth’s Pleading, and Enter Protective Order Pursuant to Rule 3A:12”
    and a later “Motion to Prohibit Disclosure of Discovery Materials Pursuant to Rule 3A:12 and
    the Court’s Contempt Powers.” J.A. at 136-47; R. at 892-904. Neither of these two motions
    were sealed. The court refused to consider the motions on the ground that the City had no
    standing to insert itself into a pending criminal case after the City had provided the subpoenaed
    documents. 12
    11
    On Appeal, the Newspaper Publishers did not specifically address the “Defendant’s
    Response to the Commonwealth’s Motion to Revoke Bond,” which is also found in the sealed
    record, and thus, we have not included it in our analysis.
    12
    The trial court added that the City’s previous objections to the Commonwealth’s
    subpoenas were rejected by the court and that ruling became “law of the case for all future
    proceedings in the same litigation in the same court, unless successfully challenged in an
    appellate court.” J.A. at 330-31. In context, it appears that the court concluded that it had no
    authority to reconsider, modify, or vacate its earlier order. If so, the court misapprehended the
    law-of-the-case doctrine. “The law-of-the-case doctrine has no binding effect on a trial court
    prior to an appeal.” In re Brown, 
    295 Va. 202
    , 224 (2018) (citation omitted).
    15
    On appeal, the City argues that it had standing to object to the Newspaper Publishers’
    effort in the trial court to unseal the City’s subpoenaed documents and continues to have
    standing to contest their efforts to obtain the same relief on appeal. For their part, both the
    Commonwealth and Newspaper Publishers argue in support of the trial court’s holding that the
    City had no standing either in the trial court or on appeal. On the merits, however, they part
    company. The Commonwealth argues that all the documents should remain sealed, and the
    Newspaper Publishers argue that none of the disputed documents should be.
    1. The City’s Standing
    We begin with the threshold question of standing. Both the Commonwealth and the
    Newspaper Publishers argue that the City never moved to intervene as a party to the criminal
    case and thus has no standing even now to assert its interests on appeal. Because we disagree
    with how this question has been framed, we find the proffered answer unpersuasive.
    Intervention is a broad concept that means different things in different contexts. In civil
    cases, for example, Rule 3:14 provides that “[a] new party may by leave of court file a pleading
    to intervene as a plaintiff or defendant to assert any claim or defense germane to the subject
    matter of the proceeding.” “[T]he Rule’s history includes a strong adherence to limiting
    intervention to those parties who are legitimately plaintiffs or defendants in litigation because the
    nature of their claim includes some right that is involved in the litigation.” Hudson v. Jarrett,
    
    269 Va. 24
    , 34 (2005) (interpreting the predecessor to Rule 3:14). See generally Kent Sinclair &
    Leigh B. Middleditch, Jr., Virginia Civil Procedure § 9.13[B], at 747-49 (7th ed. 2020).
    No similar rule applies to criminal cases, and understandably so, as it seems difficult to
    imagine a non-party intervening as either a prosecuting authority or as a co-defendant. In the
    context of the open-courts doctrine, however, non-parties are nonetheless permitted to make a
    16
    special appearance in criminal cases to assert their claimed right of access to the court
    proceedings and records. Like many other courts, we treat these special appearances as being
    within the broad definition of intervention. See Richmond II, 222 Va. at 590 (referring to the
    right of access as “the public’s right of intervention in a criminal proceeding”). 13 Whether by
    that name or another, we agree that a non-party may assert a right-of-access claim during a
    pending criminal case given the court’s “inherent authority to control [its] records, and this
    inherent authority includes the power to unseal a record previously ordered sealed.” In Re:
    Bennett, 301 Va. at 68. When asserting such a claim, the claimant is not seeking to become a
    party subject to the adversarial pleadings but instead is merely making a special appearance
    solely on the ancillary issue of access to the judicial proceeding and court records. Id.
    In this case, the City was not seeking access to judicial records, but the opposite — to
    prohibit access to its own records subpoenaed by the Commonwealth and filed under seal. Even
    so, though they were not styled as motions to intervene, the City’s motions were consistent with
    the process governing subpoenaed documents. Rule 3A:12(b)(2) requires subpoenaed
    documents received by the clerk of court in a criminal case to “be placed under seal” and to be
    made available for “examination and review” only by the parties and their counsel. The “entity
    or individual subpoenaed” has a right under Rule 3A:12(b)(3)(iv) to make an appearance in the
    case seeking, among other things, a court order “prohibiting or limiting disclosure” of the
    documents.
    That is just what the City did in this case. The City was not joining the proceeding either
    13
    See also In re Associated Press, 
    162 F.3d 503
    , 507-08 & n.6 (7th Cir. 1998) (collecting
    cases demonstrating that intervention is the “appropriate procedural mechanism” by which the
    public asserts the right of access); LaFave, supra, § 23.1(e), at 298-99 & n.276 (explaining that
    lower courts “have imposed procedural requirements” to ensure “interested members of the
    public an opportunity to intervene” on closure motions).
    17
    to prosecute or defend the criminal charges against Pearson. Instead, the City was making a
    special appearance for a very specific, narrow purpose — to object to the public dissemination of
    previously sealed documents obtained from the City under Rule 3A:12. Just as the press has a
    right to intervene in an ongoing criminal case to assert a right to access court records, a non-party
    whose records were subpoenaed has a right to contest any attempt to unseal these records. The
    trial court erred, therefore, in holding that the City had no standing in this case.
    2. The Sealed Documents
    Based upon its ruling that the City had no standing, the trial court declined to address the
    City’s arguments in favor of keeping these documents out of the public’s view. Because we
    serve as “a court of review, not of first view,” Bailey v. Loudoun Cnty. Sheriff’s Off., 
    288 Va. 159
    , 181 (2014) (citation omitted), in cases in which a successful appellant was not heard on a
    preserved issue below, we typically remand the case to the trial court with instructions to decide
    the disputed matter in the first instance. In the present circumstances, however, the City makes
    several purely legal arguments as to why we should end the dispute here by striking the
    Commonwealth’s motions and thereby allowing all of the City’s exhibits to maintain their sealed
    status. We find none of these arguments persuasive.
    a.
    The City first argues that the sealed documents are not judicial records subject to the
    open-courts doctrine. The parties agree that the doctrine generally applies to judicial records in
    criminal and civil cases. Daily Press, Inc., 285 Va. at 454-55 (holding that the “constitutional
    right of access extends to the inspection of documents filed in [criminal] proceedings”); Globe
    Newspaper Co. v. Commonwealth, 
    264 Va. 622
    , 628 (2002) (“The right of access to judicial
    proceedings and records is well-established.”); Shenandoah Publ’g House, Inc., 235 Va. at 258
    18
    (applying the doctrine to judicial records in civil cases). 14 The parties disagree, however, on
    what specific documents in a court’s record constitute judicial records subject to the doctrine.
    We have not provided in prior cases, nor do we today, a “comprehensive and exclusive”
    list of judicial records covered by the open-courts doctrine. See Smith v. Richmond Newspapers,
    Inc., 
    261 Va. 113
    , 117 (2001). It is enough for present purposes simply to recognize that judicial
    records typically include “pleadings and any exhibits or motions filed by the parties and all
    orders entered by the trial court in the judicial proceedings leading to the judgment under
    review,” Shenandoah Publ’g House, Inc., 235 Va. at 257, 15 as well as “documents which
    contributed to determinations made by the court or jury,” LaFave, supra, § 23.1(d), at 277-80
    (collecting cases). Cf. Code § 17.1-208(A) (incorporating the definition of “court records” from
    Code § 17.1-292, which includes “any record maintained by the clerk in a civil, traffic, or
    criminal proceeding in the court, and any appeal from a district court”). 16
    14
    See also Lotz v. Commonwealth, 
    277 Va. 345
    , 351 (2009); Perrault v. Free Lance-Star,
    
    276 Va. 375
    , 387 (2008); Smith v. Richmond Newspapers, Inc., 
    261 Va. 113
    , 117-18 (2001).
    15
    See Rule 1:4 (“The mention in a pleading of an accompanying exhibit, of itself and
    without more, makes such exhibit a part of the pleading.”).
    16
    We explained in Daily Press, Inc. the relationship between the relevant statutory and
    constitutional principles:
    Code § 17.1-208 explicitly states that any records and papers
    maintained by the clerk “shall be open to inspection by any
    person.” With respect to our analysis, Code § 17.1-208’s statutory
    presumption of access is equivalent to the constitutional right of
    access. Court documents can only be sealed on the basis of “an
    interest so compelling that it cannot be protected reasonably by
    some measure other than a protective order,” and “any such order
    must be drafted in the manner least restrictive of the public’s
    interest.”
    Daily Press, Inc., 285 Va. at 456 (quoting Shenandoah Publ’g House, Inc., 235 Va. at 259).
    19
    These broad definitions, however, are subject to an important limiting principle. When
    applying the constitutional open-courts doctrine, documents “filed with the court are ‘judicial
    records’ if they play a role in the adjudicative process, or adjudicate substantive rights.” In re
    U.S. for an Order Pursuant to 
    18 U.S.C. Section 2703
    (D), 
    707 F.3d 283
    , 290 (4th Cir. 2013)
    (emphasis added). 17 If not, they are subject only to common-law principles, which, unlike the
    constitutional doctrine, may be superseded by statute. The constitutional doctrine polices only
    the judicial process, not the entire litigation process.
    Thus, a document that bears no relation to the adjudicative process does not become
    subject to the open courts doctrine just because a litigant files it with a court. For example, a
    litigant’s attempt to abuse the judicial process — by filing documents for the sanctionable
    purpose of public dissemination of irrelevant, scandalous information — cannot create judicial
    records entitled to the constitutional presumption of public access. The open-courts doctrine, all
    courts agree, should not be employed in a manner that inadvertently encourages the whims of
    malicious litigants. The public has a right to know what their courts are doing or have already
    done, but they do not have a constitutional right to know the contents of documents which play
    no role in the adjudicative process.
    This limiting principle does not apply to this case. As explained earlier, supra at 8-9, a
    motion to revoke bail plays an integral role in the adjudicative process of criminal courts. The
    public has a strong interest in knowing whether, how, and why a court concludes that a criminal
    defendant awaiting trial should be released back into the community or held in pretrial detention.
    The decision focuses on whether releasing the defendant would constitute an “unreasonable
    17
    See also In re Providence J. Co., 
    293 F.3d 1
    , 9-10 (1st Cir. 2002); United States v.
    Amodeo, 
    44 F.3d 141
    , 145 (2d Cir. 1995); Rushford v. New Yorker Mag., Inc., 
    846 F.2d 249
    ,
    252-53 (4th Cir. 1988).
    20
    danger” to the public or whether he would attempt to abscond from justice. Code § 19.2-
    120(A)(2). Equally important is the public’s interest in knowing how broadly or narrowly the
    courts interpret and apply the governing “probable cause” standard, id., which is a level of
    certitude less than proof beyond a reasonable doubt, less than clear-and-convincing evidence,
    and less still than the preponderance standard, which requires a “showing that such a belief be
    correct or more likely true than false,” Evans v. Commonwealth, 
    290 Va. 277
    , 287 (2015)
    (citation omitted).
    In the present case, the Commonwealth’s sealed motion to revoke bail (accompanied by
    its sealed exhibits) argued that two incidents from the defendant’s time as a police officer were
    relevant to the question whether his pretrial release would pose a risk to public safety. 18 For
    purposes of applying the open-courts doctrine, it does not matter whether these alleged incidents
    were sufficient to warrant the relief sought by the motion, the vacatur of Pearson’s bail. What
    does matter is whether these incidents were arguably relevant to the judicial decision to grant or
    deny the relief requested. The incidents in the sealed documents are relevant if they should,
    could, or did play any role in the adjudicative process of granting or denying bail. The same can
    be said of the Commonwealth’s motion to preclude various defenses. Whether the motion was
    successful or not, it and its supporting exhibits were arguably relevant to a core issue before the
    court: what defenses Pearson could legally assert at trial and what jury instructions should be
    18
    The City contends that the trial court violated Rule 3A:12(b) by entering an order
    permitting the Commonwealth to “use” the previously sealed subpoenaed documents as exhibits
    to the Commonwealth’s two sealed motions. City’s Br. at 36-49. Under the City’s interpretation
    of Rule 3A:12(b), the rule only permits litigants and their counsel to examine and review the
    sealed documents but not to later use them as sealed exhibits to sealed motions. Like the trial
    court, we disagree. Rule 3A:12(b) authorizes parties and counsel to examine and review sealed,
    subpoenaed documents for the very purpose of potentially using them in court. The only
    restriction in the text of the Rule 3A:12(b) is that the documents remain sealed until further order
    of the trial court.
    21
    issued in support of those defenses. Applying the traditional definition of judicial records,
    therefore, the Commonwealth’s motions and supporting exhibits fall within the general scope of
    the open-courts doctrine.
    b.
    The City next argues that an exception to these general principles applies to this case
    because the Commonwealth, by attaching these sealed exhibits to its sealed motions, violated
    Pearson’s constitutional right against self-incrimination, see Garrity v. New Jersey, 
    385 U.S. 493
    , 499-500 (1967). In that case, investigators questioned police officers suspected of criminal
    wrongdoing. The investigators told the officers that they could refuse to cooperate, but, if they
    did so, they would be subject to a state “forfeiture-of-office statute” that would result in the
    officers losing their jobs. 
    Id. at 494-98
    . The Supreme Court held that the officers’ inculpatory
    statements were “coerced,” rendering them inadmissible as proof of their guilt in a later criminal
    prosecution. 
    Id. at 500
    ; see also United States v. Indorato, 
    628 F.2d 711
    , 716 (1st Cir. 1980)
    (describing the “two common features” of a Garrity violation).
    Against this backdrop, the City proffers that the “records at issue are the City’s
    confidential records pertaining to internal administrative investigations of prior, unrelated
    matters conducted by the Newport News Police Department’s (NNPD’s) Internal Affairs
    Division (IA).” City’s Br. at 2. The City then states: “Said internal investigations contain
    statements that Pearson and other City employees were compelled to give under threat of
    termination. Such statements cannot be used in a prosecution pursuant to Garrity . . . and its
    progeny.” 
    Id.
     19 The apparent logic is that the City coerced involuntary statements from Pearson,
    19
    See also City’s Brief at 35 (referring to the “compelled statements”); id. at 46-47
    (stating that Pearson was “compelled to give [statements] under threat of termination” in
    22
    and thus, the Commonwealth’s sealed motion and sealed exhibits (which included Pearson’s
    allegedly coerced statements) could not be properly viewed as judicial records because they were
    filed in violation of “Garrity’s self-executing immunity,” Wiley v. Mayor & City Council of
    Balt., 
    48 F.3d 773
    , 778 (4th Cir. 1995).
    The City’s reasoning falters at the very start. The use of Pearson’s allegedly coerced
    statements may or may not violate Garrity,20 but that debate is between Pearson and the
    Commonwealth. Under settled law, “the privilege against self-incrimination ‘is solely for the
    benefit of the witness,’ and ‘is purely a personal privilege of the witness.’” Rogers v. United
    States, 
    340 U.S. 367
    , 371 (1951) (citations omitted). It is a “shield of silence” that cannot be
    “vicariously asserted.” United States v. Skolek, 
    474 F.2d 582
    , 584 (10th Cir. 1973); cf. Plumhoff
    v. Rickard, 
    572 U.S. 765
    , 778 (2014) (applying the same rule to assertions of Fourth Amendment
    rights).
    It necessarily follows that the City — the entity that claims to have coerced Pearson’s
    incriminating statements — has no third-party standing to assert Pearson’s constitutional right
    violation of Garrity); J.A. at 289 (asserting that Pearson’s incriminating statements were
    “compelled” and thus subject to Garrity).
    20
    The Garrity doctrine involves multifaceted issues, many of which remain unsettled.
    See generally David M. Nissman & Ed Hagen, Law of Confessions §§ 3:7 to 3:8, 3:24, at 82-90,
    126-31 (2d ed. 2022); Peter Westen, Answer Self-Incriminating Questions or Be Fired, 
    37 Am. J. Crim. L. 97
    , 98-111 (2010). Given our holding in this case, we offer no opinion on whether
    Pearson’s statements in prior interviews were involuntary under the Garrity standard, see
    generally Steven D. Clymer, Compelled Statements from Police Officers and Garrity Immunity,
    
    76 N.Y.U. L. Rev. 1309
    , 1343-47, 1361-62 (2001), or whether the attempted use of these
    statements in a bail hearing in a criminal case involving later, unrelated charges would violate
    Garrity, see Vogt v. City of Hays, 
    844 F.3d 1235
    , 1240-41 (10th Cir. 2017) (noting a circuit split
    on whether the right against self-incrimination is a “trial right” or a right that can be asserted
    pretrial), cert. dismissed as improvidently granted, 
    138 S. Ct. 1683
     (2018). The City’s apparent
    concession that a Garrity violation occurred in this case involves an issue of law that does not
    bind us or the trial court. See Butcher v. Commonwealth, 
    298 Va. 392
    , 395 (2020) (refusing to
    be bound by a litigant’s “concession of law”).
    23
    against self-incrimination. While the City has standing to assert its own confidentiality rights in
    the dispute over the sealed documents, it may not assert Pearson’s rights. For this reason alone,
    the trial court in this case was right to refuse to consider the City’s argument that unsealing the
    sealed documents would somehow violate Pearson’s constitutional right not to be coerced into
    making incriminating statements.
    c.
    The City also contends that Virginia law “requires that sealed discovery documents be
    admitted into evidence before they become unsealed.” City’s Reply Br. at 10. The City’s
    proffered authority for this premise begins with the text of Rule 3A:12(b)(2), which states:
    “Until such time as the subpoenaed materials are admitted into evidence they must remain under
    seal unless the court orders that some or all of such materials be unsealed.” Rule 3A:12(b)(2)
    (emphasis added). The City then cites to Lotz v. Commonwealth, 
    277 Va. 345
    , 351 (2009),
    which held that certain documents “admitted into evidence” should be unsealed. Reading Rule
    3A:12(b)(2) and Lotz together, the City concludes that we have established a “bright line test”
    that “pinpoint[s]” the judicial act of admitting documents into the evidentiary records as the
    moment “they become judicial records.” City’s Br. at 26.
    This novel argument, if true, would mean that no discovery documents initially sealed
    under Rule 3A:12(b)(2) would ever become “judicial documents” available for public inspection
    if a case ended (as most criminal cases do) prior to an evidentiary trial. The City’s view would
    also forever bar the public from access to previously sealed exhibits that were offered in open
    court but, for whatever reason, were not admitted into evidence.
    We find no support for the City’s position in either the text of Rule 3A:12(b)(2) or our
    holding in Lotz. The unqualified “unless” proviso in Rule 3A:12(b)(2) authorizes a court in its
    24
    discretion to unseal documents whenever it is prudent to do so. The proviso does not expressly
    state or reasonably imply that a court has no discretion to unseal documents that are not admitted
    into evidence. As for Lotz, we held only that exhibits in the evidentiary record were judicial
    records under the open-courts doctrine. We never said the inverse — that documents not
    admitted into evidence cannot be considered judicial records. We thus reject the City’s argument
    that sealed discovery documents must be admitted into evidence before they can be unsealed.
    d.
    The City also argues that the sealed documents fall outside the scope of the general
    definition of judicial records because before being attached as exhibits to the Commonwealth’s
    motions, they were discovery documents obtained by subpoena. Discovery documents, the City
    concludes, are per se excluded from the definition of judicial documents subject to the open-
    courts doctrine. We accept the first premise of this argument but reject its conclusion.
    The City would be correct if the subpoenaed documents were never filed with the trial
    court and kept instead in the litigants’ private possession. See, e.g., In re Alexander Grant & Co.
    Litig., 
    820 F.2d 352
    , 354 (11th Cir. 1987) (per curiam) (addressing discovery documents
    “maintained by the parties” pursuant to a protective order); Shenandoah Publ’g House, Inc., 235
    Va. at 261 & n.3 (adopting the reasoning of In re Alexander Grant & Co. Litigation). 21 But
    when a party attaches “discovery materials to a motion filed with the court” seeking an
    adjudication of the substantive rights of the parties, “the private nature of discovery comes into
    21
    Rule 3A:12(b)(1) requires the subpoenaed document to be produced either in person
    “before the court or the clerk” or “deliver[ed]” to the clerk. Under Code § 17.1-292, “any record
    maintained by the clerk in a . . . criminal proceeding” is deemed part of the “[c]ourt records.”
    We need not decide in this case whether the mere production of subpoenaed documents to the
    clerk in a criminal case qualifies the documents to be judicial records subject to the open-courts
    doctrine.
    25
    conflict with the public’s right to access judicial records.” United States v. Wecht, 
    484 F.3d 194
    ,
    209 (3d Cir. 2007) (addressing criminal discovery documents attached as exhibits to a
    suppression motion).22 When this happens, the motion and its exhibits implicate the court’s
    adjudicatory functions and thus fit squarely within the general definition of “judicial records” as
    documents “filed with the court” that could, should, or did “play a role in the adjudicative
    process, or adjudicate substantive rights.” In re U.S. for an Order Pursuant to 
    18 U.S.C. Section 2703
    (D), 707 F.3d at 290. Broadly speaking, these documents include “any exhibits or motions
    filed by the parties,” Shenandoah Publ’g House, Inc., 235 Va. at 257, that are offered to affect
    “determinations made by the court or jury,” LaFave, supra, § 23.1(d), at 280.
    The Commonwealth filed the sealed documents in support of its motion to revoke bail
    and its motion addressing the applicability of Pearson’s various defenses. Both motions
    implicated core adjudicatory functions of a criminal trial court. These sealed documents cannot
    be categorically dismissed as a sanctionable attempt by the Commonwealth to violate Garrity,
    
    supra at 22-23
    , to misuse Rule 3A:12(b), supra at 24, or to otherwise abuse the judicial process,
    as the City has claimed. The subpoenaed documents were placed before the trial court as
    exhibits to motions seeking to adjudicate substantive issues. Their former status as mere
    discovery documents has no relevance to the open-courts doctrine.
    e.
    Finally, the City insists that if these documents are made available to the public, it will be
    because the Commonwealth in effect “unilaterally unsealed” them by attaching them as exhibits
    22
    See also Commissioner, Ala. Dep’t of Corr. v. Advance Loc. Media, LLC, 
    918 F.3d 1161
    , 1167-68 (11th Cir. 2019) (collecting cases); Bond v. Utreras, 
    585 F.3d 1061
    , 1073-74 (7th
    Cir. 2009).
    26
    to its motions “even though the Commonwealth was without the legal authority to unseal the
    documents on its own.” City’s Br. at 6; see also id. at 22; City’s Reply Br. at 9; Oral Argument
    Audio (Record No. 210827) at 13:50 to 14:05. This argument overlooks the fact that no litigant
    can unseal, unilaterally or not, a sealed judicial record. Only a court can do that. If the City is
    suggesting that the Commonwealth was intentionally attempting to make public previously
    sealed documents, that too would be incorrect. The Commonwealth made its motions under seal
    and has consistently argued in the trial court and on appeal that the City’s documents should
    remain sealed. It is unclear what the City is trying to say with its unilaterally-unsealed argument,
    but it appears to be a pure causality argument: But for the Commonwealth filing its sealed
    motions and exhibits, none of this information would have become a judicial record subject to
    the open-courts doctrine. That truism, however, proves nothing. A version of it can be said in
    every case involving sealed documents.
    3. Scope of Remand
    Having rejected the categorical reasons offered by the City for deeming the sealed
    documents outside the scope of the open-courts doctrine, the task remains of applying it to the
    hundreds of pages of previously sealed documents filed in the trial court. On remand, we direct
    the trial court to permit the Commonwealth, Pearson, the City, and the Newspaper Publishers an
    opportunity to present arguments on whether the sealed documents should be unsealed and to file
    briefs in support of their positions. See, e.g., Waller, 
    467 U.S. at 50
     (“We remand to the [lower]
    courts to decide what portions, if any, may be closed.”). The arguments should take into
    account, among other things, the status of the criminal proceeding as well as any proffers of a
    “compelling governmental interest” that we have not directly rejected in this opinion and any
    measures “narrowly tailored to serve that interest.” See Press-Enterprise I, 
    464 U.S. at
    510
    27
    (citation omitted). The court then should determine if all, some, or none of the disputed
    documents should be unsealed, and if any are unsealed, what redactions, if any, should be made.
    Specific findings should accompany the court’s order resolving this dispute.
    III.
    In sum, we hold that the trial court erred by closing Pearson’s bail-revocation hearing.
    We reverse the court’s holding that the City had no standing to participate in the contest over the
    Newspaper Publishers’ request that the sealed documents be unsealed. We reject several of the
    City’s arguments that the sealed documents are categorically outside the reach of the rebuttable
    presumption of access under the open-courts doctrine. Finally, we direct that all remaining
    issues be resolved on remand consistent with this opinion.23
    Reversed and remanded.
    23
    Our online Virginia Courts Case Information system records that at the time of the
    issuance of this opinion, the jury has returned a verdict adverse to Pearson but that no final
    judgment has been entered by the trial court. We direct the court to enter final judgment in the
    ordinary course and not to delay doing so because of the ongoing dispute over the sealed records.
    As we recently held, In Re: Bennett, 301 Va. at 68-69, disputes such as this are best understood
    as ancillary proceedings that can persist beyond and even arise after the entry of final judgment
    in the underlying case. The time deadlines for Pearson to exercise his right of appeal, therefore,
    will run from the date of the entry of final judgment in his case and not be affected by the
    continuation of this ancillary proceeding.
    28