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Lights, camera, mistrial: conflicting federal court local rules and conflicting theories on the aggregate effect of cameras on courtroom proceedings.

I. INTRODUCTION
II. EVOLUTION OF CAMERAS IN THE COURTROOM
 A. Supreme Court Jurisprudence
 B. Famous Shortfall of Cameras in the Courtroom: the Bruno Richard
 Hauptmann Trial
 C. ABA Canon Evolutions: 1937, 1952, 1982, and Removal of Camera
 Canons
 D. District of Massachusetts vs. Eastern/Southern District of New
 York Local Rules Split
 E. Federal Legislative Activity
 F. Three Regulatory Systems with Three Different Purposes
III. CONCERNS DERIVED FROM CAMERA PRESENCE IN THE COURTROOM
 A. Physical Imposition of Broadcasting or Recording Equipment
 B. Psychological Impacts from Recording or Broadcasting Equipment,
 Size of the Equipment Notwithstanding
IV. EVALUATION OF THE LOCAL RULES & PROPOSED LEGISLATION'S ABILITY TO
 ADDRESS CONCERNS
V. CONCLUSION


I. INTRODUCTION

Since causing a mistrial in the Bruno Richard Hauptmann kidnapping and murder case, cameras have been inconsistently used in courtrooms, but have always sparked contentious national debate. (1) In the beginning, the meddlesome presence of large machinery, lighting, and cabling threatened the court's ability to do justice. (2) More recently, jurors fear the possibility of convicts' allies using video footage to identify jurors and seek retribution against them. (3) Cameras in the courtroom are at the epicenter of a battle between two competing cornerstones of American jurisprudential theory: the public's right to attend trials versus the judiciary's intense aversion toward privacy invasions and distortions of justice. (4)

American jurisdictions have responded differently to the utility-obstruction debate over cameras in the courtroom: while all jurisdictions ban television coverage of jurors, federal district courts deal with cameras differently in their Local Rules. (5) In the District of Massachusetts, Local Rule 83.3 bans broadcasting of any proceeding. (6) In the Southern and Eastern Districts of New York, Local Civil Rule 1.8 confers the discretion to allow cameras upon the presiding judge. (7) Recently, Congress has considered a bill to confer discretion to allow cameras upon presiding judges in the United States District Court, which would preempt the District of Massachusetts Local Rule in favor of the Eastern and Southern Districts of New York. (8) Do the merits of the debate over cameras in the courtroom favor a total ban of cameras, a judicial-discretion rule, or some compromise?

Part II(A) of this Note explains the evolution of Supreme Court case law relative to cameras in the courtroom. (9) Part II(B) examines the 1935 Bruno Richard Hauptmann trial as an example of early media intrusion into trial proceedings. (10) Part II(C) summarizes the American Bar Association's promulgation, amendment, and eventual deletion of ethical rules governing cameras in the courtroom. (11) Part II(D) investigates the split between the District of Massachusetts and the Eastern and Southern Districts of New York concerning local rules governing cameras in the courtroom. (12) Part II(E) summarizes recent federal-level legislative efforts to create a uniform rule among federal district courts. (13)

Part III analyzes current arguments for and against broadcasting court proceedings, focusing on the effect on people in the courtroom. (14) Part IV matches Part III's theoretical pro/con analysis with the practical effects of cameras and recommends a model rule to address concerns with cameras while exploiting potential benefits. (15) Camera use would be best regulated by federal legislation conferring judicial discretion and requiring case-by-case analysis of a camera's potential effect on each proceeding.

PART II. EVOLUTION OF CAMERAS IN THE COURTROOM

The evolution of cameras in the courtroom is best described by addressing three areas. The first part is the United States Supreme Court's jurisprudence, starting in 1963 with Rideau v. Louisiana (16) Second is a discussion of the practical evolution of cameras, beginning with the 1935 trial of Bruno Richard Hauptmann (17) and ending with the 1995 case of O.J. Simpson. (18) Third is a summary of the current split between states permitting and banning cameras in trial and appellate settings.

A. Supreme Court Jurisprudence

The first major consideration of video publicity of a trial was in Rideau v. Louisiana, where police videotaped an interview with the defendant, a suspect in a robbery, kidnapping, and murder. (19) The video contained an interrogation and subsequent admission to the alleged crimes by the defendant. (20) That video was broadcast the night of the interrogation, then for two subsequent days, with a peak viewership of 53,000 people during the middle day of the broadcast. (21) The trial court refused the defendant's motion to change venue. (22) The Supreme Court held that the pervasive broadcasting of the defendant's confession before trial was a denial of due process. (23) The Court held that when the community is affected by such a highly-publicized confession, no fair trial can be conducted in that venue. (24)

The first leading Supreme Court case to consider cameras in the courtroom was Estes v. Texas. (25) The Estes trial was a macrocosm of the Rideau problem of broadcasting preliminary proceedings pervasively throughout the population of the trial venue. (26) Several pre-trial sessions involved twelve or more cameramen, wires and cables cluttering the courtroom floor, and many microphones strewn about the room, including near the jury. (27) During trial, "[a] booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room." (28) Additionally, the trial judge permitted only some parts of the trial to be broadcast live, which ultimately resulted in broadcasts of sound bites and video clips with reporter commentary. (29) The Court in Estes held that the Anglo-American court system's ability to provide fair trials depends on the trial atmosphere, which cameras disturb to the point of denaturing the proceedings. (30) Finding such a probability of prejudice resulting from cameras in the courtroom, the Court held that parties do not need to demonstrate prejudice to make a due process argument against broadcasting. (31)

Estes enumerated several concerns over the probable, negative effects of cameras in the courtroom: the impact of televised newscasts on jurors; (32) the impact on witnesses when they discover they will be heard by a larger audience than those in the courtroom; (33) the increase in workload on the judge in supervising telecasting; (34) and the numerous effects on defendants, such as distracted and less-effective counsel and public prejudice. (35) Despite finding myriad negative effects of cameras, the Court remained open to changing the ban on cameras if technology and different tactics could prevent the aforementioned effects in the future. (36)

In Chandler v. Florida (37) the Supreme Court reversed course from Estes, "hold[ing] that the Constitution does not prohibit a state from experimenting with the program authorized by revised Canon 3A(7)." (38) In Chandler, the Court re-opened the issue of allowing cameras in courtrooms by holding that Estes, a plurality opinion, did not bar "photographic, radio, and television coverage in all cases and under all circumstances." (39) The Court then attacked the Court in Estes' identification of the dangerous effects of cameras as lacking empirical support. (40) The Court found the existence of psychological impacts resulting from cameras were still debated by experts in the field and could not be readily proven for a total ban. (41) Since cameras were, at the time, run on an experimental basis and those experiments included guidelines to protect from possible bad effects, the potential risk of prejudice to the legal system did not warrant a ban. (42)

B. Famous Shortfall of Cameras in the Courtroom: the Bruno Richard Hauptmann Trial

The first major trial to include televised broadcasts was State v. Hauptmann. (43) In 1935, Hauptmann was charged and tried for the kidnapping and murder of Charles Lindbergh's son. (44) Conflicting reports exist regarding the overwhelming quality of cameras' presence in the Hauptmann trial, but many sources agree that the press saturated the proceedings. (45) Reports do agree on the overwhelming presence of journalists covering the trial, with estimates of 700 reporters and 121 to 129 photographers inside and outside the courtroom. (46) Ultimately, as many as 275 spectators and 135 journalists were present inside the courtroom. (47) Lights were added to the courtroom to assist both the still-and motion-cameras, raising the ambient temperature in the courtroom. (48)

While one report claimed Judge Thomas W. Trenchard tightly restricted photography and newsreel camera placement, (49) another explained that Sheriff John Curtiss permitted newsreel companies to record the trial if the cameras were hidden and no newsreels were played before the end of the trial. (50) The cameras, however, were obvious, and one newsreel was released prior to the trial's end. (51) Hauptmann was found guilty and appealed his conviction, claiming, in part, that the media's presence denied him a fair trial. (52) The New Jersey Court of Appeals rejected the argument, and held that the court was correct to afford reasonable access to the media, and that the judge's regulation of the media was adequate and not reversible. (53) Although the New Jersey Court of Appeals did not react to the allegations of media disturbance during the Hauptmann trial, some credit the case with sparking the development of American Bar Association Canons. (54)

C. ABA Canon Evolutions: 1937, 1952, 1982, and Removal of Camera Canons

Although the American Bar Association ("ABA") originally contemplated the issue of cameras in the courtroom in 1924, the first relevant canons were created in 1937 in response to Hauptmann. (55) ABA Canon 35 banned photographs and broadcasting from the courtroom, citing the propensity to cause public misconceptions and detract from the trial's proceedings. (56) Most states adopted ABA Canon 35 after its promulgation. (57) ABA Canon 35 went unchanged until 1952, when it was "amended to prohibit television cameras. " (58)

After these changes, ABA Canon 35 underwent a slow softening process beginning in 1972, when ABA reworked its Canons, and transformed Canon 35 to Canon 3A(7). (59) The transformation included a new exception permitting still and video recording, subject to various rules, for educational purposes in learning institutions. (60) In 1982, the Canon language saw yet another retreat from a total ban, "recommend[ing] allowing camera usage in courtrooms for news purposes at the discretion and under the supervision of the state's highest appellate court." (61) The ABA finally removed Canon 3A(7) from the books in 1989, holding that media coverage fell outside the ABA Canon's purview and was instead a question to be decided by local rules in the various jurisdictions. (62)

D. District of Massachusetts vs. Eastern/Southern District of New York Local Rules Split

As forecasted by ABA Canon 3A(7)'s removal, local administrative rules of court and interpreting case law now regulate camera use in trial courts. (63) New York and Massachusetts both have local rules, and both have case law definitively interpreting those local rules. (64)

1. Massachusetts's Local Rule 83.3 and Case Law Interpretation Thereof

In Massachusetts, Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts has regulated still and video recording and broadcasting since September 1, 1990. (65) The rule bans all types of video and electronic recording from several floors of the courthouses in the District of Massachusetts. (66) There are only two relevant exceptions to the blanket ban. First, Local Rule 83.3(b) permits court reporters to use recording technologies "for the sole purpose of discharging their official duties." (67) Second, Local Rule 83.3(c) permits the use of electronic recording to preserve evidence, keep a record, and for "the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings." (68)

Local Rule 83.3's application was most recently contested in In re Sony BMG Music Entertainment et al., (69) in April 2009. In Sony BMG, the First Circuit considered whether "a federal district judge ha[s] the authority to permit gavel-to-gavel webcasting of a hearing in a civil case?" (70) The question was prompted by a defendant's motion to permit the Courtroom View Network to record and broadcast on the internet ("webcast") a nonevidentiary motions hearing in the United States District Court for the District of Massachusetts; the District Court previously granted the motion. (71) Appellants directly argued "Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts prohibited webcasts of civil proceedings." (72)

In Sony BMG, the First Circuit reviewed the issue of using an abuse of discretion standard, with ""a special degree of deference.'" (73) The court held the District Court judge's interpretation of Local Rule 83.3 created "a discretionary catchall exception," which ran contrary to the rule's apparent blanket prohibition against broadcasting trial proceedings. (74)

In deciphering Rule 83.3, the court in Sony BMG referred to the Judicial Conference of the United States' Guide to Judiciary Policies and Procedures and the First Circuit Judicial Council, both of which indicated that cameras should not be permitted in courtrooms, nor should broadcasting be allowed. (75) While Sony BMG considered that new technology may have removed some of the old fears regarding cameras in the courtroom, the court decided that Rule 83.3 was controlling; therefore, deference to the rule required a continued ban on courtroom broadcasting. (76)

2. New York's Local Civil Rule 1.8 and Case Law Interpretation Thereof

The United States District Courts, Eastern and Southern Districts of New York, share a common Local Civil Rule 1.8, which governs still and video cameras, as well as broadcasting. (77) Like the District of Massachusetts' Local Rule 83.3, the Eastern and Southern Districts of New York Local Civil Rule 1.8 provides for a blanket ban of broadcasting or recording. (78) However, unlike Massachusetts Local Rule 83.3, New York Local Civil Rule 1.8 permits a judge to give written permission to use broadcasting or recording equipment. (79)

Local Civil Rule 1.8 was further clarified in 2008, in the case of In re Zyprexa Products Liability Litigation. (80) In Zyprexa, the court confirmed "Rule 1.8, formerly Local Rule 7, has been interpreted to commit the decision to allow or deny camera access to the courtroom to the judge's discretion." (81) Unlike the court in Sony BMG, which used the Judicial Conference to bolster its holding that cameras should not be permitted in the courtroom, the Zyprexa court disposed of the Judicial Conference's opposition to cameras as non-binding. (82) Zyprexa noted the importance of "opening the courts to the public" using video broadcasts, especially where many people across the United States have a stake in the outcome. (83)

E. Federal Legislative Activity

Congress has considered legislating rules to govern cameras in the courtroom since as early as 2007. (84) The United States Senate originally filed the Sunshine in the Courtroom Act ("Sunshine Act") in 2007, considered it again in 2008, and finally reintroduced it in 2009; the Act's sponsor was Senator Charles Grassley, an Iowa Republican. (85) Section 2(b)(1)(A) of the Sunshine Act proposes to confer discretionary authority to permit courtroom recording and broadcasting upon the presiding judge in the federal courts of appeals. (86) Section 2(b)(2)(A) confers similar discretion upon federal district court judges presiding over a case, with several limiting provisions. (87)

The Sunshine Act requires judges to make witnesses aware of their right to have their appearance and voice disguised upon request. (88) Under the Act, the presiding judge may never permit recording or broadcasting of jurors or potential jurors during jury selection. (89) The Sunshine Act also confers discretion upon presiding judges to use voice or visual disguise if failing to do so would threaten the witness, the court, current or future law enforcement activity, or "the interest of justice." (90) Finally, the Sunshine Act's provisions for district courts differ from its provisions for appellate courts in intended timeframe: the district court provisions would be subject to a three-year sunset provision, from the date of the Act's enactment. (91)

F. Three Regulatory Systems with Three Different Purposes

The evolution of cameras in the courtroom has caused different organizations to create vastly different rules. The American Bar Association first banned all recording or broadcasting, then permitted limited amounts, then repealed its Canon in favor of local rules. (92) The District of Massachusetts never permits recording or broadcasting, except during ceremonial events. (93) The Southern and Eastern Districts of New York confer discretion upon the presiding judges without any guidance. (94) Proposed legislation, which would potentially preempt local rules, will confer jurisdiction upon the presiding judges but also provides mandatory guidelines, safety considerations, and powers to disguise witnesses. (95) The result is three significantly different approaches to the same problem.

PART III. CONCERNS DERIVED FROM CAMERA PRESENCE IN THE COURTROOM

Thus far, this Note has identified three different approaches to address cameras in the courtroom and offered three cases considering the use of cameras in the courtroom: Estes, Chandler, and the Hauptmann murder trial. This Note now turns to discuss which of the three models best addresses the issues posed by courtroom broadcasting and recording today, and will that approach continue to work as technology evolves?

A. Physical Imposition of Broadcasting or Recording Equipment

To determine the best approach, it is critical to first identify the issues posed by allowing cameras in the courtroom. A good starting point is Chandler, which addresses the Court in Estes' finding of "general psychological prejudice" as an "adverse psychological impact on participants in the trial," caused by the mere presence of cameras in the courtroom. (96) Chandler distinguishes between "general psychological prejudice," an effect feared by the concurring justices in Estes, and "the more particularized problem of prejudicial impact." (97) Chandler found a lack of proof that the mere presence of broadcasting/recording equipment causes particularized prejudicial impact. (98) Chandler suggests the general psychological impacts identified in Estes have been lessened by technological improvements such as the reduced size of broadcasting and recording equipment and the decreased number of people now necessary to run this type of equipment. (99)

The size of camera equipment has certainly been reduced. (100) The 1937 Hauptmann trial involved over one hundred reporters, (101) the installation of bright-lights were to assist in filming, (102) and large, unhidden cameras were placed throughout the courtroom. (103) The 1962 Estes case also suffered from large equipment, many cables, changed lighting, and many cameramen. (104) In 1981, the Court in Chandler discussed how technological developments reduced the imposing, cumbersome nature of camera equipment, which lessened the equipment's impact on the trial process. (105) Today, concerns have turned from the imposition of cumbersome equipment to cell phones featuring cameras and related broadcasting technologies. (106) Recent trends in the law suggest the imposing quality of cameras due to their physical size in the courtroom has diminished significantly over time. (107)

B. Psychological Impacts from Recording or Broadcasting Equipment, Size of the Equipment Notwithstanding

The psychological impact of recording and broadcasting courtroom proceedings is hotly debated. (108) Debate centers on the effect cameras have on the judge, the jury, the witnesses, and to a lesser extent, the attorneys. This section evaluates the arguments related to the potential psychological effects that cameras have on these parties.

1. Potential Effect on Judges

Judges' behavior in televised trials has often been monitored and commented upon. (109) While judges have argued that cameras do not affect them, (110) anecdotal evidence suggests otherwise. One argument concerns elected judges: if the judge can be immediately observed by the electorate, she may focus on her career aspirations as opposed to the merits and intricacies of the case at hand. (111) Still others argue that even if judges are affected by cameras, their rulings remain consistent with rulings made without camera coverage. (112)

One of the more recent, notorious instances of affected judicial behavior was Judge Larry Seidlin, a Broward Circuit Court judge handling a case concerning former model Anna Nicole Smith's burial site. (113) Judge Seidlin, long known for unorthodox behavior in the courtroom, captured national interest in his handling of the case. (114) While on the bench during hearings, Judge Seidlin broke with accepted practices and took telephone calls from his wife, discussed his morning exercise routine, and told an attorney she was beautiful. (115) Judge Seidlin also allowed testimony regarding the custody and paternity of Smith's child, which was irrelevant to the issue before Judge Seidlin. (116) Judge Seidlin's behavior sparked debate that the camera does have an effect on judges' behavior. (117)

2. Potential Effect on Jurors

A number of legal scholars and commentators have carefully considered the effects on jurors. (118) At one end of the spectrum, some commentators fear that jurors will be impacted by the placement of simple cords and equipment too near the jury box. (119) At the other end, some argue that mere camera placement can help prevent photographs of the jury, thereby removing jurors from public scrutiny. (120)

A more modern jury issue is the return of juror coercion and intimidation due to cell phone technology. (121) Traditionally, this concern arose from filming and reporting on jurors during a trial. (122) In these instances, jurors were harangued by the media and public for their statements or their decisions. (123) More recently, the prevalent concern has been that jurors may now fear that a defendant's associates will use a camera phone in the courtroom to photograph them. Those photos could then be disseminated or otherwise used to identify jurors and avenge a conviction. (124) Although the fear of retribution can be couched in terms of different technologies--cameras versus cell phones--the fact remains that this fear has persisted for over seventy years. (125)

Another fear is that cameras can be a distraction to jurors. (126) one extreme example is ex-juror Francine Florio-Bunten, who served as a juror on the O.J. Simpson murder trial for over four months. (127) Although sequestered, Florio-Bunten used the cameras' microphones to communicate with her husband. (128) Florio-Bunten and her husband had a code wherein she would greet her husband each day by coughing at 3:00 p.m. so the television cameras could capture it. (129) While such behavior does not affect juror deliberations per se, for the Simpson case, it meant that at least one juror was distracted by using the cameras for her own agenda--not entirely dissimilar from Judge Seidlin's possible use of cameras to further his own career. (130)

3. Cameras Acting as the 'Thirteenth Juror' in Deliberations

The presence of the public as a 'thirteenth juror' can have a substantial effect on the jury. Some studies suggest that judges believe certain television reports aid the pursuit of justice. (131) Others fear the public believes it is just as capable, if not more, than the jury to decide cases; a sentiment that could potentially affect the jury. (132) If the jury is aware of the public's disposition in a case, the jury may then try to decide in accordance with public opinion. (133)

Because the primary focus of televised broadcasts is to generate a profit, a further concern is that impartiality will be a peripheral goal. (134) Some argue the fear in Estes that only notorious trials would be televised to increase ratings has been preempted by the advent of public and community cable television, which broadcast events without commercial consideration. (135) More popular television shows decidedly have a commercial interest. (136) Television networks, such as Court TV, deploy their assets to selected trials and feed live or taped video to an editorial staff, which adds voiceovers and commentary after editing the videos. (137)

The risk remains, even if the video is not edited or commented on, that the public has access to information that the jurors would not--or should not--have access. (138) The public, viewing snippets of a trial, can elect to tune-in and watch only pieces of the already edited snippets of court proceedings. (139) Other videos and shows about cases are likely inadmissible and may be created to stir public sentiment. (140) Critics such as Paul Thaler raise questions about the difference between the public's sentiment and a jury's deliberations as constrained by rules of evidence and procedure. (141) The implication of Thaler's argument is that the court and public perceptions can concentrate on two different sets of information, thus they can arrive at two different results. (142) Therefore, if one group were to see the other's resulting disposition towards the case, the crossover could taint the decision-making process. (143)

4. Effect on the Evidence and Witnesses

other studies suggest witnesses are subjected to positive influences from the presence of cameras in the courtroom. (144) The effect could be as simple as a witness' fear that a member of the public might know the truth about a matter and might come forward if the witness lies. (145) The effect might be more psychological as it involves both witness performance and juror reaction. A 1990 University of Minnesota study placed people role playing as jurors and witnesses in situations with different levels of media presence to observe the affects of increased camera presence on the parties. (146) The result was only increased nervousness on the witnesses' part, as none made any additional mistakes during their testimony. (147) Jurors' perceptions of the witnesses were also not affected. (148) Many tests have been conducted in both actual courts and mock-court settings, analyzing the level of distraction caused by cameras, and the effect of cameras on cognitive abilities. (149) Nonetheless, Anton Valukas, William Von Hoene, Jr., and Liza Murphy of the Chicago criminal defense firm Jenner & Block, posit "few, if any, of these studies can be considered valid." (150)

PART IV. EVALUATION OF THE LOCAL RULES & PROPOSED LEGISLATION'S ABILITY TO ADDRESS CONCERNS

District of Massachusetts Local Rule 83.3's blanket ban on cameras in the courtroom is one comprehensive approach to reducing the effect cameras have on those inside the courtroom. However, the First Circuit in Sony BMG held that technology has removed many of the old fears regarding the imposition of cameras. (151) A ban on cameras in the courtroom may stop the public from tuning in and seeing selected portions of the trial as aired on television, but such a ban does not address the issue of the public deciding cases based on television shows such as ABC's Prime Time Live, which uses photographs and other materials to convey emotionally charged material to the public. (152) Furthermore, jurors now fear broadcasting from cell phone cameras and other devices, because a ban on courtroom cameras may still fail to resolve the aforementioned concerns. (153) Thus, while a ban on courtroom cameras may remedy the prejudices faced by witnesses, such a resolution would not extend to jurors.

The Eastern and Southern Districts of New York Local Civil Rule 1.8 confers discretion on judges to permit broadcasting and recording equipment. (154) However, no guidelines exist within the statute for judges to conform with; no standards exist for judges in those districts. (155) Some anecdotal evidence supports the theory that judges have the ability to assess the effects of cameras in their courtrooms. (156) The danger in such a situation is: what if the judge is also affected by the cameras? Local Civil Rule 1.8 does not provide criteria or grounds for appeal for parties appealing based on the camera's effect on the judge. (157) Judges who enjoy the spotlight may prolong hearings, possibly to the detriment of one or more parties to the case. (158)

The current form of the Sunshine Act aims to achieve uniformity among the federal courts and provides specific protections to concerned parties. (159) Section 2(b)(2)(A)(iii) explicitly bans cameras where there is a violation of due process and does not permit cameras "until the Judicial Conference of the United States promulgates mandatory guidelines...." (160) This approach is beneficial, as the judge has discretion subject to restrictions, which permits experimentation, and allows for potential positive effects of cameras, while still guaranteeing integrity of the trial process. Such a statutory approach also provides parties with a statutory basis for appeal.

While the Sunshine Act stands to benefit courtroom proceedings, one must also recognize that this Act cannot and, or currently would not, address all issues related to the effect of cameras on the judicial system. Even the Sunshine Act fails to address jurors who come into contact with pre-trial publicity; it also fails to completely counter the argument that jurors fear retribution from non-credentialed broadcasts via cellular telephones. (161) None of the three above-described approaches addresses all potential outside influences on the jury.

PART V. CONCLUSION

The introduction and evolution of cameras in the courtroom has undergone a long history and garnered much notoriety. The technology debate has moved from concerns over bright bulbs and cumbersome, intrusive machinery to the problem of non-journalists snapping photographs with cellular telephone cameras. Debate rages on regarding the effect of cameras on judges, jurors, and witnesses. The split between the local rules of the District of Massachusetts and the Eastern and Southern Districts of New York reflects differences in tolerance of cameras, but neither rule addresses every issue. The proposed Sunshine Act would confer judicial discretion yet constrain judges with rules protecting jurors and witnesses. Compared to the District of Massachusetts' and the Eastern and Southern Districts of New York's approaches to regulating courtroom media, the Sunshine Act permits the benefits of courtroom media while providing the most in-depth level of protection through its itemized safeguards. Notwithstanding the Sunshine Act's attempt at comprehensively regulating courtroom media, evolving technology and remaining effects on juries suggest that even the most carefully planned rules and regulations will meet challenges that they cannot overcome.

(1) See generally Anton R. Valukas, William A. Von Hoene, Jr. & Liza M. Murphy, Cameras in the Courtroom: An Overview, 13 Comm. Law. 1 (Fall 1995) (summarizing nature of debate regarding cameras in courtrooms since 1935). Debate exists on the state-level in Massachusetts as well: while the current supreme Judicial Court rule permits one television camera and one still camera, the proposed rule would permit a third camera for internet broadcasting purposes. Compare Mass. S.J.C. Rule 1:19 (proposed Nov. 29, 2010), available at http://www.mass.gov/courts/sjc/docs/Rules/sjc-r119-proposed-changes-012811.pdf, with Mass. S.J.C. Rule 1:19 (Jan. 1, 2010), available at http://massreports.com/courtrules/ sjcrules.aspx#Rule1:19.

(2) Ruth A. Strickland & Richter H. Moore, Jr., Cameras in State Courts: A Historical Perspective, 78 JUDICATURE 128, 130 (1994) (explaining overwhelming presence of cameras in Hauptmann courtroom).

(3) Christina Schmucker, Picture This: DuPage County Court Bans Camera Phones, DCBA Brief: The Journal of the DuPage County Bar Association, J. DuPage County B. Ass'N, Dec. 2004, at 16 (identifying current fear of retribution against jurors by allies of convicts).

(4) See Valukas et al., supra note 1, at *1-*18 (outlining arguments for and against allowing cameras in courtroom).

(5) Compare D. Mass. LR 83.3 (prohibiting camera use in any proceeding unless specific court order permits it), with E.D.N.Y. R. 1.8 (conferring judges with discretion to allow cameras in civil proceedings).

(6) D. Mass. LR 83.3, available at http://www.mad.uscourts.gov/general/pdl/combined01.pdf (banning cameras in any proceeding unless specific court order permits them).

(7) E.D.N.Y. R. 1.8 (conferring discretion upon judges to decide to allow cameras in civil proceedings).

(8) Sunshine in the Courtroom Act of 2008, S. 352, 110th Cong. (2008) [hereinafter 2008 Sunshine Act] (conferring discretion upon United States District Court judges to allow cameras in any proceeding). The Sunshine Act was reintroduced on March 19, 2009 and reported in the Senate on April 29, 2010. Sunshine in the Courtroom Act of 2009, S. 657, 111th Cong. (2010).

(9) See infra Part II(A) (explaining evolution of Supreme Court jurisprudence regarding courtroom cameras).

(10) See infra Part II(B) (discussing Hauptmann trial as example of dangers of courtroom media).

(11) See infra Part II(C).

(12) See infra Part II(D) (identifying local rule split between District of Massachusetts and Eastern/Southern Districts of New York).

(13) See infra Part II(E) (discussing recent federal legislative efforts to promulgate rule giving united States District Court judges discretion).

(14) See infra Part III (analyzing current arguments for and against allowing cameras in courtrooms).

(15) See infra Part IV (proposing rules to meet judicial and practical concerns and considerations).

(16) 373 U.S. 723, 726-27 (1963) (holding televising defendant's confession to crime without changing trial venue violated Due Process Clause).

(17) State v. Hauptmann, 180 A. 809 (N.J. 1935) (denying appellate relief after trial and conviction by jury).

(18) People v. Simpson, BA 097211 (Cal. Super. Ct. 1995).

(19) See Rideau, 373 U.S. at 724 (detailing facts of case).

(20) Id.

(21) Rideau v. Louisiana, 373 U.S. 723, 724 (1964).

(22) Id. at 724.

(23) Id.

(24) Id.
 For anyone who has ever watched television the conclusion cannot be
 avoided that this spectacle, to the tens of thousands of people who
 saw and heard it, in a very real sense was Rideau's trial-at which
 he pleaded guilty to murder. Any subsequent court proceedings in a
 community so pervasively exposed to such a spectacle could be but a
 hollow formality.


Id.

(25) 3 81 U.S. 532 (1965).

(26) See id. at 535-36 (describing radio and news publication of initial trial proceedings).

(27) Id. at 536.

(28) Id. at 537.

(29) Id.

(30) Estes v. Texas, 381 U.S. 532, 540-41 (1965). The Court reasoned:
 Court proceedings are held for the solemn purpose of endeavoring to
 ascertain the truth which is the sine qua non of a fair trial....
 We have always held that the atmosphere essential to the
 preservation of a fair trial-the most fundamental of all
 freedoms-must be maintained at all costs.


Id. at 540.

(31) 381 U.S. at 542-43 (rejecting requirement that parties demonstrate "identifiable" prejudice to make due process argument against cameras). The Court in Estes explains: "at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process." Id.

(32) Id. at 545 (explaining community interest from pre-trial news coverage heightens likelihood of prejudice). The Court notes that if the public is watching jurors and the jurors are aware of public opinion, pressure to side with the public can become intense and "have a direct bearing on his vote as to guilt or innocence." Id.

(33) Id. at 547 (suggesting likely effects large audiences would have on witnesses). The Court suggests witnesses who are aware of a large audience might be prone to "overstatement," decreased accuracy, increased dramatization, and might withhold information due to embarrassment or intimidation. Id.

(34) Id. at 548.

(35) Id. at 549.

(36) Estes v. Texas, 381 U.S. 532, 540 (1965) ("When the advances in these arts permit reporting ... by television without their present hazards to a fair trial we will have another case."); see also Marjorie Cohn & David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice 20 (McFarland & Co., Inc. 1998) (discussing Estes Court's openness to lifting ban after camera technology further develops).

(37) 449 U.S. 560 (1981).

(38) Id. at 583.

(39) Id. at 573. The Court found that Justice Harlan's opinion is what lends the crucial vote on the question of banning the rule, and Justice Harlan's concurrence contained enough reservations to prevent the Court from announcing a "per se rule." Id. at 574 n.8 (citation omitted).

(40) Id. at 576 n.11 ("[T]here is no unimpeachable empirical support for the thesis that the presence of the electronic media, ipso facto, interferes with trial proceedings.").

(41) Id. at 578 (indicating amici briefs conflicted on presence of psychological factors as identified by Estes).

(42) Chandler v. Florida, 449 U.S. 560, 577-78 (1981) (identifying experimental status and Florida guidelines to ensure fair trials with broadcasting). The Court explained Florida's guidelines that require defendant's objections to broadcast coverage to be "heard and considered on the record by the trial court." Id. at 577 (citing Green v. State, 377 So. 2d 193, 201 (Fla. Dist. Ct. App. 1979)).

(43) 180 A. 809 (N.J. 1935).

(44) Strickland & Moore, supra note 2, at 130.

(45) See id. at 130; Susanna Barber, News Cameras in the Courtroom: A Free Press-Fair Trial Debate 3 (Alex Publishing 1987) (identifying conflicting recollections of cameras' effect in Hauptmann trial). Barber identifies conflicting arguments regarding the effect of cameras. Id. One report was that "'photographers clambered on counsel's table and shoved their flashbulbs into the faces of witnesses,'" while another report blamed the public fanfare, rather than the photographers present in the courtroom. Id. (citing Richard B. Kielbowicz, The Story Behind the Adoption of the Ban on Courtroom Cameras, 68 Judicature 14 (1979-80)).

(46) Barber, supra note 45, at 4; Strickland & Moore, supra note 2, at 130.

(47) Cohn & Dow, supra note 36, at 15. As depicted by photographs taken during the Hauptmann trial, the courtroom was packed with reporters. See The Trial of Hauptmann, Iconic Photos (May 21, 2009, 9:26 AM), http://wp.me/pvhXv-9v [hereinafter Newspaper Cover] (depicting Hauptmann Sobs and Denies His Guilt, The Sun, Feb. 21, 1935, at 1). The video cameras used inside the courtroom stood taller than witnesses, such as Anne Morrow Lindbergh, who walked past a camera that towered over

and was surrounded by people. Anne Morrow Lindbergh About to Testify at Hauptmann Trial, in Flemington, NJ, Yale University Manuscripts & Archives, Digital Images Database, http://images.library.yale.edu/madid/ (search images "3268"; then follow "3268" hyperlink) (exhibiting photograph taken of Anne Morrow Lindbergh, near video camera, before testifying in Hauptmann trial) [hereinafter A.M.L. Photo].

(48) Cohn & Dow, supra note 36, at 15 (citing Joyce Milton, Loss of Eden 300 (HarperCollins 1993)). While some photographs cut out the bright light bulbs from photographs of the courtroom scene, the effect of the lights can be seen when viewing those close to the judge's bench and the witness stand. See Newspaper Cover, supra note 47. Viewing what appear to be examples of the same photograph, without cropping out the lighting, demonstrates the intensity of the courtroom lighting. Bruno Hauptmann Hearing Guilty Verdict, Corbis Images, http://www.corbisimages.com (search "U725729INP").

(49) Barber, supra note 45, at 3 (noting Judge Trenchard restricted photographic and video opportunities and camera placement).

(50) Cohn & Dow, supra note 36, at 15.

(51) Id. at 15-16.

(52) State v. Hauptmann, 180 A. 809, 827 (N.J. 1935).

(53) Strickland & Moore, supra note 2, at 130 (citing Hauptmann, 180 A. at 827).

(54) Id. ("Although the New Jersey Court of Appeals saw no major problem with the conduct of the Hauptmann trial, the ABA reconsidered the role of cameras in the courtroom due to the reported carnival-like atmosphere of the Hauptmann trial.").

(55) Cohn & Dow, supra note 36, at 17 (describing formation of ABA special committee and promulgation of Canon 35); Strickland & Moore, supra note 2, at 130 (suggesting 1920s trials sparked ABA's interest in media, but Hauptmann caused promulgation of new canon). Cohn and Dow note the special committee convened "to conduct an exhaustive analysis of press coverage and other facets of the Lindbergh case." Cohn & Dow, supra note 36, at 17.

(56) Cohn & Dow, supra note 36, at 17.
 Proceedings in court should be conducted with fitting dignity and
 decorum. The taking of photographs in the courtroom during sessions
 of the court or recesses between sessions, and the broadcasting of
 court proceedings are calculated to detract from the essential
 dignity of the proceedings, degrade the court and create
 misconceptions with respect thereto in the mind of the public and
 should not be permitted.


Id. (quoting Canon 35).

(57) Strickland & Moore, supra note 2, at 130.

(58) Cohn & Dow, supra note 36, at 17 (indicating ABA's 1952 prohibition of television cameras in courtrooms); Valukas et al., supra note 1, at *18 (explaining 1952 "forbid[dance of] television coverage in the courtroom as well as photographic and broadcast coverage"). Strickland and Moore note that most states accepted the amendment to Canon 35, although sometimes in altered form. Strickland & Moore, supra note 2, at 130.

(59) See infra notes 60-62 and accompanying text (describing evolution of ABA Canons regarding courtroom cameras).

(60) Valukas et al., supra note 1, at *18 (citing Strickland & Moore, supra note 2, at 130-32). The 1972 version of Canon 3A(7) reads: "A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions." Model Code of Judicial Conduct Canon 3A(7) (1972).

(61) Id. (describing 1982 updates to Canon 3(7)).

(62) Valukas et al., supra note 1, at *18 (citing Standing Committee on Ethics and Professional Responsibility, American Bar Ass'n, Final Draft of Recommended Revisions to ABA Code of Judicial Conduct (1989)). "The canon subsequently was removed from the ABA Code of Judicial Conduct as the result of the ABA's determination that the topic of electronic media coverage in courtrooms was not directly related to judicial ethics and should be addressed by administrative rules adopted within specific jurisdictions." Id.

(63) See supra note 5 and accompanying text (suggesting comparison of D. Mass. LR 83.3 with E.D.N.Y. and S.D.N.Y. Local Civil Rule 1.8).

(64) See supra note 5 and accompanying text (suggesting comparison of two federal districts' local rules on cameras).

(65) D. Mass. LR 83.3, available at http://www.mad.uscourts.gov/general/pdf/combined01.pdf.

(66) See Local Rule 83.3(a) indicates, in relevant part:
 Recording and Broadcasting Prohibited. Except as specifically
 provided in these rules or by order of the court, no person shall
 take any photograph, make any recording, or make any broadcast by
 radio, television, or other means, in the course of or in
 connection with any proceedings in this court, on any floor of any
 building on which proceedings of this court are or, in the regular
 course of the business of the court, may be held. This prohibition
 shall apply specifically but shall not be limited to the second,
 third, ninth, eleventh, twelfth, thirteenth, fifteenth, sixteenth,
 eighteenth, nineteenth and twentieth floors of the John W.
 McCormack Post Office and Courthouse Building in Boston and the
 fifth floor of the Courthouse Building in Springfield.


Id.

(67) D. Mass. LR 83.3(b), available at http://www.mad.uscourts.gov/general/pdf/ combined01.pdf. Rule 83.3(b) provides: "Voice recordings by Court Reporters. Official court reporters are not prohibited by section (a) from making voice recordings for the sole purpose of discharging their official duties. No recording made for that purpose shall be used for any other purpose by any person."

(68) D. Mass LR 83.3(c), available at http://www.mad.uscourts.gov/general/pdf/ combined01.pdf. Rule 83.3(c) provides: "The court may permit (1) the use of electronic or photographic means for the preservation of evidence or the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings." Id.

(69) 564 F.3d 1 (1st Cir. 2009).

(70) Id. at 2 (identifying appellate issue).

(71) Id. (reciting procedural history relevant to requests to film civil hearings); see also Capitol Records, Inc. v. Alaujan, 593 F. Supp. 2d 319, 324-25 (D. Mass. 2009). Capitol Records is the antecedent district court proceeding sparking the Sony BMG appeal. Sony BMG, 564 F.3d at 2.

(72) Sony BMG, 564 F.3d at 3 (discussing petitioner's appellate argument).

(73) Id. at 5 (quoting Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir. 2004)) (explaining standard review with added deference for cases involving courtroom management). The court in Sony BMG demonstrated a reluctance to interfere in the administration of proceedings in the lower courts; consequently, it incorporated extra deference into its analysis. 564 F.3d at 5.

(74) In re Song BMG Music Entertainment, 564 F.3d 1, 4-5 (1st Cir. 2009) (describing and characterizing district court judge's interpretation of D. Mass. LR 83.3 as erroneous). "Here, we think that the limits of the district judge's discretion were exceeded; her interpretation of Local

Rule 83.3 is unprecedented and, in our view, palpably incorrect." Id. at 5.

(75) Sony BMG, 564 F.3d at 7 (citing Guide to Judiciary Policies and Procedures of the Judicial Conference of the United States, Vol. 1, Ch. 3, Pt. E.3; First Circuit Judicial Council, Resolution of June 1996). The Sony BMG decision has drawn criticism for over-reliance on the non-binding First Circuit Judicial Council materials. See Jordan K. Schwartz, Comment, Federal Civil Practice--Local District Court Rule Does Not Provide Judge Authority to Order "Narrowcast" of Motion Hearing-In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009), 43 SUFFOLK U. L. REV. 787, 794 (2010) (suggesting over-reliance upon non-binding Judicial Conference materials).

(76) See Sony BMG, 564 F.3d at 9 (recognizing technology improvements argument but deferring to controlling Massachusetts Local Rule 83.3).

(77) E.D.N.Y. and S.D.N.Y. Local Civil Rule 1.8, available at http://www.nyed.uscourts.gov/localrules.pdf. Local Civil Rule 1.8 states:
 No one other than court officials engaged in the conduct of court
 business shall bring any camera, transmitter, receiver, portable
 telephone or recording device into any courthouse or its environs
 without written permission of a judge of that court. Environs as
 used in this rule shall include the entire United States Courthouse
 property, including all entrances to and exits from the buildings.


Id. (emphasis added).

(78) Compare supra notes 65-68 and accompanying text (describing District of Massachusetts' approach), with supra note 77 and accompanying text (describing Southern and Eastern Districts of New York approach).

(79) See supra note 77 and text (reciting Local Rule 1.8 of the e.d.n.y./s.d.n.y.).

(80) No. 04-MD-1596 (JBW), 2008 WL 1809659, at *1 (E.D.N.Y. Mar. 4, 2008).

(81) Id. (citing Hamilton v. Accu-Tek, 942 F. Supp. 136, 137 (E.D.N.Y. 1996)).

(82) Compare supra note 75 and accompanying text (explaining court in Sony BMG's use of Judicial Conference findings to support banning cameras from courtrooms), with In re Zyprexa, 2008 WL 1809659, at *1 (declining to follow Judicial Conference recommendations). The court in Zyprexa noted: "[t]he position of the Judicial Conference opposing televised district court proceedings, while entitled to great weight, does not bind federal district courts." Id. (citing Accu-Tek, 942 F. Supp. at 137).

(83) In re Zyprexa, 2008 WL 1809659, at *1.

(84) See Sunshine in the Courtroom Act, S. 352, 110th Cong. (2007), 1 (indicating January 22, 2007 as filing date).

(85) Id.; see also Govtrack.us, S.657: Sunshine in the Courtroom Act of 2009, http://www.govtrack.us/congress/bill.xpd?bill=s111-657 (indicating filing date and sponsorship of Sunshine in the Courtroom Act of 2009).

(86) Sunshine Act, S. 352 [section] 2(b)(1)(A) (conferring discretion to permit courtroom recording/broadcasting upon the presiding judge in appellate courts).

(87) Sunshine Act, S. 352 [section] 2(b)(2)(A) (conferring discretion to permit courtroom recording or broadcasting upon presiding judge in United States District Courts).

(88) Sunshine Act, S. 352 [section] 2(b)(2)(A)(ii) (requiring judges to inform witnesses of their right to request voice/visual disguise during testimony). When properly requested, judges must employ the disguises. Id.

(89) Sunshine Act, S. 352 [section] 2(b)(2)(B) ("The presiding judge shall not permit the photographing, electronic recording, broadcasting, or televising of any juror in a trial proceeding, or of the jury selection process.").

(90) Sunshine Act, S. 352 [section] 2(b)(2)(C). The section reads:

Discretion of the judge--The presiding judge shall have the discretion to obscure the face and voice of an individual, if good cause is shown that the photographing, electronic recording, broadcasting, or televising of the individual would threaten--

(i) the safety of the individual;

(ii) the security of the court;

(iii) the integrity of future or ongoing law enforcement operations; or

(iv) the interest of justice.

Id.

(91) Sunshine Act, S. 352 [section] 2(b)(2)(D) (prescribing sunset provision for Act's rules governing the district courts).

(92) See supra notes 60-62 and accompanying text (summarizing history of ABA's rules regarding courtroom cameras).

(93) See supra notes 66-68 and accompanying text (explaining and quoting D. Mass. LR 83.3).

(94) See supra notes 77-79 and accompanying text (explaining E.D.N.Y. and S.D.N.Y. Local Civil Rule 1.8).

(95) See supra notes 88-90 and accompanying text (explaining Sunshine Act provisions).

(96) Chandler v. Florida, 449 U.S. 560, 575 (1981). The Court in Chandler confirmed the general, sweeping nature of the "general psychological prejudice" concept identified by Estes. Id.; see also Estes, 381 U.S. at 599 (Harlan, J., concurring) (presenting hearing supporting adverse effect of cameras in courtrooms) (quoting Report of Special Bar-Media Conference Comm. on Fair Trial-Free Press, 83 A.B.A. Rep. 645 (1958)). The Court in Chandler also noted the issue of "adverse psychological impact" cannot be proven to exist during all proceedings involving cameras, which contradicted the Estes Court's finding of cameras' generalized and pervasive impact on trial participants. Chandler, 449 U.S. at 575; see also id. at 578 ("[I]t is clear that the general issue of the psychological impact of broadcast coverage upon the participants in a trial, and particularly upon the defendant, is still a subject of sharp debate....").

(97) Chandler, 449 U.S. at 575.

(98) Id. ("If it could be demonstrated that the mere presence of photographic and recording equipment and the knowledge that the event would be broadcast invariably and uniformly affected the conduct of participants so as to impair fundamental fairness ... prohibition of broadcast coverage of trials would be required."); see also id. at 576 n.11 ("[T]here is no unimpeachable empirical support for the thesis that the presence of the electronic media, ipso facto, interferes with trial proceedings.").

(99) Id. at 576.

(100) See supra notes 96-99 and accompanying text; infra note 106 and accompanying text (describing decreasing concerns over size of cameras and refocusing on other media issues).

(101) See supra note 47 and accompanying text (describing presence of journalists at Hauptmann trial).

(102) See supra note 48 and accompanying text (describing additional courtroom alterations used to facilitate recording at Hauptmann trial).

(103) See A.M.L. Photo, supra note 47 (depicting Anne Morrow Lindbergh walking past courtroom camera).

(104) See Chandler v. Florida, 449 U.S. 560, 576 (1981) (describing recording/broadcasting equipment in Estes courtroom); see also Valukas et al., supra note 1, at *18 (describing physical imposition of media in Estes trial).

(105) See supra note 90 and accompanying text (identifying provisions of Sunshine Act that confers judicial discretion regarding camera use in courtrooms).

(106) See, e.g., United States v. Fumo, No. 06-319, slip op. at *58 (E.D.Pa. June 17, 2009) (discussing juror use of cellular telephone to broadcast information using Internet application Twitter); Schmucker, supra note 3, at 16 (discussing broadcasting of information using cellular telephones and resultant psychological effect on juries); Renee Loth, Mistrial by Google, BOSTON GLOBE, Nov. 6, 2009, at A15 (describing importation of media into courtroom via cellular telephones).

(107) See supra notes 96-99, 106 and accompanying text (describing modern decrease in concerns over cameras' imposing quality).

(108) See supra notes 3, 32; infra Section IV(B)(ii) and accompanying text (discussing arguments regarding cameras' effect on jurors); also infra Section IV(B)(i) and accompanying text (discussing arguments regarding cameras' effect on judges).

(109) See generally, COHN & Dow, supra note 36, at 70-71 (addressing Judge Hiller Zobel's discussion of potential media impacts); Ann O'Neill & Kate King, If Anna Nicole Smith Case is a Circus, Judge is Ringmaster, CNN (Feb. 22, 2007), http://www.cnn.com/2007/LAW/02/21/ judge.larry (commenting that judge extended hearing because "he seems to enjoy being on television."). During the Louise Woodward murder trial, Judge Zobel quoted John Adams, saying "the law is 'deaf as an adder to the clamours of the populace.'" COHN & Dow, supra note 36, at 71. Zobel added, "In this country, we do not administer justice by plebiscite." COHN & Dow, supra note 36, at 71.

(110) See COHN & Dow, supra note 36, at 71 (describing Judge Zobel's argument of justice rising above public commentary).

(111) COHN & Dow, supra note 36, at 71-72 (quoting George Gerbner). Gerbner, Dean Emeritus of the Annenberg School for Communication at the University of Pennsylvania, suggests:
 When you enlarge the audience to millions of people, including the
 communities, families, bosses and voters who determine the fate
 beyond the courtroom of most of its participants ... you all of a
 sudden change the stakes from examining the guilt or evidence
 pertaining to that particular case to reflecting on how the rest of
 your life is going to shape up. The election of judges depends on
 how they appear on camera to millions of voters....


Id.

(112) Id. at 70 (quoting Charles Sevilla). "'While it may be the outwardly tyrannical judge will pull in his horns if the camera is there'says Sevilla, 'inwardly, you will still get the same rulings from the tyrant. They'll just be sugar-coated cyanide tablets as opposed to cyanide without the sugar.'" Id.

(113) See O'Neill & King, supra note 109.

(114) Chris Francescani, Exclusive: Judge's Wife: People Say He Should Have His Own TV Show, ABC NEWS (Feb. 22, 2007), http://abcnews.go.com/US/LegalCenter/story?id= 2896934&page=1 ("The judge has garnered almost as much attention as Anna Nicole Smith herself.").

(115) Id.

(116) O'Neill & King, supra note 109. CNN Senior Analyst Jeffrey Toobin commented of Judge Seidlin: "He is letting this thing meander all over creation, mostly because he seems to enjoy being on television." Id.

(117) Id. News outlets speculated that Judge Seidlin was angling for a role on a television show. Francescani, supra note 114. After the Anna Nicole Smith burial matter, Judge Seidlin retired from the bench, intending to focus on family and other opportunities. Judge in Anna Nicole Smith Case Says He'll Retire, CNN, June 19, 2007, http://www.cnn.com/2007/LAW/06/19/judge.larry/ index.html.

(118) See supra notes 3, 32 and accompanying text (discussing potential effects of cameras on jurors as identified by Supreme Court and legal commentators); Section III(B)(ii) and accompanying text (discussing arguments regarding cameras' effects on jurors).

(119) See supra notes 27-31 and accompanying text (identifying equipment itself as affecting critical aspects of trial proceedings).

(120) Brief of the Attorneys General of Ala., et al., as Amici Curiae in Support of Appellee at *2-3 Chandler v. Florida, 449 U.S. 560 (1981), (No. 79-1260), 1980 WL 339558 at *22 [hereinafter Chandler Brief] (suggesting that cameras placement rules can protect jury, removing jurors from public visibility). This protection, the attorneys general argue, reduces possible prejudicial effect on jurors to the same as pretrial publicity and other local news reports. Id. at *22.

(121) See infra notes 122-124 and accompanying text (describing potential effect of cameras and media on juror intimidation).

(122) See Corbis Images, Jury for the Bruno Richard Hauptmann Trial, http://www.corbisimages.com/Enlargement/U289976ACME.html (depicting photograph of jury, seated in jury box, in Hauptmann murder trial); see also Cohn & Dow, supra note 36, at 99 (remarking that Florida, among only a few other states, permits camera coverage of jury selection).

(123) See Cohn & Dow, supra note 36, at 99 (discussing national media attention regarding prospective juror who made passing comment during televised jury selection); see also Schmucker, supra note 3, at 17-18 (citing Nancy J. King, Nameless Justice: The Case for the Routine Use of Anonymous Juries in Criminal Trial, 49 Vand. L. Rev. 123 (1996)) (discussing threats, taunts, phone harassment, and other intimidation after juror's names made public).

(124) Schmucker, supra note 3, at 17 (describing camera phone usage as tool for retribution against jurors). Schmucker cites an interview with Robert K. Kilander, Chief Judge of the Eighteenth Judicial Circuit for DuPage County, Illinois, wherein Judge Kilander explains that the juror retribution fear exists mostly in criminal cases involving gangs. Id. Judge Kilander argues that a loss of juror anonymity makes way for juror retribution and a tainted jury pool. Id.

(125) See generally supra Part II (describing history of debate and regulation of courtroom cameras).

(126) See infra, notes 127-129 and accompanying text (identifying anecdotal evidence of cameras distracting jurors).

(127) Cohn & Dow, supra note 36, at 8.

(128) Id.

(129) Id.

(130) See supra notes 116-117 and accompanying text (discussing Judge Seidlin's possible use of cameras to gain re-election or audition for television show).

(131) Valukas et al., supra note 1, at *20 (citing Court TV study). Court TV conducted a poll and sixty percent of questioned judges found that "the presence of Court TV's cameras and its reporting 'helped convey the events of the trial in a way that contributed to public und erstanding of the legal system.'" Id.

(132) Cohn & Dow, supra note 36, at 87 (describing public's perception of its ability to decide proper outcome).

(133) Schmucker, supra note 3, at 20 (describing effect of public sentiment on jurors).

(134) Paul Thaler, The Watchful Eye: American Justice in the Age of the Television Trial 5 (Praeger Publishers 1994) ("Whether or not viewers will actually learn anything from such programming is questionable and perhaps irrelevant. More to the point is whether the cable network will be able to deliver an audience large enough to sustain itself.").

(135) Chandler Brief, supra note 120, at *16.

(136) See Thaler, supra note 134, at 3 (quoting George Gerbner, Trial by Television: Are We at the Point of No Return?, 63 Judicature 416, 426 (1980)) ("Television presents a coherent world of images and messages serving its own institutional interests. The question is whether the judiciary should be enlisted to add further credibility to media mythology. Plugging courtrooms into the television system can make them appendages of that system.").

(137) Thaler, supra note 134, at 4 (describing Court TV production plan).

(138) See Cohn & Dow, supra note 36, at 87 (explaining jury constrained in terms of what and how it may consider).

(139) Id.

(140) See Thaler, supra note 134, at 5 (describing ABC show Prime Time Live regarding Menendez murder trial). In this instance, ABC took snippets of a witness' testimony, police reports, and segments of a bail hearing to create a show that aired before the trial. Id. at 5-6. Paul Thaler argues that photographs "were selectively pieced together to drive home the point that the brothers were unremorseful and, we may deduce, pathological." Id. at 6. Thaler posits that the show was "clearly emotionally engaging--and manipulative--as powerful images revealed visual connotations that went beyond a prepared script." Id.

(141) See id. at 5 (explaining media outlets tailor coverage of trials, mixing truth and "tabloid styled" trial coverage). Thaler argues "tabloid-styled" television shows use trial footage in reports to show "forceful images" and do not necessarily focus on relevancy when selecting footage. Id.

(142) See supra notes 134-136, 140 and accompanying text (highlighting contrast between courtroom proceedings and courtroom television).

(143) See supra notes 134-136, 140 and accompanying text (highlighting conflict between courtroom proceedings and courtroom television).

(144) See Valukas, infra notes 146-150 and accompanying text (discussing several studies on effects of cameras in courtrooms).

(145) See Cohn & Dow, supra note 36, at 70 (quoting J. Norbert Ehrenfreund). Judge Ehrenfreund believes that cameras facilitate fact finding: "'In my experience,' he says, 'the witnesses, knowing other people outside the courtroom may be watching, are all the more careful about telling the truth because there may be somebody out there who can see if they're lying'--someone who knows the truth, he says." Id.

(146) Valukas et al., supra note 1, at *18 (explaining 1990 University of Minnesota study). The jurors and witnesses performed in three different situations: one with video cameras present ("extended media coverage"), one with a journalist present ("conventional media coverage"), and one without any journalists present. Id. The study found that the quality of testimony and juror's perception of the witness did not suffer with media coverage. Id. at 18, 20.

(147) Id.

(148) Id.

(149) Id. at 18, 20-21 (surveying prominent surveys/studies relating to effects on jurors/witnesses). The studies tend to suggest that most courtroom participants hold a neutral or positive view of cameras while pockets of resistance exist among attorneys and some judges. Id.

(150) Id. at 19 (citing J. Stratton Shartel, Cameras in the Courts: Early Returns Show Few Side Effects, 7 Inside Litig. 1, 24 (1993)) (arguing surveys and studies regarding courtroom cameras are invalid).

(151) See supra notes 65-68 and accompanying text (discussing D. Mass LR 83.3).

(152) See supra notes 136-137, 140 and accompanying text (discussing television production using non-trial information in its reporting).

(153) See Schmucker, supra note 124 (discussing juror's fear in gang cases by affiliates using cell phone cameras to identify and target jurors).

(154) See supra note 77 and accompanying text (describing and quoting E.D.N.Y./S.D.N.Y. Local Civil Rule 1.8).

(155) See supra note 77 and accompanying text (describing E.D.N.Y./S.D.N.Y. Local Civil Rule 1.8).

(156) See COHN & Dow, supra note 36, at 8 (citing Transcript from Hearing, People v. Orenthal James Simpson, No. BAO97211, 980 (Cal. Super. Ct., Nov. 7, 1994)) (describing Judge Lance Ito's self-proclaimed ability to understand cameras' effects in his courtroom).
 [C]oming into this courtroom and taking this witness seat and
 having cameras six feet away is pretty intimidating. You look at
 this array of photographic equipment, that's intimidating. This
 camera pointing at the witness stand here is intimidating.... When
 I listen to counsel argue in this courtroom, I see the nervousness
 in their eyes, especially with counsel that I'm familiar with. I've
 seen counsel come into this courtroom and speak on this case that
 I've known for 20 years who I can tell are nervous and I can tell
 that their performance is affected by this eye here.


Id. Despite seeing this nervousness, Judge Ito never banished cameras in his courtroom during the Simpson trial. Id.

(157) See supra note 77 (quoting E.D.N.Y. and S.D.N.Y. Local Civil Rule 1.8).

(158) See supra notes 116-117 and accompanying text (discussing Judge Seidlin's motivations in prolonging case for career gains).

(159) See supra notes 84-91 and accompanying text (defining and discussing Sunshine Act).

(160) Sunshine in the Courtroom Act, S.352, 110th Cong. [section] 2(b)(2)(B)(iii) (2007).

(161) See supra notes 3, 124 and accompanying text (discussing camera ban's failure to address juror's perceived threat of retribution); see also supra note 32 and accompanying text (discussing camera ban's failure to address jurors' contact with pre-trial (or during-trial) publicity).
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