Cameras in the courtroom? A fair trial is at stake.

Cameras have been present in U.S. courtrooms since early in the 20th century, when still photographs and newsreels began bringing pictures of court proceedings to the public. Since then, lamyers, judges, and observers of the justice system have debated whether cameras belong in the courts.

One of the earliest forerunners of modern televised trials was the case involving the kidnapping of the Lindbergh baby in 1935. Media attention was intense, and the judge ultimately barred cameras from the courtroom because of the broadcast media's chaotic coverage.(1)

Over time, newer technology made cameras less intrusive - so much so that by 1979, Florida allowed live television coverage of court proceedings, becoming the first state to do So.(2) In 1981, the U.S. Supreme Court held in Chandler v. Florida that live radio and television coverage and still photography of criminal proceedings over the objection of the accused does not violate due process of law under the Fourteenth Amendment.(3)

Today, 47 states allow television cameras in their trial or appellate courts or both (only Indiana, Mississippi, and South Dakota - plus the District of Columbia - ban them).(4) In contrast, after a three-year experimental period in which cameras were allowed in selected federal courtrooms, the U.S. Judicial Conference voted down a proposal to allow cameras in federal courts on a permanent basis.(5) Courts abroad - including those in Canada, England, and Scotland - have experimented with television coverage of court proceedings, and these initiatives have met with resistance.(6)

The Courtroom Television Network (Court TV), now in its fourth year, is the first serious commercial effort to televise trials from gavel to gavel. More than 20 million viewers have access to the network. Court TV has televised more than 340 trials. The network hopes that television will permit the U.S. public to see the inner workings of a trial courtroom with only criminal interference and with the dignity and decorum appropriate to the judicial process.

But can this hope become reality?

Television is now the dominant means by which the media - the so-called fourth branch of government - can reveal the workings of the first and second branches, the executive and legislative. The media's success in showing congressional debates and presidential press conferences raises the vexing question of whether cameras should be allowed in the courtroom to show the workings of the third branch of government, the nation's judicial system.

Those favoring in-court cameras make the important First Amendment argument that the public has a right to know what goes on in a courtroom. Also, the Sixth Amendment guarantees a criminal defendant a public trial, of which the television audience is an important part. Finally, those favoring cameras in the courtroom speak of using TV as a medium for educating the public about the judicial process and promoting public confidence in the outcomes of cases with high public interest.

Those opposed can point to four distorting influences of cameras. First, witnesses may alter their stories to appeal to a television audience. Second, TV may distract the attention of the judge, lawyers, and other court personnel from the serious matter under consideration. Third, television publicity may dissuade a jury from rendering unpopular verdicts. Fourth, there is serious concern about the inevitable slide of commercially televised trials toward the marketing lure of sex, power, and the perverse. Case selection, camera angles, and other aspects of five coverage may be manipulated to cater to mass appeal. These distortions may lead to a challenge to the fairness of the proceedings.

With these competing concerns, the fundamental question presented is where to draw the line on courtroom news coverage. Should press access to the courtroom stop with the print media, or should it extend to television as well?

Distorting Impact

Whether television cameras distort the trials they cover or disrupt the proceedings are issues often debated in the netherworld of speculation. Concrete examples of the distorting impact of in-court cameras will help focus the discussion.

Jury fixing. The notoriety of a case, made evident by television coverage, can alter the jury's determinative process. Speaking on this point, U.S. District Judge Edward Harrington of Boston said:

I am disinclined to allow cameras into the courtroom because it lets jurors know this is an unusual, that is, a celebrated, case. And when jurors are asked to make a judgment in an ordinary case, that is a heavy responsibility. When they are asked to make a judgment in a celebrated case, I think that puts undue pressure on them. And it might well distort the verdict.(7)

Television also creates bias in the population from which the jury is culled. Televised preliminary hearings and motions contribute to a tainted general population.(8) Snippets and edited shots of dramatic trial scenes present the public with only the media's interpretation of the day's events. Unless the jury in every high-visibility case is sequestered, public opinion can seep into the jury's information base and taint its deliberations.(9)

Witness credibility. One certain result of televising real courtroom drama will be legal challenges to the fairness of the trial based on the presence of cameras. In-court cameras raise the marketing consciousness of witnesses. The testimony of witnesses who know they will appear on television may suddenly become, in their mind, valuable less for what it may mean for justice and more for its entertainment value (read cash value to the witness). Cameras in the courtroom blur the distinction between justice and entertainment and may tempt witnesses to embellish their testimony to appeal to the paying media. This is a for-in of technological witness tampering.

The mere fact that a trial participant may sell a story to television is grounds to impeach the credibility of the story. The defense attorney in the William Kennedy Smith date rape trial successfully impeached the credibility of a close friend of the alleged victim because she sold her account about the accuser to a tabloid television show.(10)

Impeaching trial participants on the basis of marketing their own role in a case is not new. But the enormous potential profits from television coverage are a significant new development for impeachment on this basis. Far more than newspapers, television, with its dramatic appeal, corrupts as it portrays.(11)

Lawyers playing to the cameras. In the O.J. Simpson case, an unseemly battle has emerged between opposing counsel to spin their versions of the case before the public - apparently as much inside the courtroom as outside - rather than giving their undivided attention to the fact finder at trial. Even worse, the battle has gone beyond posturing of the case to personal spats as the media pressure intensities.

While these distractions are attributable in part to out-of-court cameras, they point to the effect on lawyering of an extrajudicial audience, made possible by cameras both in and out of the courtroom. The effect is that lawyers direct at least part of their case to the television audience instead of giving their full attention to the judge and jury.

Judges' concerns. Some judges, after they have experienced one or more high-visibility cases and the onslaught of the broadcast media, have expressed second thoughts about the wisdom of televised trials. For example, retired New York State Supreme Court Justice Theodore Kasier said he had been liberal in allowing TV cameras into his courtroom, but after thinking about the issue in retirement, he decided he opposed the idea. Kasler said, "Cameras in the courtroom have a `chilling effect' on witnesses and other participants and coverage isn't fair because reporters aren't given enough air time to present a comprehensive account. . . ."(12)

Constitutional Issues

Any debate that involves limiting public access to courtrooms, whether the access is through television cameras or otherwise, involves First Amendment guarantees. These limits to access must be viewed in a historical context.

The debate on the interplay between the media and the government goes back to the nation's founders, when print, not television, was the dominant means of publicity. The framers of the Constitution were especially aware of the fundamental importance of the press in checking government secrecy and bringing about good governance in democratic societies.

As James Madison wrote in 1822, "A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own governors must arm themselves with the power which knowledge gives."(13)

History has borne out the truth of Madison's words. Because government secrecy shrouds corruption and engenders public distrust in government and its officials, the importance of a free press can not be overstated. It may be well argued that anything a government of the people, by the people, and for the people cannot do openly should not be done at all. Indeed, few would deny the salutary effect of the glare of television in increasing the government's accountability to the public.

Even so, perhaps the observation made by the French historian Alexis de Tocqueville in his classic study Democracy in America, first published in 1848, remains the most astute: "I confess that I do not entertain that firm and complete attachment to the liberty of the press which is wont to be excited by things that are supremely good in their very nature. I approve of it from a consideration more of the evils it prevents than of the advantages it insures."(14)

The First Amendment argument of the public's right to know, so persuasive with respect to the executive and legislative branches, has less sway when applied to the judicial branch for two important reasons.

First, courtroom work tends to focus more on personal lives than on government abuse. Courts routinely order disclosure of the most intimate details of individual fives, businesses, and personal pursuits. A fair trial requires intense scrutiny of these facts, which is why dignity and decorum are so important to the courtroom.

The invasive in-court camera graphically exposes private matters. Space limitations and editorial judgment limit the ability of the print media to publicize personal details that do not bear on the case. But the unblinking lens of the camera has no discretion - nor even a modicum of modesty.

Second, a fair trial depends on detached neutrality. However, neutrality is disrupted when one side plays to the camera either inside or outside the courtroom. Also, even without conscious manipulation, telling a story necessarily entails a point of view.

For example, television coverage might portray the O.J. Simpson case as being about domestic violence or race relations or the excessive adulation of sports heroes or allegedly racially biased Los Angeles police or DNA evidence or superstar lawyers. Viewers can take their pick by tuning into the television show that features their view. And during a broadcast of court proceedings, bias can be interjected by reporters' comments and the choice of camera angles. In this sense, television coverage manipulates rather than serves the public's right to know.

The Sixth Amendment guarantee of a public trial is also important to the fairness of criminal prosecutions. The purpose of the Sixth Amendment publicity guarantee is to protect the defendant from secretive happenings by holding up courtroom events to public scrutiny. Members of politically disfavored minority groups have often received more just hearings due to trial publicity than they might have received behind dosed doors. Although publicity has transformed an event into a caricature of itself in many instances, there are countless examples where the media spotlight has helped to correct an injustice by exposing back-room deals to the bright light of day.

Although television cameras may be appropriate m some cases under the Sixth Amendment rationate, judges should exercise caution. They must avoid situations where media exposure becomes less of a defensive force against injustice and more of an offensive force causing injustice by intimidating witnesses and jurors, distracting the lawyers, and distorting the unfolding drama of the trial.

Television as Educator

Televised court proceedings educate viewers about the workings of justice and help them see the legitimacy of a particular decision. People who watched the William Kennedy Smith trial, for example, could see for themselves that inadequate prosecution, not political favoritism, explained the acquittal."

However, the concept of television as educator involves an underlying question that should be examined when it comes to courtrooms. That question is whether the courtroom experience should be changed to accommodate an educational role by allowing cameras m court. Professor George Gerbner, dean emeritus of the Annenberg School for Communication at the University of Pennsylvania, speaking about how television coverage of criminal trials undermines the court system, said:

The purpose of the court is not education or ... spectacle or public entertainment, but justice. And, as every student of communication knows, when you change the audience, you change the proceeding. It's very difficult for participants in a courtroom who are speaking to a global audience of tens or maybe hundreds of millions of people not to be affected by that.

[Television publicity] makes and breaks reputations, it creates instant celebrities, it encourages what has been called "trash for cash" syndrome ....(16)

Television has played a tremendous educational role with regard to the executive and legislative branches. It has informed the public about die actions of our public officials and has inspired confidence (or destroyed it, as the case may be) in the outcomes of debates over undeniably public matters.

By contrast, the judiciary is engaged largely in the business of settling private disputes. Even criminal cases, in which the state acts as prosecutor, often involve intensely personal matters, and private issues of unwilling participants are often exposed.

For example, legislatures debate issues of legitimate public concern like tax increases, and the federal executive branch decides foreign policy. But the judiciary - particularly in the types of criminal cases that become the fodder of commercial television-looks closely at real-life personal tragedies. While the public is right to be concerned about criminal justice generally, it is hard to describe interest in the lurid details of specific crimes as anything more than voyeurism.

It is worth bearing in mind this admonition from Gerbner: "Before we establish courtrooms as cheap dramatic television program locations, let us find out whether televising criminal trials, no matter how entertaining, enhances or diminishes public understanding and thus the independence and integrity of the criminal justice process."(17)

Drawing the Line

Does the public need both print and broadcast media to cover the courts? The answer seems dear: The print media long have satisfied the public's right to know. Because of television's uniquely distorting bias md its tremendous potential for corrupting the story it seeks to portray, in-court cameras cross the line from being a salutary spotlight to becoming a distorting glare.

The public's right to know beyond the limitations of the print media must be balanced against the inevitable problems that television brings to the courtroom: the distraction of instant publicity; the distortion of an extrajudicial forum to try a case; and the bias of the person holding the camera, who chooses what to show, at what angle, and for how long.

Like other biases, the bias of television may coalesce around politics and culture. However, the biggest bias is self-interest, political and financial, but mainly financial. Television is big business, and the lure of the dollar plays as prominent a role in televising trials as in any other spectator event.

One final question to ask is, Whose story is it, anyway? Parading an alleged rape victim's undergarments in a courtroom may be a necessary part of the judicial process, as it was in the William Kennedy Smith trial. Is further humiliating the woman by making this evidence the fare of national television also necessary? This may make for good commercial television, but does it make for a fair trial?

Notes

(1) Marie Adrine, Lawyers, Witnesses Tune Out Cameras; Focus on Cases, NEW JERSEY LAW, Feb. 17,1992, at 1. See also David A. Harris, The Appearance of Justice: Court TV, Conventional Television, and Public Understanding of the Criminal Justice System, 35 ARIZ. L. REV. 785, 798 n.98 (1993). (2) FLA. STAT. ANN. Code of Jud. Conduct, Canon 3(A)(7) (West 1979). (3) 449 U.S. 560 (1981). (4) Only about 30 states regularly allow television cameras in the courtroom. Most states give judges wide discretion to exclude them. See Ruth Arm Strickland & Richter H. Moore Jr., Cameras in State Courts: A Historical Perspective, 78 JUDICATURE 128,133-35 (1994). (5) Linda Greenhouse, U. S. Judges Vote Down TV in Courts, N.Y. TIME, Sept. 21,1994, at A18. (6) See, eg., R. v. Squires, 78 C.C.C.(3d) 97 (Ont. Ct. App. 1992), leave to appeal refused, 25 C.R.(4th) 103n (S.C.C.) (1993); see also John Aston, Wigs Should Go, But No Cameras in Court, Says Lord Taylor, PRESS ASS'N NEWSFILE, Sept. 30, 1992; Bruce McKain, Lord Hope Lays Down Law on TV in Courts, THE HERALD (Glasgow), Apr. 7,1994, at 3; Tony Atherton, Menendez Story Is Shallow Fare, OTTAWA CITIZEN, May 21,1994, at F6. (7) Mark A. Cohen, Bench Conference, MASS. LAW. WKLY., July 25, 1994, at 40. (8) See Norbert L. Kerr, The Effects of Pretrial Publicity on Jurors, 78 JUDICATURE 120 (1994). This article gives an interesting discussion of the empirical research on how pre-trial publicity tends to prejudice the jury against the defendant, despite confident voices to the contrary among judges, lawyers, jurors, and journalists. (9) See id. at 125, 127. (10) Sexy Willie's Social Whirl, NEWSDAY, Jan. 31, 1992, at 4. In this article, defense attorney Roy Black admitted that he "tiptoed around his tough cross-examination of Patricia Bowman, the alleged rape victim. `I could not do anything but handle her with kid gloves.... On national television - with my mother watching - I had to get her to explain the mechanics of sexual intercourse on the Kennedy lawn at three o'clock in the morning.'" Had his client been found guilty, would there be any doubt that the client would have appealed on the ground that his lawyer soft-pedaled a crucial cross-examination because he did not want to appear insensitive on national television? (11) Even cameras outside the courtroom can have a direct effect on rulings inside the courtroom. In the Jeffrey Dahmer case, when the mother of one of the victim learned that the judge had authorized a screenplay based on the judge's own accounts, she asked the Wisconsin Judicial Commission to investigate a possible conflict of interest. She feared that the judge might have issued prejudiced rulings, knowing that he was later to capitalize on his experiences. This Is One We Can Wait For, L.A. TIMES, Sept. 13, 1992, Calendar Section, at 22. 12 Cameras in the Courtroom? Jury Still Out at Conference, TORONTO STAR, Apr. 25,1994, at All. (13) Polillo v. Deane, 379 A2d 211, 215 (N.J. 1977) (quoting letter to WT. Barry, Aug. 4, 1822, in 9 WRITINGS OF JAMES MADISON 103 (G. Hunt ed., 1910)). (14) 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 230 (Henry Reeve trans., The Century Co. 1898). (15) Another stunning example was the televised West Hartford, Connecticut, school desegregation trial. See Robert A. Frahm, Desegregation Lawsuit to Open with Future of Schools at Stake, HARTFORD COURANT, Dec. 16, 1992, at Al. (16) Courtroom TV Makes for Low-Budget Entertainment (National Public Radio interview with George Gerbner, Dean Emeritus, University of Pennsylvania's Annenberg School for Communication, July 12, 1994). (17) George Gerbner, Trials Don't Belong on TV, PLAIN DEALER (Cleveland), July 1, 1993, at 7-B.

Supporters of Cameras in Court See Benefits

of Televising Trials

For every dismayed critic who views in-court cameras as a threat to the administration of justice, there is a fervent supporter who sees the unbliking camera lens as the best tool for building public confidence in the legal system.

"Cameras in the courtroom present to the public an objective, realistic view of what's actually going on [in court] without all the gossipy, tabloid-type journalism," said Ira London, president of the New York State Association of Criminal Defense Lawyers.

As a prominent criminal defense attorney in New York City - perhaps best known for his defense of convicted child killer Joel Steinberg - London may seem an unlikely friend of in-court cameras. Many of his colleagues, he acknowledged, oppose televised trials, fearing that cameras in the courtroom may compromise defendants' rights.

But London's experience says otherwise. "I've never seen any prejudice from the presence of cameras," he said. "It has always ensured that the judge is not going to be an arm of the prosecution. It has always ensured that the judge will maintain his independence."

Mark Moreland of Charieston, West Virginia, a former chair of ATLA's Criminal Law Section, agreed that parties' rights can be preserved when cameras are present as long as they are quiet and virtually invisible.

With modern technology they can be completely unobtrusive," said Moreland. You can have one camera in the courtroom, which can be out of sight, and pool the media to the video from that camera." Because modern cameras are silent and no longer require bright lights, trial participants usually can tune them out, he added.

"If you're counsel in the case, there is nothing else [other than the case] on your mind," he said.

Steven Brill may be the country's best-known crusader for cameras in the courtroom. As founder and chief executive officer of Court TV, Brill has undertaken to bring gavel-to-gavel coverage of civil and criminal trials to 20 million viewers - and has argued at every turn that any fears about the alleged evils of in-court cameras are unfounded.

Take, for example, concerns that cameras may encourage witnesses to alter their testimony to make it marketable to tabloid television shows. "Every single state that has studied that [question] - like California, Florida, and New York - has found that that doesn't happen," Brill said.

London agreed that embellishment of testimony is unlikely and said the witness's personal character is the key to truthfulness on the stand. "I don't really think that the camera would motivate a person [to he]," he said.

Nor does the presence of cameras adversely affect lawyer behavior, proponents say. "We do a survey of every judge whose cases we've covered," Brill said. "Every one has said cameras in no way have changed the behavior of the lawyers involved."

London, whose defense of Steinberg often appeared live on television, thinks lawyer conduct is affected - for the better. When presenting a case before a TV audience as well as a judge and jury, "you don't want to make a fool of yourself," he said. "You're a little more judicious, you're a little more prepared. You can see it in the O.J. Simpson case. Those lawyers are showing the best lawyering they can."

Opponents of in-court cameras also argue that televising pre-trial proceedings, such as Simpson's preliminary hearing, may make it nearly impossible for attorneys to find impartial jurors. But, said Moreland, "I'd rather [potential jurors] be influenced by accurate [five] coverage of what's going on in the courtroom than by inaccurate coverage based on what some newsman says is going on in the courtroom."

You have to consider what the jurors would know from other sources anyway," London said. "All the tabloids are going to report [these proceedings]. The presence of the cameras ensures that at least that part of [the trial coverage] is going to be objective."

But critics san, objectivity is impossible because coverage by in-court cameras is inevitably accompanied by commentary and supplemental reporting that can slant the story. Brill acknowledged that Court TV's coverage includes some interpretation of events but countered that this criticism applies equally to other media.

"If some blow-dried anchorman tells you what happened without actually showing it, it's the same thing. He gives you an interpretation," Brill said. "The same is true of newspaper coverage. It's a printed sound bite."

Both Brill and London said foes of cameras in the courts often blur the distinction between in-court and out-of-court coverage.

"There are cameras in the courtroom, and there are cameras in the corridors," said London. "Cameras in the corridors are unaffected by any canons of ethics, the code of judicial responsibility, or judicial orders. The fourth estate has an unrestricted privilege to report" outside the courtroom. He said most complaints about television coverage are related to the behavior of reporters-and lanyers outside the courtroom.

Both men also agreed that cameras in the courts are a necessary supplement to other media coverage of the justice system. "The public has had print media, tabloid television, and made-for-TV movies," and these have failed to adequately inform the public about the workings of the courts, brill said.

"Every lawyer in the world knows that the public has a distorted view of the justice system," he added. "People think that jurors give the courthouse away to undeserving plaintiffs. They think there's a litigation explosion." The more the public witnesses firsthand the system at work, he said, the more these myths will be dispelled.

To London, there is one simple reason why television cameras belong in the courtroom: "Because they present the most objective view of the trial."

"My basic reason for being in favor [of cameras in the courts] is freedom of the press," Moreland said. "That can be balanced with the right to a fair trial in both civil and criminal cases if we just put some thought into it."