In United States v. Carpenter, --- F.3d ---, No. 17-10498 (9th Cir. 2019), the Court held that the common law right of access
attaches to pre-trial offers of proof for a duress defense.
This was a kidnapping case where a defendant was allowed to pursue a duress defense, but had to file her pre-trial proffer publicly.
The Court affirmed: "We hold today only that the
common law right of access attaches to pre-trial offers of
proof for a duress defense, and that because [defendant] failed
to provide a compelling reason to overcome this presumptive
right of access, the district court did not abuse its discretion
in denying [the defendant's] motion to seal her proffer."
In a minor silver lining, the Court finds error (but harmless) in admitting evidence of drug use during the kidnapping under Rule 404(b): "Drug use 'is highly
prejudicial,' and the connection between the charged
offenses and the methamphetamine use was evidently slight. The low probative value of the
methamphetamine use—particularly in light of the other
evidence that the government introduced to establish the
absence of duress and the codefendants’ state of mind—is 'substantially outweighed' by its prejudice. Fed. R.
Evid. 403."
