Big Gains for Court Video in 2010

Both state and federal courts took steps to improve camera access in 2010, amid a growing public consensus that courts should be more open.

In the states, proposed rules in California and Massachusetts would expand courtroom camera access.

For the federal courts, the United States Judicial Conference authorized a pilot study that would allow cameras in all federal district courts.

In addition to these substantive gains for cameras, there is a growing public consensus in favor of courtroom cameras, as evidenced by editorials in the Los Angeles Times and New York Times both arguing strongly in favor of expanded camera access in courts.

California.  In August, 2010, after two years of study, the Judicial Council of California's Bench-Bar-Media Committee issued a comprehensive draft report proposing many recommended rule changes that would improve media access to courtrooms, including improved camera access, and limits on both gag orders and orders sealing records.

The Committee said,

"A free and open society relies, in part, on an independent and accountable judiciary, a fair and just legal system, and a free and robust media...[T]he public’s understanding of the justice system depends in large part on information provided by the media. There are times when the rights to fair trial and free press are at odds with each other. The ultimate duty of our judges is to balance these competing interests and find the best solution for all concerned.”

In an effort to address the competing interests of the bench, bar, and media, the committee proposes recommendations that would increase media access to court proceedings and records, enhance education about the roles and responsibilities of each group, and help resolve inevitable conflicts in an effective manner that protects and promotes the administration of justice.

The Committee recommended "an explicit presumption" that cameras would be allowed in the courtroom. Orders limiting camera access would have to be based on specific findings and would be appealable. A dissenting committee member noted that there was "substantial opposition" to courtroom cameras among the judiciary.

The committee will finish reviewing public comments this month and will present a final version of its recommendations to the Judicial Council in spring 2011.

Massachusetts. The Massachusetts Supreme Judicial Court has proposed changes to Rule 1:19, which governs media coverage of courtroom proceedings.  According to the Court, the proposed rule changes are designed to accommodate the changing nature of both journalists and the ways news is reported while still maintaining order and decorum in the courts.

Among the proposed changes, the definition of news media would include citizen journalists and bloggers who regularly report and publish news or information about matters of public interest. The rules specifically provide for an additional video camera to be permitted for media other than broadcast television and still photographers.

Apparently to prevent judges from having to make ad hoc determinations about whether a particular reporter was entitled to access, the proposed rule provides for journalists to register with the Public Information Officer, although judges could in their discretion also permit unregistered journalists to cover proceedings. The proposed rule also gives journalists the right to use laptops in court if not disruptive.

The Court is accepting public comments until January 28, 2011.

In a separate proceeding also embracing new media and court video, the Supreme Judicial Court specifically determined that Courtroom View Network is a bona fide news media or news gathering organization entitled to webcast court proceedings in Massachusetts, Courtroom View Network v. Justices of the Superior Court, 2010 WL 4942139 (Mass.).

United States Judicial Conference. In September 2010, the United States Judicial Conference approved a new pilot project to evaluate the effect of cameras in federal district courtrooms, and the publication of video in some civil proceedings. The scope of the pilot will be nationwide. Courts wishing to participate will amend their local rules, if necessary. Interim reports on the pilot will be prepared each year.

A prior three-year pilot of cameras in federal court, from 1991 to 1994, involved six district courts and two courts of appeal. The Federal Judicial Center, which evaluated the pilot, reported in 1993 that it was "confident" that the media coverage did not cause a sufficient disruption to warrant a continued prohibition.

In 1994, the Federal Judicial Center issued a supplemental report concluding that there were minimal or no negative effects on jurors or witnesses, and any negative effects could be addressed by judges in individual cases. Based on this report, the Judicial Conference's Committee on Administration and Case Management recommended that camera coverage of federal civil proceedings be allowed. The American Bar Association's Committee on Federal Judicial Improvements strongly supported the recommendation.

Nonetheless, the Judicial Conference disapproved the recommendation, thereby reaffirming its ban on electronic media coverage of federal proceedings.

The ubiquity of cameras now, as compared to 1994, as well as the wealth of experience accumulated during the last 15 years in the many states that do allow cameras in court, suggests that the outcome of the pilot may be different this time.

New York Times. A lead editorial in the New York Times in March argued, "Cameras in the court would allow Americans to see for themselves how an extremely powerful part of their government works...Opponents of televising the lower courts argue — unpersuasively, in our opinion — that cameras could deprive defendants of a fair trial by intimidating witnesses and jurors...Congress should pass a law requiring that the [U.S. Supreme] court’s proceedings be televised."

Los Angeles Times. This week a Los Angeles Times editorial argued, "Monday's broadcast of the U.S. 9th Circuit Court of Appeals' hearing in the Proposition 8 case was a powerfully compelling argument for the camera's indispensability" in helping Americans understand the true nature of the judicial process.  In contast to the "vulgar political kabuki" of commentary leading up to the hearing, court video revealed the truly deliberative, serious, and non-partisan nature of the legal process.

"It is one of the glories of our court system that it continues to permit a principled and civil debate over just such contentious issues, and the American people deserve to see that, as they did Monday," said the Los Angeles Times.

The editorial concluded with a quote that 9th Circuit Judge Alex Kozinski attributed to United States Supreme Court Justice Warren E. Burger: "People in an open society do not demand infallibility from their institutions, but it is difficult from them to accept what they are prohibited from observing."

CVN, the leading provider of court video in the United States, is proud to help improve public access to the judiciary.