1. in proceedings other than an actual trial, for the court to receive testimony from or about grand jury proceedings, argument using such testimony, or discussions of such testimony;

2. when the court receives testimony or argument on grand jury evidence or other sensitive information that is the subject matter of the closure motion;

3. when the court determines it is necessary to protect a child witness from "substantial psychological harm" or when it would "result in the child’s inability to effectively communicate," 18 USC 3509(e);

4. when the law requires closure to protect some phase of a juvenile delinquency proceeding (18 USC 5038).

B. The steps in closing trial or pretrial proceedings upon motion by a party areas follows:

1. Notice of motion

Ensure that interested parties, including the media, are given notice and an opportunity to defend against the motion in court. If public notice was given of a scheduled hearing, further notice is not necessarily required. If the motion is ex parte or at an unusual time, the court should delay the hearing until interested parties have been notified.

2. The hearing

The burden is on the movant seeking closure to show

(a) that an overriding interest is likely to be prejudiced if closure is not granted. Such interests include

(i) the defendant’s right to a fair trial; and

(ii) the government’s interest in inhibiting disclosure of sensitive information (the court may, sua sponte, close the hearing to receive the preliminary information or proffer);

(b) that alternatives to closure cannot adequately protect the overriding interest the movant is seeking to protect; and

(c) that closure will probably be effective in protecting against the perceived danger.

3. Decision by the court

(a) In a pretrial proceeding, when the moving party asserts that the defendant’s right to a fair trial will be prejudiced if hearings are conducted publicly, the court should consider

(i) the nature and extent of the publicity to date;

(ii) the size of the jury pool;

(iii) the ease of a change of venue;

(iv) the ability to cure any harm through voir dire;

(v) whether the public already has the information; and

(vi) the impact of further publicity on the publicity that has already occurred.

(b) In deciding whether alternatives to closure can adequately protect the overriding interest that the movant seeks to protect, the court should consider the following alternatives:

(i) granting a continuance;

(ii) granting severance;

(iii) changing the venue;

(iv) changing the venire;

(v) engaging in further voir dire questioning;

(vi) permitting additional peremptory challenges;

(vii) sequestering the jury; and

(viii) instructing the jury.

4. Findings and order

(a) If the court decides to order closure

(i) it must make findings that

(a) without closure, there is a substantial probability that the defendant’s right to a fair trial would be impaired;

(b) steps less drastic than closure would be ineffective in preserving the defendant’s right to a fair trial; and

(c) closure would achieve the desired goal of protecting the defendant’s right to a fair trial.

(ii) the closure must be as narrow as possible;

(iii) the findings must be on the record; and

(iv) the findings must be adequate to support an order of closure.

(b) The order must

(i) be no broader than is necessary to protect the interest asserted by the moving party; and

(ii) be tailored to ensure that proceedings that are closed encompass no more than is actually necessary to protect the interest asserted by the moving party.

(c) Determine whether the order itself should be sealed.