[Senate Hearing 106-1029]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1029
ALLOWING CAMERAS AND ELECTRONIC MEDIA IN THE COURTROOM
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 6, 2000
__________
Serial No. J-106-104
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
73-484 WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce Cohen, Minority Chief Counsel
------
Subcommittee on Administrative Oversight and the Courts
CHARLES E. GRASSLEY, Iowa, Chairman
JEFF SESSIONS, Alabama ROBERT G. TORRICELLI, New Jersey
STROM THURMOND, South Carolina RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan CHARLES E. SCHUMER, New York
Kolan Davis, Chief Counsel
Matt Tanielian, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 2
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 4
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 5
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 30
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 31
WITNESSES
Becker, Hon. Edward R., Chief Judge, U.S. Court of Appeals for
the Third Circuit, Philadelphia, PA, on behalf of Judicial
Conference of the United States, prepared statement............ 7
Busiek, David, News Director, KCCI Television, Des Moines, IA, on
behalf of the Radio-Television News Directors Association,
prepared statement............................................. 49
Goldfarb, Ronald, prepared statement............................. 54
Gertner, Hon. Nancy, Judge, U.S. District Court for the District
of Massachusetts, prepared statement........................... 19
Wardle, Lynn D., Professor of Law, J. Reuben Clark Law School,
Brigham Young University, prepared statement................... 41
Zobel, Hon. Hiller B., Associate Justice, Superior Court
Department, Massachusetts Trial Court, prepared statement...... 24
APPENDIX
Proposed Legislation
Bill No. S.721................................................... 65
Additional Submissions for the Record
Administrative Officer of the U.S. Courts........................ 68
Robert D. Evans, American Bar Association, letter................ 69
ALLOWING CAMERAS AND ELECTRONIC MEDIA IN THE COURTROOM
----------
WEDNESDAY, SEPTEMBER 6, 2000
U.S. Senate,
Subcommittee on Administrative Oversight
and the Courts,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:03 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Grassley (chairman of the subcommittee) presiding.
Also present: Senators Specter, Schumer, and Feingold.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA
Senator Grassley. I would call the Subcommittee on
Administrative Oversight and the Courts to order.
Before I make a few opening comments, Senator Schumer is
going to be a little bit late and so wherever we are in
testimony and if he wants to speak at that point, I would ask
him to make his opening comments at that point. Somewhere along
the line, we are going to have Senator Specter come to
introduce and comment on his constituent who is with us today,
and we have Senator Feingold from the State of Wisconsin here
and he will make an opening statement.
I want to say good afternoon to everyone. Today, we are
convening this hearing on S. 721, which we refer to as the
Sunshine in the Courtroom Act. This bill makes it easier for
every American taxpayer to see what goes on in the Federal
courts, which obviously the taxpayers fund. The bill, which I
introduced with Senator Schumer of New York, would allow
photographing, electronic recording, broadcasting, and
televising of Federal court proceedings.
Helping the public to become well informed about the
judicial process will result in a healthier judiciary, and I
believe a better country. On the other hand, more public
scrutiny will bring about more accountability and help judges
to do a better job.
As Thomas Jefferson said, ``The execution of the laws is
more important than the making of them.'' Because Federal court
decisions are often far reaching and often the final statement
of our law, it is critical that judges operate in a manner that
provides the greatest accountability. We need to let the sun
shine in on our Federal courts.
In addition, allowing cameras in the Federal courtrooms is
consistent with the Founding Fathers' intent that trials be
held in front of as many people as choose to attend. I happen
to believe that the First Amendment requires that court
proceedings be open to the public and, by extension, the news
media. The public's right to observe judicial proceedings
firsthand is hardly less important. Put differently, the
Supreme Court has said, ``What transpires in the courtroom is
public property.''
An examination of the 47 States that allow cameras in State
courts reveals that still and video cameras can be used without
any problems, and procedural discipline has been preserved. My
own State of Iowa has operated successfully in this open manner
for now 20 years.
The arguments against cameras in the Federal courtrooms are
easily countered, and I am glad to counter them. First, we hear
that cameras brought about the disastrous O.J. Simpson case. Of
course, the Simpson case was very unique, and arguably the fact
that cameras allowed the public to see a judge lose control of
the trial gave most people a very different understanding of
what went on in that case than if they had not been able to
witness the evidence themselves.
Another reason for opposition is concern about witnesses'
safety, and this is a very legitimate concern and is therefore
addressed in our bill. Technological advances make it possible
to disguise the face and the voice of witnesses upon request,
thus not compromising anybody's safety.
We have heard that allowing cameras in the courtroom is an
attempt by Congress to micromanage the courts. Of course, this
couldn't be further from the truth. Our legislation gives the
sole discretion of allowing cameras to the presiding judge.
Now, it is very curious to me that the Judicial Conference
argues for more judicial discretion all the time, but doesn't
trust its judges to make decisions regarding cameras in the
courtroom.
We also hear that the Federal appellate courts have the
authority to allow cameras in the courts, so what is the need
for any change in law? The problem is that the whole court has
to agree to it instead of just the presiding judge.
Consequently, only the Second and Ninth Circuits currently
allow cameras.
All we are doing with this legislation is allowing a
presiding judge to make decisions on how to run his or her
courtroom, and helping the American people fulfill their right
to participate more fully in the judicial process by such
judicial discretion. I look forward to the testimony of today's
witnesses.
I will turn now to Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I want to thank
you for calling this hearing and for allowing me a few minutes
to speak at the outset. I won't be able to stay for very much
of the testimony, but I do want to thank the witnesses for
coming and assure them that I will review the record of this
hearing.
Mr. Chairman, I strongly support allowing cameras in
Federal courtrooms for a simple reason. Trials and court
hearings are public proceedings. They are paid for by the
taxpayers. Except in the most rare and unusual circumstances,
the public has a right to see what happens in these
proceedings.
We have a long tradition of press access to trials, but in
this day and age the public wants and deserves to see for
itself. It may no longer be sufficient to be able to read in
the morning paper what happened in a trial the day before.
State courts in the vast majority of States now allow
trials to be televised. This experience has shown that it is
possible to permit the public to see trials on television
without compromising the rights of a defendant to a fair trial
or the safety or private interests of witnesses or jurors.
Concerns about cameras interfering with the fair administration
of justice in this country, I believe, are overstated.
Let me also note that I believe that the arguments against
allowing cameras in the courtroom are the least persuasive in
the case of appellate proceedings, including the Supreme Court.
I had the opportunity to watch the oral argument at the Supreme
Court last year in an important case concerning campaign
finance reform. It was a fascinating experience and one that I
wish all Americans could have.
There is no question in my mind that the highly-trained and
prestigious judges and lawyers who sit on and argue before our
Nation's Federal appellate courts would continue to conduct
themselves with dignity and professionalism if cameras were
recording their work. These proceedings are where law is made
in this country. The public will benefit greatly from being
able to watch Federal judges and advocates in action at oral
argument.
So, Mr. Chairman, I am proud to be an original cosponsor of
the bill you have introduced with my friend from New York,
Senator Schumer. S. 721, it seems to me, is a responsible and
measured bill. It gives discretion to individual Federal judges
to allow cameras in the courtroom. At the same time, it assures
that witnesses will be able to request that their identities
not be revealed in televised proceedings. This bill gives
deference to the experience and judgment of Federal judges who
remain in charge of their own courtrooms. That is the right
approach, and I commend you, Mr. Chairman and Senator Schumer,
for taking it.
Now, my State of Wisconsin, of course, has a long and proud
tradition of open government, and I can tell you it has served
us well. Coming from that tradition, my approach is to look
with skepticism on any remnant of secrecy that lingers in our
governmental processes at the Federal level. When the workings
of Government are transparent, the people understand it better
and can more thoroughly and constructively participate in it.
And they can more easily hold their elected leaders and other
public officials accountable. I believe this principle can and
should be applied to the judicial, as well as the legislative
and executive branches of Government, while still respecting
the unique role of the unelected Federal judiciary.
I hope that this hearing today will fully air the arguments
for and against S. 721 and that we can prevail upon the
chairman of the committee to report the bill and try to get it
passed this year. Cameras in the courtroom is an idea whose
time came some time ago. It is high time we brought it to the
Federal courts.
I thank you, Mr. Chairman.
Senator Grassley. Thank you, Senator Feingold.
Before I introduce the first panel, I have a statement by
the distinguished chairman of the full Judiciary Committee,
Senator Hatch, to put in the record on the legislation. Also,
it acknowledges the fact that we do have a constituent of his,
Professor Lynn Wardle, here as a witness as well.
We also have a statement by the ranking minority member of
the Senate Judiciary Committee, Senator Patrick Leahy, on the
bill as well, and we will put both Senator Hatch and Senator
Leahy's statements in the record.
[The prepared statements of Senators Hatch and Leahy
follow:]
Prepared Statement of Hon. Orrin G. Hatch, a U.S. Senator From the
State of Utah
Mr. Chairman, I commend my colleague and friend Senator Charles E.
Grassley for holding this hearing today. I join him in thanking the
witnesses who will appear today to give testimony on S. 271,
legislation that would permit cameras and electronic media into our
federal courtrooms. I also wish to acknowledge the presence of a fellow
Utahn and a fellow graduate of Brigham Young University, Professor Lynn
D. Wardle, who is one of the witnesses who will testify today.
The paramount objective of our federal courts is to administer fair
and impartial justice to individual litigants in individual cases. In
criminal cases, federal courts function properly when those guilty of
violating the law are convicted and punished and, conversely, when the
innocent are declared innocent and set free. Similarly, in civil cases,
federal courts function properly when disputes between litigants are
resolved in a just manner. No other mission of the federal courts is as
important as its mission to mete out justice.
The Judicial Conference of the United States, the policymaking arm
of the federal judiciary, strongly opposes S. 271 because it believes
that allowing cameras and electronic media in federal courtrooms could
interfere with the ability of federal courts to mete out justice.
Supporters of S. 271, in contrast, argue that allowing cameras and
electronic media in the courtroom would increase civic education by
permitting citizens to witness the federal courts in action. The
Judicial Conference, however, maintains that increased public education
cannot be allowed to jeopardize the judiciary's primary mission of
administering fair and impartial justice.
The Judicial Conference is well-equipped to make this
determination. The federal judiciary has examined the issue of whether
cameras should be permitted in the federal courts for over 60 years,
both in specific cases and through Judicial Conference consideration.
The Conference consistently has expressed its view that permitting
cameras in the courtroom is contrary to the interests of justice.
According to the Judicial Conference, cameras and electronic media
in the courtroom can have an intimidating effect on litigants,
witnesses and jurors that negatively impacts the trial process. For
example, cameras can intimidate civil defendants who, regardless of the
merits of their case, might prefer to settle rather than risk damaging
accusations in a televised trial. Moreover, a witness recounting facts
to a jury often will act differently when he or she knows that
thousands of people are watching and listening to the story. This
change in witness's demeanor could have a profound impact on a jury's
ability to accurately assess the truthfulness of that witness.
The Judicial Conference also believes that S. 271 does not
adequately address the privacy concerns of litigants, witnesses,
attorneys, judges and others sucked into the maelstrom of a federal
trial. Witnesses and counsel often discuss sensitive information during
the course of a trial--information that frequently relates to
individuals who are not even parties to the case. Although such
personal information about non-parties is available to anyone attending
court proceedings in person, televising and broadcasting such
information nevertheless would be problematic.
I agree that permitting cameras and electronic media in the
courtroom could interfere with the federal courts' primary mission of
dispensing justice. Cameras and electronic media can change the way
witnesses, litigants, attorneys and even judges act in the context of a
trial.
Furthermore, I am concerned about the widespread distribution about
sensitive personal information about non-parties that could result if
S. 271 is enacted. I also believe that the legislation raises a host of
other issues--from security (the televising of trials would raise the
public profile of judges, U.S. Marshals and court personnel) to funding
(S. 271 does not authorize funding needed to deal with the costs of
allowing cameras and electronic media in the courtroom).
Importantly, I believe that the federal judiciary has special
expertise in this area and is entitled to a measure of deference.
Although I have these reservations about S. 271, I am pleased that
we will have this opportunity to consider both sides of this question
and hear from experts on court procedures.
__________
Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the
State of Vermont
Our democracy works best when our citizens are fully informed. That
is why I have supported efforts during my time in the Senate to promote
the goal of opening the proceedings of all three branches of our
government. We continue to make progress in this area. Except for rare
closed sessions, the proceedings of the Congress and its Committees are
open to the public, and carried live on cable networks. In addition,
more Members and Committees are using the Internet and Web sites to
make their work available to broader audiences. There remains room for
improvement, which is the reason I joined Senator McCain in introducing
S. 393, the Congressional Openness Act, which would provide public
Internet access to certain Congressional documents, including certain
Congressional Research Service publications, Senate lobbying and gift
report filings, and Senate and Joint Committee documents.
The work of Executive Branch agencies is also open for public
scrutiny through the Freedom of Information Act (FOIA) and the
Electronic FOIA amendments of 1996 that I was proud to sponsor. The
FOIA has served the country well in maintaining the right of Americans
to know what their government is doing--or in some cases, not doing. As
President Johnson said in 1966, when he signed the Freedom of
Information Act into law: ``This legislation springs from one of our
most essential principles: A democracy works best when the people have
all the information that the security of the Nation permits.''
Information about what occurs in our nation's federal courts is
available through physical attendance at proceedings which are
generally open to the public and restricted only by space limitations,
or through review of published decisions. The lines that frequently
form outside the U.S. Supreme Court are a testament to the fact that
courtrooms are often not large enough to accommodate the public's
interest in first hand observations of the proceedings. Press coverage
of trials and other court proceedings provides filtered information
through the lens of the particular reporter. Yet, cameras and
electronic media remain forbidden from federal court proceedings. This
blanket prohibition is a barrier to broader public access to view
first-hand the proceedings of the federal courts and our highest court,
the U.S. Supreme Court. The work of the Judicial Branch could benefit
from additional sunshine on its operations. The recent adverse
publicity over release of federal judges' financial disclosure reports
highlighted the skepticism that greets efforts to put up barriers to
public access.
I have co-sponsored S. 721, the Sunshine in the Courtroom Act,
along with Senators Grassley and Schumer to bring more sunshine into
our federal courts by allowing the televising of federal court
proceedings at the discretion of the presiding judge.
This bill would permit presiding appellate and district court
judges to allow cameras in the courtroom but does not require them to
do so. At the same time, it protects non-party witnesses by giving them
the right to have their voices and images obscured during their
testimony. Finally, the bill authorizes the Judicial Conference of the
United States to promulgate advisory guidelines for use by presiding
judges in determining the management and administration of
photographing, recording, broadcasting or televising of the
proceedings. The authority for cameras in federal district courts would
sunset in three years.
Forty-eight states, including my state of Vermont, permit cameras
in the courts. This legislation continues this tradition of openness at
the federal level. Lessons can be learned from the states as we saw in
a recent ruling in New York that struck down that state's ban on
televised coverage of trials. That ruling, which occurred in connection
with the highly publicized trial of police officers for the murder of
Amadou Diallo, was a response to Court TV's motion requesting that
cameras be admitted in the trial. New York Supreme Court Justice Joseph
Teresi declared unconstitutional a New York statute that had barred
cameras from courtrooms for 48 years, stating:
The quest for justice in any case must be accomplished under
the eyes of the public. The denial of access to the vast
majority will accomplish nothing but more divisiveness, while
the broadcast of the trial will further the interests of
justice, enhance public understanding of the judicial system,
and maintain a high level of public confidence in the
judiciary. [People v. Barr, 701 N.Y.S. 2d 891 (Albany Cty
2000)]
In 1994, the Judicial Conference concluded that the time was not
ripe to permit cameras in the federal courts, and rejected a
recommendation of the Court Administration and Case Management
Committee to authorize the photographing, recording, and broadcasting
of civil proceedings in federal trial and appellate courts. A majority
of the Conference was concerned about the intimidating effect of
cameras on some witnesses and jurors.
The New York Times opined at that time that ``the court system
needs to reconsider its total ban on cameras, and Congress should
consider making its own rules for cameras in the Federal courts.''
I appreciate the concerns of the Conference, but believe this
legislation grants the presiding judge the authority to evaluate the
effect of a camera on particular proceedings and witnesses, and decide
accordingly on whether to permit the camera into the courtroom. A
blanket prohibition on cameras is an unnecessary limitation on the
discretion of the presiding judge.
In this time of unprecedented technology, we cannot ignore the fact
that television is a significant source of information about the
American legal system. Allowing wider public access through televised
court proceedings will allow Americans to evaluate for themselves the
quality of justice in this country, and deepen their understanding of
our justice system. This legislation is a step in the right direction
to make our courtrooms and the justice system accessible for public
scrutiny. The time is long overdue for federal courts to permit cameras
in their proceedings.
I would like to thank Senators Grassley and Schumer for holding
this hearing and for their leadership on this important issue.
Senator Grassley. I welcome our first panel. We have two
Federal court judges and one State court judge. Our first
witness is the Honorable Edward Becker. With nearly 30 years of
service on the Federal bench, Judge Becker is currently the
Chief Judge of the U.S. Circuit Court of Appeals for the Third
Circuit, Philadelphia. Prior to this, he was Judge of the U.S.
District Court, Eastern District of Pennsylvania, for 11 years.
Judge Becker is also a member of the Executive Committee of the
Judicial Conference and will be representing them here today.
Next, we have the Honorable Nancy Gertner. Judge Gertner is
a District Judge of the U.S. District Court of the District of
Massachusetts, in Boston. This district had a pilot program
involving cameras in the courtroom from 1991 to 1994.
Our final judicial witness is the Honorable Hiller Zobel.
Judge Zobel is an Associate Justice for the Superior Court
Department of the Massachusetts Trial Court in Boston. He has
extensive experience with the issue of cameras in the
courtroom, having served as Co-Chair of the Massachusetts Bar
Association Bench-Bar News Committee, and is currently the
Chair of the Superior Court's Media Committee. Judge Zobel was
appointed by the American Bar Association to the National
Committee on Bar and Members of the Media, which addresses
media-court problems. And he serves on the Advisory Board of
the Donald W. Reynolds National Center for Courts and the Media
at the National Judicial College, University of Nevada.
We will do it as we introduced you, so Judge Becker, Judge
Gertner, Judge Zobel, in that order.
PANEL CONSISTING OF HON. EDWARD R. BECKER, CHIEF JUDGE, U.S.
COURT OF APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PA, ON
BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES; HON.
NANCY GERTNER, JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS, BOSTON, MA; AND HON. HILLER B. ZOBEL, ASSOCIATE
JUSTICE, SUPERIOR COURT DEPARTMENT, MASSACHUSETTS TRIAL COURT,
BOSTON, MA
STATEMENT OF HON. EDWARD R. BECKER
Judge Becker. Thank you, Senator Grassley. On behalf of the
Judicial Conference, I thank you for the opportunity to present
our views on S. 721. My oral statement is somewhat longer than
5 minutes, but in light of the importance of the issues to the
Federal judiciary, I respectfully request your indulgence to
complete my remarks which will not exceed 10 minutes.
Senator Grassley. Granted.
Judge Becker. Thank you, sir.
Although the Conference strongly opposes the bill, before I
explain why it is important to state that the Conference shares
the sponsors' desire for improving public education about the
Federal judiciary. But Federal courts are already fully open,
and the wisdom of S. 721 therefore turns on whether it will
advance public knowledge without damage to court processes. The
Judicial Conference believes that the answer is no.
I will begin with what we perceive to be harm to the
judicial process, but must first state two baseline premises.
First, if this proposal can result in real and irreparable harm
to a citizen's right to a fair and impartial trial, it is
unacceptable to say that the harm is not great or that it is
outweighed by the public good of televised court proceedings.
We cannot tolerate in the Federal courts even a little bit of
unfairness because that would be inconsistent with our sacred
trust.
If one thing is clear to me after 30 years on the Federal
bench, it is that balancing the positive effects of media
coverage against the degree of damage that camera coverage
would bring is not proper. Our mission is to administer the
highest possible quality of justice to each and every litigant,
not to provide entertaining backdrop for news reporters.
A second baseline point is that there can be a level of
unfairness in a trial that does not amount to a constitutional
deprivation. I speak here not as a decisionmaker in an
individual case, but on behalf of a policymaking body which
wants to ensure that no level of unfairness creeps into Federal
courtrooms.
I will begin with the question of perceived harms. The
Judicial Conference maintains that camera coverage would have a
notably adverse effect on court proceedings. First, we believe
that a witness telling facts to a jury will often act
differently when he or she knows, or even believes that
thousands of people are watching and listening to the story.
This change in the witness' demeanor could have a profound
effect on the jury's ability to accurately assess the veracity
of that witness. Media coverage could exacerbate any number of
human emotions in a witness, including bravado and over-
dramatization.
What, you may ask, is the basis for my conclusion? It is
the 1994 evaluation by the Federal Judicial Center of the 3-
year pilot program of electronic media coverage of Federal
civil proceedings in six district courts and two courts of
appeals. Anyone who has cited that study in support of the bill
has overlooked its most salient findings.
For example, 64 percent of the participating trial judges
and 40 percent of the participating attorneys reported that at
least to some extent cameras make witnesses more nervous than
they otherwise would be. In addition, 46 percent of the trial
judges believed that at least to some extent cameras make
witnesses less willing to appear in court. And 41 percent of
the trial judges and 32 percent of the attorneys found that at
least to some extent cameras distract witnesses. Just imagine
what the findings would be if criminal cases or truly high-
profile cases had been piloted. These are disquieting figures
indeed.
But other findings of the FJC study bear on the ability of
the courts to administer a fair trial in a televised case.
Sixty-four percent of the trial judges found that at least to
some extent the cameras caused attorneys to be more theatrical
in their presentations. Forty-three percent of the appellate
judges found the same syndrome at work.
Seventeen percent of the trial judges responded that at
least to some extent cameras prompt people who see the coverage
to try to influence their juror friends. These statistics are
based on exit interviews with jurors. Seventeen percent of the
trial judges and 21 percent of the attorneys found that at
least to some extent cameras disrupt courtroom proceedings. The
report by appellate judges was even higher--26 percent. Twenty-
seven percent of the attorneys reported that the cameras
distracted them, and 19 percent of the attorneys believed that
at least to some extent the cameras distracted jurors.
There are also disturbing reports about the effect of the
cameras on judges. Nine percent of the trial judges reported
that at least to some extent the cameras caused judges to avoid
unpopular decisions or positions. Fifty-six percent if the
appellate judges found that, to some extent or greater, cameras
cause attorneys to change the emphasis or content of their oral
arguments. And 34 percent reported that at least to some extent
cameras cause judges to change the emphasis or content of their
questions at oral argument.
One more finding bears particular mention. Fifty-six
percent of the trial judges reported their belief that media
coverage violates witness privacy. Now, we appreciate S. 721's
sensitivity to this issue, but we are concerned about the
provision that would require courts to disguise the face and
voice of a witness upon his or her request.
Anyone who has been in court knows how defensive witnesses
can be. Frequently, they have a right to be. They are summoned
into court to be examined in public. Sometimes, they are
embarrassed or even humiliated. Providing them with the choice
whether to testify in the open or blur their image and voice
would be cold comfort indeed.
Sections 1(a) and (b) of the bill would allow the presiding
judge of an appellate or district court to decide whether to
allow cameras in a particular proceeding. If this legislation
were to be enacted, I am sure that all Federal judges would use
extreme care and judgment in making this determination.
Nonetheless, Federal judges are not clairvoyants. You never
know what is going to happen in a trial. I sat on the trial
bench for 11 years and I know that. Even the most
straightforward or run-of-the-mill cases have unforeseen
developments. Obviously, a judge never knows how a lawyer will
proceed or how a witness or party will testify. The notion of
conferring discretion upon the trial judge to decide on cameras
in advance does not eliminate our concerns.
Now, there are a number of other harms that are detailed in
my statement that I do not have the time to discuss here, but I
mention them briefly and refer the committee to my prepared
statement for supporting arguments in detail.
First, cameras can create security concerns. I note in this
regard that there is a greater risk in Federal courts in this
respect than in State courts. The number of threats against
Federal judges and Federal facilities has escalated
tremendously in recent years, and widespread media exposure
could exacerbate this problem.
Second, S. 721 seems to assume that camera coverage will be
without cost to the Federal judiciary. But that, I respectfully
submit, is not so. To the contrary, considerable costs will
likely be required not only for equipment and retrofitting
facilities, but also in hiring and training of media
coordinators in each of the Federal courts. The media
representatives surveyed by the FJC represented that a media
coordinator was essential to the program.
Now, finally, let me turn to the other part of the putative
equation, the supposed educational benefit of cameras in the
courtroom. The proponents of cameras rely, of course, on the
supposed benefits of public education and understanding court
processes, but it has yet to be proven that cameras in the
courtroom will significantly further them.
The FJC study sought to analyze the results achieved during
the pilot project. The main approach to the issue lay in a
content analysis of evening news broadcasts using footage
obtained during the pilot program. The 90 stories analyzed
presented an average of 56 seconds of courtroom footage per
story. There is, I respectfully submit, precious little
educational content in 56 seconds.
Moreover, 63 percent even of that courtroom footage was
voiced over by a reporter's narration. Thus, the witnesses,
parties and attorneys spoke on camera for just over one-third
of the air time. The information about the nature of the case
was provided by the reporters or anchors.
The FJC report concluded on this point that the vast
majority of the stories did not even identify the proceeding as
a civil matter. Seventy-seven percent of the stories failed
even to identify the type of proceeding involved. The point is
that the stories did not provide a high level of detail about
the legal process in the cases covered. The analysis revealed
that increasing the proportion of courtroom footage used in a
story did not significantly increase the information given
about the legal process.
In view of the foregoing, I suggest that the benefits of
televised coverage of courtroom proceedings are greatly
overrated and are certainly far outweighed by the detriments I
have described. Television news coverage appears ofttimes
simply to use the courtroom for a backdrop or a visual image
for the news story which, like most stories on television, are
delivered in short sound bites.
Two final points very briefly. The other vehicle for
transmission of courtroom proceedings are the cable networks,
but they do not alter the balance. First, they are not free.
Moreover, cable networks rarely provide gavel-to-gavel
coverage. What they do is to package limited trial excerpts
with commentary, often interspersed with frequent commercial
breaks. What results is not education into court processes, but
entertainment.
In conclusion, I note, Mr. Chairman, that the Federal
judiciary acknowledges that more needs to be done to improve
the general understanding by the public of the Federal
judiciary and its processes. But we believe that this goal can
best be achieved by active, judicially-sponsored community
outreach programs.
Federal courts have in the past few years begun to play an
active role in this area through a variety of judicial outreach
programs. We believe that this will provide true education
about the courts and that any funds available are better spent
on community outreach programs than a cameras in the courtroom
project.
Mr. Chairman, I thank you for allowing me to testify and,
of course, at the appropriate point will be pleased to answer
any questions that you may have.
[The prepared statement of Judge Becker follows:]
Prepared Statement of Hon. Edward R. Becker
The Judicial Conference of the United States, which is the policy-
making body for the federal courts, strongly opposes enactment of S.
721, a bill that would ``allow media coverage of court proceedings'' in
the federal courts. The Conference has thoroughly studied this issue
and has taken the position that permitting cameras in the federal trial
courts is not in the best interests of justice because it may threaten
a citizen's right to a fair trial.
Among those reasons supporting the Conference's position are the
following.
The intimidating effect of cameras on litigants,
witnesses, and jurors has a profoundly negative impact on the trial
process.
Allowing camera coverage of court trials could interfere
with a citizen's right to a fair trial, even though judges would be
provided discretion in permitting cameras.
Permitting camera coverage would almost certainly become a
potent negotiating tactic in pretrial settlement negotiations.
Allowing cameras in federal courts can create security
concerns and heighten the level and potential of threats to judges.
Cameras can create privacy concerns for countless numbers
of persons, many of whom are not even parties to the case, but about
whom very personal information may be revealed.
The negative responses in a 1994 Federal Judicial Center
report reviewing a pilot program on cameras in the federal courts led
the Conference to conclude that the intimidating effect of cameras on
witnesses and jurors at trial was cause for alarm.
Permitting cameras in the courtroom will not significantly
further public education and understanding of court processes.
Open proceedings have been a hallmark of the federal judiciary, and
the federal courts are leaders in the use of technology to promote
access to and use of the federal courts. In addition, the judiciary has
developed community outreach programs throughout the country to promote
education about the judicial process. But a judge's paramount
responsibility is to ensure that all citizens enjoy a fair and
impartial trial. It is the mission of the federal judiciary to
administer the highest possible quality of justice to each and every
litigant, and not even some unfairness resulting from media coverage
can be tolerated. Because cameras in court proceedings could compromise
a citizen's right to a fair trial, the Judicial Conference opposes S.
721.
i. introduction
Mr. Chairman, and Members of the Subcommittee, my name is Edward R.
Becker. I am presently Chief Judge of the United States Court of
Appeals for the Third Circuit, having served on the court for over 18
years. Prior to that I was a judge of the United States District Court
for the Eastern District of Pennsylvania for over 11 years. I will
observe my 30th anniversary on the federal bench on December 11, 2000.
I am appearing before you today in my capacity as a member of the
Executive Committee of the Judicial Conference of the United States. On
behalf of the Judicial Conference, I appreciate the invitation to
testify. We hope that the testimony provided here is useful to you.
As you requested, this statement will comment on S. 721, a bill
that would ``allow media coverage of court proceedings.'' The Judicial
Conference strongly opposes this measure.
The federal judiciary has examined the issue of whether cameras
should be permitted in the federal courts for more than six decades,
both through case law and Judicial Conference consideration. The
Judicial Conference in its role as the policy-making body for the
federal judiciary has consistently expressed the view that camera
coverage can do irreparable harm to a citizen's right to a fair and
impartial trial. We believe that the intimidating effect of cameras on
litigants, witnesses, and jurors has a profoundly negative impact on
the trial process. Moreover, in civil cases cameras can intimidate
civil defendants who, regardless of the merits of their case, might
prefer to settle rather than risk damaging accusations in a televised
trial. Cameras can also create security concerns in the federal courts.
Finally, cameras can create privacy concerns for countless numbers of
persons, many of whom are not even parties to the case, but about whom
very personal information may be revealed at trial.
These concerns are far from hypothetical. Since the infancy of
motion pictures, cameras have had the potential to create a spectacle
around court proceedings. Obvious examples include the media frenzies
that surrounded the 1935 Lindbergh baby kidnapping trial, the murder
trial in 1954 of Dr. Sam Sheppard, and the more recent Menendez
brothers and O.J. Simpson trials. We have avoided such incidence in the
federal courts due to the present bar of cameras in the trial courts,
which S. 721 now proposes to overturn.
The federal courts have shown strong leadership in the continuing
effort to modernize the litigation process. This has been particularly
true of the federal judiciary's willingness to embrace new
technologies, such as electronic case filing and access,
videoconferencing, and electronic evidence presentation systems. The
federal courts have also established community outreach programs in
which several thousand students and teachers nationwide have come to
federal courthouses to learn about court proceedings. Our opposition to
this legislation, therefore, is not, as some may suggest, borne of a
desire to stem technology or access to the courts. We oppose the
broadcasting of federal court proceedings because it is contrary to the
interests of justice, which it is our most solemn duty to uphold.
Today I will discuss some of the Judicial Conference's specific
concerns with this legislation, as well as with the issues of cameras
in the courtroom, generally. However, before addressing those concerns,
I would like to provide you with a brief review of the Conference's
experience with cameras, which will demonstrate the time and effort it
has devoted to understnading this issue over the years. I must
emphasize at the threshold that today, as in the past, the federal
courts are at all times open to the public.
ii. background on cameras in the federal courts
Whether to allow cameras in the courtroom is far from a novel
question for the federal judiciary. Electronic media coverage of
criminal proceedings in federal courts has been expressly prohibited
under Federal Rule of Criminal Procedure 53 since the criminal rules
were adopted in 1946. That rule states that ``[t]he taking of
photographs in the courtroom during the progress of judicial
proceedings or radio broadcasting of judicial proceedings from the
courtroom shall not be permitted by the court.''
In 1972, the Judicial Conference adopted a prohibition against
``broadcasting, televising, recording or taking photographs in the
courtroom and areas immediately adjacent thereto. . . .'' The
prohibition applied to criminal and civil cases. The Conference has,
however, repeatedly studied and considered the issue since then.
In 1988, Chief Justice William Rehnquist appointed an Ad Hoc
Committee on Cameras in the Courtroom, which recommended that a three-
year experiment be established permitting camera coverage of certain
proceedings in selected federal courts. In 1990, the Judicial
Conference adopted this recommendation, and authorized a three-year
pilot program allowing electronic media coverage of civil proceedings
in six district and two appellate courts, which commenced July 1, 1991.
The courts that volunteered to participate in the pilot project were
the U.S. Courts of Appeals for the Second and Ninth Circuits, and the
U.S. District Courts for the Southern District of Indiana, District of
Massachusetts, Eastern District of Michigan, Southern District of New
York, Eastern District of Pennsylvania, and Western District of New
York.
The Federal Judicial Center (FJC) conducted a study of the pilot
project and submitted its results to a committee of the Judicial
Conference in September 1994.\1\ The research project staff made a
recommendation that the Conference ``authorize federal courts of
appeals and district courts nationwide to provide camera access to
civil proceedings in their courtrooms. . . .'' It is important to note
that the recommendations included in the report were reviewed within
the FJC but not by its Board.
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\1\ In 1994, the Federal Judicial Center published a report
entitled Electronic Media Coverage of Federal Civil Proceedings: An
Evaluation of the Pilot Program in Six District Courts and Two Courts
of Appeals. The period used by the Federal Judicial Center for its
study was July 1, 1991, to June 30, 1993.
---------------------------------------------------------------------------
The Conference disagreed with the conclusions drawn by the FJC
staff and concluded that the potentially intimidating effect of cameras
on some witnesses and jurors was cause for considerable concern. The
paramount responsibility of a United States judge is to uphold the
Constitution, which guarantees citizens the right to a fair and
impartial trial. Taking into account this considerable responsibility
placed upon judges, the Conference concluded that it was not in the
interest of justice to permit cameras in federal courtrooms.
Two years later, at its March 1996 session, the Judicial Conference
again considered the issue. At that session, the Conference voted to
strongly urge each circuit judicial council to adopt, pursuant to its
rulemaking authority articulated in 28 U.S.C. Sec. 332(d)(1), an order
reflecting the Conference's September 1994 decision not to permit the
taking of photographs or radio and television coverage of proceedings
in U.S. district courts. The Conference also voted to strongly urge
circuit judicial councils to abrogate any local rules that conflict
with this decision, pursuant to 28 U.S.C. Sec. 2071(c)(1).
The Conference, however, made a distinction between camera coverage
for appellate and district court proceedings. Because an appellate
proceeding does not involve witnesses and juries, the concerns of the
Conference regarding the impact of camera coverage on the litigation
process were reduced. Therefore, the Conference adopted a resolution
stating that ``[e]ach court of appeals may decide for itself whether to
permit the taking of photographs and radio and television coverage of
appellate arguments, subject to any restrictions in statutes, national
and local rules, and such guidelines as the Conference may adopt.''
The current policy, as published in the Guide to Judiciary Policies
and Procedures states:
A judge may authorize broadcasting, televising, recording, or
taking photographs in the courtroom and in adjacent areas
during investigative, naturalization, or other ceremonial
proceedings. A judge may authorize such activities in the
courtroom or adjacent areas during other proceedings, or
recesses between such proceedings, only: (a) for the
presentation of evidence; (b) for the perpetuation of the
record of the proceedings; (c) for security purposes; (d) for
other purposes of judicial administration; or (e) in accordance
with pilot programs approved by the Judicial Conference of the
United States.
Presently, only two of the 13 appellate courts, the Second and
Ninth Circuits, have decided to permit camera coverage in appellate
proceedings. This decision was made by the judges of each court. As for
cameras in district courts, most circuit councils have either adopted
resolutions prohibiting cameras in the district courts or acknowledged
that the district courts in that circuit already have such prohibition.
Finally, it may be helpful to describe the state rules regarding
cameras in the courtroom. While it is true that most states permit some
use of cameras in their courts, such access by the media is not
unlimited. The majority of states have imposed restrictions on the use
of cameras in the court or have banned cameras altogether in certain
proceedings. Although it is somewhat difficult to obtain current
information, it appears that approximately 20 states that permit
cameras have restrictions of some kind written into their authorizing
statutes, such as prohibiting coverage of certain proceedings or
witnesses, and/or requiring the consent of the parties, victims of sex
offenses, and witnesses. Eleven states do not allow coverage of
criminal trials. In eight states cameras are allowed only in appellate
courts. Mississippi, South Dakota, and the District of Columbia
prohibit cameras altogether. Utah allows only still photography at
civil trials, and Nebraska allows only audio coverage in civil trials.
In fact, only 16 states provide the presiding judge with the type of
broad discretion over the use of cameras contained in this legislation.
It is clear from the widely varying approaches to the use of cameras
that the state courts are far from being of one mind in the approach
to, or on the propriety and extent of, the use of cameras in the
courtroom.
iii. judicial conference concerns regarding s. 721
I would now like to discuss some of the specific concerns the
Judicial Conference has with S. 721, as well as the more general issue
of media coverage in the courtroom.
A. Cameras Negatively Impact the Trial Process
Supporters of cameras in the courtroom assert that modern
technology has made cameras and microphones much less obvious,
intrusive or disruptive, and that therefore the judiciary need not be
concerned about their presence during proceedings. That is not the
issue. While covert coverage may reduce the bright lights and tangle of
wires that were made famous in the Simpson trial, it does nothing to
reduce the significant and measurable negative impact that camera
coverage can have on the trial participants themselves.
Proponents of cameras in the courtroom argue that media coverage
would benefit society because it would enable people to become more
educated about the legal system and particular trials. But even if this
is true, and we take up this question later in the testimony, increased
public education cannot be allowed to interfere with the judiciary's
primary mission, which is to administer fair and impartial justice to
individual litigants in individual cases. While judges are accustomed
to balancing conflicting interests, balancing the positive effects of
media coverage against an external factor such as the degree of
impairment of the judicial process that camera coverage would bring is
not the kind of thing judges should balance. Rather, our mission is to
administer the highest possible quality of justice to each and every
litigant. We cannot tolerate even a little bit of unfairness (based on
media coverage), notwithstanding that society as a whole might in some
way benefit, for that would be inconsistent with our mission.
The Conference maintains that camera coverage would indeed have a
notably adverse impact on court proceedings. This includes the impact
the camera and its attendant audience would have on the attorneys,
jurors, witnesses, and judges. We believe, for example, that a witness
telling facts to a jury will often act differently when he or she knows
that thousands of people are watching and listening to the story. This
change in a witness' demeanor could have a profound impact on a jury's
ability to accurately assess the veracity of that witness. Media
coverage could exacerbate any number of human emotions in a witness
from bravado and over dramatization, to self-consciousness and under
reaction. In fact, even according to the FJC study (which is discussed
in more detail later in this statement), 64 percent of the
participating judges reported that, at least to some extent, cameras
make witnesses more nervous. In addition, 46 percent of the judges
believed that, at least to some extent, cameras make witnesses less
willing to appear in court, and 41 percent found that, at least to some
extent, cameras distract witnesses.
Such effects could severely compromise the ability of jurors to
assess the veracity of a witness and, in turn, could prevent the court
from being able to ensure that the trial is fair and impartial.
Likewise, television cameras could have a profound impact on the
deliberations of a jury. The psychological pressures that jurors are
already under would be unnecessarily increased by the broader exposure
resulting from the broadcasting of a trial and could conceivably affect
a juror's judgment to the detriment of one of the parties.
B. S. 721 Inadequately Protects the Right to a Fair Trial
The primary goals of this legislation is to allow radio and
television coverage of federal court cases. While there are several
provisions aimed at limiting coverage (i.e., allowing judges the
discretion to allow or decline media coverage; authorizing the Judicial
Conference to develop advisory guidelines regarding media coverage; and
requiring courts to disguise the face and voice of a witness upon his
or her request), the Conference is convinced that camera coverage
could, in certain cases, so indelibly affect dynamics of the trial
process that it would impair citizens' ability to receive a fair
trial.\2\
---------------------------------------------------------------------------
\2\ We recognize that the legislation would sunset the authority
for district court judges to permit cameras three years after the date
of enactment of the Act. There is no comparable sunset provision for
the appellate courts.
---------------------------------------------------------------------------
For example, Section 1(a) and (b) of the bill would allow the
presiding judge of an appellate or district court to decide whether to
allow cameras in a particular proceeding before that court. If this
legislation were to be enacted, we are confident that all federal
judges would use extreme care and judgment in making this
determination. Nonetheless, federal judges are not clairvoyants. Even
the most straightforward or ``run of the mill'' cases have unforeseen
developments. Obviously a judge never knows how a lawyer will proceed
or how a witness or party will testify. And these events can have a
tremendous impact on the trial participants. Currently, courts have
recourse to instruct the jury to disregard certain testimony or, in
extreme situations, to declare a mistrial if the trial process is
irreparably harmed. If camera coverage is allowed, however, there is no
opportunity to later rescind remarks heard by the larger television
audience. This concern is of such importance to the Conference that it
opposes legislation that would give a judge discretion to evaluate in
advance whether television cameras should be permitted in particular
cases.
We also are concerned about the provision that would require courts
to disguise the face and voice of a witness upon his or her request.
Anyone who has been in court knows how defensive witnesses can be.
Frequently they have a right to be. Witnesses are summoned into court
to be examined in public. Sometimes they are embarrassed or even
humiliated. Providing them the choice of whether to testify in the open
or blur their image and voice would be cold comfort given the fact that
their name and their testimony will be broadcast to the community. It
would not be in the interest of the administration of justice to
unnecessarily increase the already existing pressures on witnesses.
These basic concerns regarding witnesses were eloquently described
by Justice Clark in Estes v. Texas, 381 U.S. 532:
The quality of the testimony in criminal trials will often be
impaired. The impact upon a witness of the knowledge that he is
being reviewed by a vast audience is simply incalculable. Some
may be demoralized and frightened, come cocky and given to
overstatement; memories may falter, as with anyone speaking
publicly, and accuracy of statement may be severely undermined.
Embarrassment may impede the search for the truth, as may a
natural tendency toward over dramatization. Furthermore,
inquisitive strangers and `cranks' might approach witnesses on
the street with jibes, advice or demands for explanation of
testimony. There is little wonder that the defendant cannot
`prove' the existence of such factors. Yet we all know from
experience that they exist. . . .
Estes, 381 U.S. at 547.
It is these concerns that cause the Judicial Conference of the
United States to oppose enactment of S. 721.
C. Threat of Camera Coverage Could Be Used as a Trial Tactic
Cameras provide a very strong temptation for both attorneys and
witnesses to try their cases in the court of public opinion rather than
in a court of law. Allowing camera coverage would almost certainly
become a potent negotiating tactic in pretrial settlement negotiations.
For example, in a high-stakes case involving millions of dollars, the
sample threat that the president of a defendant corporation could be
forced to testify and be cross examined, for the edification of the
general public, might well be a real disincentive to the corporation's
exercising its right to a public trial.
D. Cameras Can Create Security Concerns
Although the bill includes language allowing witnesses who testify
to be disguised, the bill does not address security concerns or make
similar provision regarding other participants in judicial proceedings.
The presence of cameras in the courtroom is likely to heighten the
level and the potential of threats to judges. The number of threats
against judges has escalated over the years, and widespread media
exposure could exacerbate the problem. Additionally, all witnesses,
furors, and United States Marshals Service personnel may be put at risk
because they would no longer have a low public profile.
Also, national and international camera coverage of trials in
federal courthouses, would place these buildings, and all in them at
greater risk from terrorists, who tend to choose targets for
destruction that will give their ``messages'' the widest exposure. Such
threats would require increased personnel and funding to adequately
protect participants in court proceedings.
E. Cameras Can Create Serious Privacy Concerns
There is a rising tide of concern among Americans regarding privacy
rights and the Internet. Numerous bills have been introduced in both
the Congress and state legislatures to protect the rights of individual
citizens from the indiscriminate dissemination of personal information
that once was, to use a phrase coined by the Supreme court, hidden by
``practical obscurity,'' \3\ but now is available to anyone at any time
because of the advances of technology. The judiciary is studying this
issue carefully with respect to court records, and Congress has before
it a bipartisan proposal to create a Privacy Study Commission to look
at a number of issues, including public records.
---------------------------------------------------------------------------
\3\ United States Department of Justice v. Reporters Committee for
the Freedom of the Press, 489 U.S. 749, (764 (1989).
---------------------------------------------------------------------------
Broadcasting of trials presents many of the same concerns about
privacy as does the indiscriminate dissemination of information on the
Internet that was once only available at the courthouse. Witnesses and
counsel frequently discuss very sensitive information during the course
of a trial. Often this information relates to individuals who are not
even parties to the case, but about whom personal information may be
revealed. Also, in many criminal and civil trials, which the media
would most likely be interested in televising, much of the evidence
introduced may be of an extremely private nature, revealing family
relationships and personal facts, including medical and financial
information. This type of information provided in open court, is
already available to the public through the media. Televising these
matters sensationalizes these details for no apparent good reason.
Involvement in a federal case can have a deep and long-lasting
impact on all of its participants, most of whom have neither asked for
nor sought publicity. In this adversarial setting, reputations can be
compromised and relationships can be damaged. In fact, according to the
FJC study on live courtroom media coverage, 56 percent of the
participating judges felt that electronic media coverage violates a
witness's privacy. This is not to say that the Conference advocates
closed trials; far from it. Nevertheless, there is a common-sense
distinction between a public trial in a public courtroom--typically
filled with individuals with a real interest in the case--and its
elevation to an event that allows and encourages thousands to become
involved intimately in a case that essentially concerns a small group
of private people or entities.
The issue of privacy rights is one that has not been adequately
considered or addressed by those who would advocate the broadcasting of
trials. This heightened awareness of and concern for privacy rights is
a relatively new and important development that further supports the
position of the Judicial Conference to prohibit the use of cameras in
the courtroom.
F. S. 721 Does Not Address the Complexities Associated With Camera
Coverage
Media coverage of a trial would have a significant impact on that
trial process. There are major policy implications as well as many
technical rules issues to be considered, none of which are addressed in
the proposed legislation. For example, televising a trial makes certain
court orders, such as those sequestering witnesses, more difficult to
enforce. In a typical criminal trial, most witnesses are sequestered at
some point. In addition, many related technical issues would have to be
addressed, including advance notice to the media and trial
participants, limitations on coverage and camera control, coverage of
the jury box, and sound and light criteria.
Finally, S. 721 includes no funding authorization for
implementation of its mandates. Regardless of whether funding is
authorized, there is no guarantee that needed funds would be
appropriated. The cost associated with allowing cameras, however, could
be significant. For example, costs would be incurred to retrofit
courtrooms to incorporate cameras while minimizing their actual
presence to the trial participants. Also, to ensure that a judge's
orders regarding coverage of the trial were followed explicitly (e.g.,
not filming the jury, obscuring the image and voice of certain
witnesses, or blocking certain testimony), a court may need to purchase
its own equipment, as well as hire technicians to operate it. When
considering that these expenses may have to be incurred in each of the
94 districts, the potential cost could be significant. An additional
considerable cost would be creation of the position of media
coordinator or court administrative liaison to administer and oversee
an electronic media program on a day-to-day basis. According to the FJC
report, the functions of the media liaisons included receiving
applications from the media and forwarding them to presiding judges,
coordinating logistical arrangements with the media, and maintaining
administrative records of media coverage.
G. There Is No Constitutional Right To Have Cameras in the Courtroom
Some have asserted that there is a constitutional ``right'' to
bring cameras into the courtroom and that the First Amendment requires
that court proceedings be open to this manner to the news media. The
Judicial Conference responds to such assertions by stating that today,
as in the past, federal court proceedings are open to the public;
however, nothing in the First Amendment requires televised trials.
The seminal case in this issue is Estes v. Texas, 381 U.S. 532
(1965). In Estes, the Supreme Court directly faced the question whether
a defendant was deprived of his right under the Fourteenth Amendment to
due process by the televising and broadcasting of his trial. The Court
held that such broadcasting in that case violated the defendant's right
to due process of law. At the same time, a majority of the Court's
members addressed the media's right to telecast as relevant to
determining whether due process required excluding cameras from the
courtroom. Justice Clark's plurality opinion and Justice Harlan's
concurrence indicated that the First Amendment did not extend the right
to the news media to televise from the courtroom. Similarly, Chief
Justice Warren's concurrence, joined by Justices Douglas and Goldberg,
stated:
[n]or does the exclusion of television cameras from the
courtroom in any way impinge upon the freedoms of speech and
the press. . . . So long as the television industry, like the
other communications media, is free to send representatives to
trial and to report on those trials to its viewers, there is no
abridgement of the freedom of press.
Estes, 381 U.S. at 584-85 (Warren, C.J., concurring).
In the case of Westmoreland v. Columbia Broadcasting System, Inc.,
752 F.2d 16 (2d Cir. 1984), the Second Circuit was called upon to
consider whether a cable news network had a right to televise a federal
civil trial and whether the public had a right to view that trial. In
that case, both parties had consented to the presence of television
cameras in the courtroom under the close supervision of a willing
court, but a facially applicable court rule prohibited the presence of
such cameras. The Second Circuit denied the attempt to televise that
trial, saying that no case has held that the public has a right to
televise trials. As stated by the court, ``[t]here is a long leap . . .
between a public right under the First Amendment to attend trials and a
public right under the First Amendment to see a given trial televised.
It is a leap that is not supported by history.'' Westmoreland, 752 F.2d
at 23.
Similarly, in United States v. Edwards, 785 F.2d 1293 (5th Cir.
1986), the court discussed whether the First Amendment encompasses a
right to cameras in the courtroom, stating: ``No case suggests that
this right of access includes a right to televise, record, or otherwise
broadcast trials. To the contrary, the Supreme Court has indicated that
the First Amendment does not guarantee a positive right to televise or
broadcast criminal trials.'' Edwards, 785 F.2d at 1295. The court went
on to explain that while television coverage may not always be
constitutionally prohibited, that is a far cry from suggesting that
television coverage is ever constitutionally mandated.
These cases forcefully make the point that, while all trials are
public, there is no constitutional right of media to broadcast federal
district court or appellate court proceedings.
H. The Teachings of the FJC Study
Proponents of S. 721 have indicated that the legislation is
justified in part by the FJC study referred to earlier. The Judicial
Conference based, in part, its opposition to cameras in the courtroom
on the same study. Given this apparent inconsistency, it may be useful
to highlight several important findings and limitations of the study.
As I noted earlier in the statement, the recommendations included in
the FJC report, which were proposed by the research project staff, were
reviewed within the FJC but not by its Board.
First, the study only pertained to civil cases. This legislation,
if enacted, would allow camera coverage in both civil and criminal
cases. As this Subcommittee is acutely aware, the number of criminal
cases in the federal courts continues to rise. One could expect that
most of the media requests for coverage would be in sensational
criminal cases, where the problems for witnesses, including victims of
crimes, and jurors are most acute.
Second, the study's conclusions ignore a large amount of
significant negative statistical data. For example, the study reports
on attorney ratings of electronic media effects in proceedings in which
they were involved. Among these negative statistics were the following:
32 percent of the attorneys who responded felt that, at
least to some extent, the cameras distract witnesses;
40 percent felt that, at least to some extent, the cameras
make witnesses more nervous than they otherwise would be;
19 percent believed that, at least to some extent, the
cameras distract jurors;
21 percent believed that, at least to some extent, the
cameras cause attorneys to be more theatrical in their presentations;
27 percent believed that, at least to some extent, the
cameras have the effect of distracting the attorneys; and
21 percent believed that, at least to some extent, the
cameras disrupt the courtroom proceedings.
When trial judges were asked these same questions, the percentages
of negative responses were even higher:
46 percent believed that, at least to some extent, the
cameras make witnesses less willing to appear in court;
41 percent found that, at least to some extent, the
cameras distract witnesses;
64 percent reported that, at least to some extent, the
cameras make witnesses more nervous than they otherwise would be;
17 percent responded that, at least to some extent,
cameras prompt people who see the coverage to try to influence juror-
friends;
64 percent found that, at least to some extent, the
cameras cause attorneys to be more theatrical in their presentations;
9 percent reported that, at least to some extent, the
cameras cause judges to avoid unpopular decisions or positions; and
17 percent found that, at least to some extent, cameras
disrupt courtroom proceedings.
These negative statistical responses from judges and attorneys
involved in the pilot project dominated the Judicial Conference debate
and were highly influential in the Conference's conclusion that the
intimidating effect of cameras on witnesses and jurors was cause for
alarm. Since a United States judge's paramount responsibility is too
seek to ensure that all citizens enjoy a fair and impartial trial, and
cameras may compromise that right, allowing cameras would not be in the
interest of justice. For these reasons, the Judicial Conference
rejected the conclusions made by the FJC study with respect to cameras
in district courts.
For the appellate courts, an even larger percentage of judges who
participated in the study related negative responses:
47 percent of the appellate judges who responded found
that, at least to some extent, the cameras cause attorneys to be more
theatrical in their presentations;
56 percent found that, at least to some extent, the
cameras cause attorneys to change the emphasis or content of their oral
arguments;
34 percent reported that, at least to some extent, cameras
cause judges to change the emphasis or content of their questions at
oral arguments; and
26 percent reported that, at least to some extent, the
cameras disrupt courtroom proceedings.
While the Conference did allow each United States court of appeals
to determine whether to permit the use of cameras in that circuit,
these high negative responses give us a very real indication as to why
only two out of 13 courts of appeals have allowed their proceedings to
be televised. The two courts that do allow camera coverage are the
Second and Ninth Circuits, which voluntarily participated in the pilot
project.
Carefully read, the FJC study does not reach the firm conclusions
for which it is repeatedly cited. The negative responses described
above undermine such a reading. When considering legislation affecting
cameras in the courtroom with such permanent and long-range
implications for the judicial process, the negative responses should be
fully considered. Certainly that is what the Conference focused on. In
reality the recommendations of the study reflect a balancing exercise
which may seem proper to social scientists but which is unacceptable to
judges who cannot compromise the interests of the litigants, jurors,
and witnesses, even for some amorphous public good. We turn to that
issue now.
iv. the putative educational benefit of cameras in the courtroom
The proponents of cameras in the courtroom rely, of course, on the
putative benefits of public education and understanding of court
processes. The Judicial Conference supports that goal but does not
agree that cameras in courtrooms will significantly further it. The FJC
study analyzed the results achieved during the pilot project. The main
approach to the issue lay in a content analysis of evening news
broadcast using footage obtained during the pilot program.\4\ The
content analysis is disquieting. The ninety stories analyzed presented
a total of one hour and twenty-five minutes of courtroom footage, with
an average of fifty-six seconds of courtroom footage per story. There
is not too much educational content in 56 seconds. Moreover, most of
the courtroom footage was voiced over by a reporter's narration. On
average, reporters narrated 63 percent of all courtroom footage. Thus,
the witnesses, parties, and attorneys spoke on camera for just over
one-third of the total air time. In at least one-half of the cases
photographed, information on the nature of the case was provided by
reporters or anchors without relying on the participants.
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\4\ This analysis was conducted by the Center for Media and Public
Affairs under contract with the FJC. Content analysis is the objective
and systematic description of communicative material. The content
analysis performed for this study proceeded in two phases. First, a
qualitative analysis was used to identify the symbols, stylistic
devices, and narrative techniques shaping the form and substance of the
news stories; this allowed the researchers to develop analytic
categories based on the actual content of the stories rather than
imposing priori categories. Second, the analytic categories that were
developed and pre-tested formed the basis of a quantitative analysis,
which involved the systematic coding of story content into discrete
categories.
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The FJC report also sought to determine specifically the extent to
which the stories provided basic educational information about the
legal system, examining whether five pieces of information were
conveyed to the viewer: (1) identification of the case as a civil
matter; (2) identification of the type or proceeding, such as a hearing
or trial; (3) statements about whether a jury was present; (4)
descriptions of the proceedings on a given day; and (5) discussion of
the next step in the legal process. The report concluded as follows:
The vast majority of stories (95 percent of non-first day
stories) did not identify the proceeding covered as a civil
matter. In addition, 77 percent of the stories failed to
identify the type of proceeding involved. Almost three-quarters
(74 percent) of all stories did not provide information about
whether a jury was present, including half of the stories that
identified the covered proceedings as a trial.
Most stories (74 percent) did explain what transpired in
court on a particular day, such as who testified or what
evidence was presented. In multiple-day cases, 90 percent of
the stories explained the daily proceedings, compared to 63
percent in single-day stories. Seventy-six percent of the daily
proceedings in a story were explained by a combination of
reporter narration and participant discussion. Only 29 percent
of stories mentioned the next step in the litigation process in
the case.
Thus, the stories did not provide a high level of detail
about the legal process in the cases covered. In addition, the
analysis revealed that increasing the proportion of courtroom
footage used in a story did not significantly increase the
information given about the legal process.
In view of the foregoing, we suggest that the benefits of televised
coverage of courtroom proceedings are overrated (and are certainly far
outweighed by the detriments described above). Television news coverage
oftentimes appears simply to use the courtroom for a backdrop or a
visual image for the news story which, like many of such stories on
television, are delivered in short sound bites and not in depth.
The FJC study also reported that Court TV covered 28 cases under
the program and that C-SPAN covered 7 cases. However, it does not
appear from records available to us that these proceedings were
broadcast either in their entirety or continuously. The paucity of
cases selected by C-SPAN--seven in two years--suggests that the
tediousness, technicality, and sheer length of trials are obstacles to
comprehensive media transmission, except in the sensational kinds of
cases where the harms described previously are the greatest.
v. a better vehicle for public education
The federal judiciary acknowledges that more needs to be done to
improve the general understanding by the public of the federal
judiciary and its processes. We believe that this goal can best be
achieved by active federal judicial involvement. Federal courts have,
in the past few years, begun to play an active role in this area
through community outreach programs. Under the aegis of these programs,
thousands of students, teachers, and other members of the public have
come into federal courts to learn more about the federal courts and to
engage in dialogue with judges, attorneys and court personnel. National
initiatives to increase public understanding of the federal court
system are underway in pilot programs in two circuits. In addition,
over the last two years, the federal judiciary has conducted Law Day
programs for high school seniors, during which mock trials were
broadcast to 2,000 students at over 30 participating courthouses
nationwide.
Additionally, plans are underway for federal courts to assist
school personnel in planning curriculums designed to instruct about the
federal judiciary, culminating in court visits (or visits by judges to
schools). The positive results of these kinds of programs are self-
evident. We believe that it would be preferable to expend the monies
that would be necessary to support a cameras in the courtroom project
on these community outreach programs.
vi. conclusion
When almost anyone in this country thinks of cameras in the
courtroom today, they inevitably think of the Simpson case. I sincerely
doubt anyone believes that the presence of cameras in that courtroom
did not have an impact on the conduct of the attorneys, witnesses,
jurors, and judge--almost universally to the detriment of the trial
process. Admittedly, few cases are Simpson-like cases, but the inherent
effects of the presence of cameras in the courtroom are, in some
respects, the same, whether or not it is a high-publicity case.
Furthermore, there is a legitimate concern that if the federal courts
were to allow camera coverage of cases that are not sensational, it
would become increasingly difficult to limit coverage in the high-
profile and high-publicity cases where such limitation, almost all
would agree, would be warranted.
This is not a debate about whether judges would be discomfited with
camera coverage. Nor is it a debate whether the federal courts are
afraid of public scrutiny. They are not. Open hearings are a hallmark
of the federal judiciary. It is also not about increasing the
educational opportunities for the public to learn about the federal
courts or the litigation process. The judiciary strongly endorses
educational outreach, which could better be achieved through increased
and targeted community outreach programs.
Rather, this is a decision about how individual Americans--whether
they are plaintiffs, defendants, witnesses, or jurors--are treated by
the federal judicial process. It is the fundamental duty of the federal
judiciary to ensure that every citizen receives his or her
constitutionally guaranteed right to a fair trial. For the reasons
discussed in this statement, the Judicial Conference believes that the
use of cameras in the courtroom could seriously jeopardize that right.
It is this concern that causes the Judicial Conference of the United
States to oppose enactment of S. 721. As the Supreme Court stated in
Estes, ``[w]e 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.'' 381 U.S. at 540.
Mr. Chairman, thank you again for the opportunity to testify and
present these views. I will be pleased to answer any questions you or
the other members of the Subcommittee may have.
The Chairman. We will wait until the panel is done and then
we will ask questions.
Let me announce now, because I don't know who will be able
to come and not come, sometimes whether you have a large turn-
out or not much of a turn-out, we have questions in writing,
sometimes follow-up and sometimes a sole question. So we would
like to have those responses back in two weeks, if we could,
after today.
Now, Judge Gertner.
STATEMENT OF HON. NANCY GERTNER
Judge Gertner. Thank you, Senator Grassley. I am delighted
to be here and to speak in favor of the bill. I am in a
somewhat unique position because I am a Federal judge, but I am
speaking really on my own behalf.
I have to concede that opinions on my own court are
divided, but I strongly disagree with the position taken by the
Judicial Conference.
I come to this issue in really three capacities. As a
former litigator, I litigated Federal and State criminal and
civil proceedings for 22 years. I come as a sometime academic.
I teach at Yale Law School now, have taught at Harvard and BC.
And I come as a judge. I have been on the bench for 6 years.
As a litigator, I, in fact, was a participant in trials
that had had gavel-to-gavel coverage. Some were high-profile
cases. The last noteworthy case I tried involved Matthew
Stuart, who was the brother of Charles Stuart, who was accused
of killing his pregnant wife. But, in addition, I participated
as a litigator in lesser-known cases that Court TV covered
gavel to gavel.
I want to address two broad areas. I want to address why I
speak in favor of the bill first, and then I want to address
the concerns which I think are real but which I think can be
dealt with and which I think we have an obligation to deal
with.
Public proceedings in the 21st century means televised
proceedings. The meaning of ``public'' today is television. In
a study published over 20 years ago, it was reported that 54
percent of the American public indicated that they got their
news only from television. I believe that that figure is
probably dramatically higher today. In addition, the public is
enormously interested in and concerned about criminal justice
issues and how the courts are run.
At the same time, information about the courts--and I quite
agree with Judge Becker on this--is notoriously distorted.
Quoting from another judge who described what happens when you
see a reporter in your courtroom, he says, ``Often, I know that
the reporter had no idea what I was doing, what the judicial
system was about, what the language being used in the court
meant, what rights were being protected and advanced through
the legal system. Rarely do reporters''--he is talking about
print reporters--``have any expertise in the law. The vast
majority come from journalism or liberal arts schools, not law
schools. Covering cops and courts is usually an entry-level
position. Trained court reporters are a dying breed and
turnover is high.''
Now, I am not suggesting that putting sunshine through
television will necessarily obviate this problem. Obviously,
television reporters can edit the proceedings, take snippets
out of context, sprinkle it with inappropriate commentary. But
certainly gavel-to-gavel coverage, in which the people have an
opportunity to see the actual words of a participant, is
extraordinarily beneficial.
We have anecdotal evidence of that. Again, citing, as you
did, to the O.J. Simpson case, it was extraordinary to me as
both a litigator and a judge to listen to some of the comments
during the O.J. Simpson proceedings. There were people talking
about how they believed that O.J. Simpson was probably guilty,
but not beyond a reasonable doubt. It was a level of
sophistication about that concept that I frankly had not heard
in the voir dire that I regularly conduct of jurors.
In other words, having seen this gavel to gavel, they were
basically invited into a debate which was a very sophisticated
and very important debate. There were lots of problems with the
trial, but in terms of public education I thought it was
extraordinary.
I want to draw an analogy here. I had occasion recently to
visit a courtroom in one of the countries of the former Soviet
bloc. The proceedings were open, my host told me, and showed me
a courtroom. The courtroom was tiny. There was one bench for
the public. It was formally open, but practically speaking
public access was limited. We understand in this country that
making something public requires affirmative efforts on our
part, in a sense meaningful public access--courtrooms big
enough to include people who will be interested in the
proceedings, handicapped access, provision for the media.
What we are talking about here today is, in the 21st
century, meaningful access to the courts means television. The
point is a simple one. When the majority of Americans get their
information through a screen, when they are extremely
interested in the proceedings in our courtrooms, our obligation
to make the proceedings public has to include allowing
proceedings to be televised.
Now, I don't deny that there are important concerns that
the participants will somehow play to the audience, play to the
cameras. I think that it is overstated. To the extent that this
happens at all, I believe it is more a function of the fact
that many of the televised cases have been high-profile cases
in which the participants already know there is a larger
audience and already playing to the larger audience. It is also
not entirely clear to me that this is in some measure a bad
thing. If the judge understands that he or she is under
scrutiny and is therefore more careful, it seems to me that
that is an advantage.
In many jurisdictions, in addition, cameras in the
courtrooms are novelties, and so to some degree playing to the
larger audience is a function of the novelty of the technique.
It has to be of significance here and Federal courts, it seems
to me, have to pay attention to the fact that 47 State
jurisdictions have cameras in the courtroom, and that the
studies done of those jurisdictions have uniformly produced
favorable results.
And if the grandstanding and inflammatory concerns that we
have here didn't occur in those State proceedings, they
shouldn't occur in the Federal proceedings. The State courts
are dealing with rape and murder and child abuse, and they have
conducted this experiment over the past several years without
problems.
The second concern is the impact of televised trials on the
public, that this will somehow undermine the legitimacy of the
proceedings. And the data in this regard is mixed. On the one
hand, the public learns an enormous amount about trials. On the
other hand, there is a concern which actually has not been
expressed before here and was shared with me by Nina Totenberg,
of NPR.
She says that sometimes the people at home will believe
that they have heard all the testimony, that they have seen the
proceedings, that they have, in fact, heard all the testimony
from top to bottom when, in fact, they haven't. You watch the
proceeding on television, you take a bathroom break, you answer
the phone, you make popcorn, you miss critical testimony. Yet,
then when the outcome is inconsistent with what the home viewer
believes, the home viewer may then be cynical.
I think these concerns can be addressed. Attorneys and
judges have to work with the media to make it clear to the
public that their experience of the trial sitting at home in
their living room is not the same as the participants. More
real-time court coverage should be encouraged, not just of the
high-profile cases but of the ordinary cases. The more
sophisticated the public is, the easier this will be.
In any event, I think that the crisis of legitimacy is
greater if we, the Federal courts, are the only courts and one
of the few public proceedings not to be televised. The strength
of this bill, as others have stated, is that it enables a judge
to dovetail the television coverage to the case at hand, to
tailor the rules to the case at hand, and it seems to me that
that is a good thing.
I don't want to be Judge Judy. I don't want to wear a
frilly collar, harangue witnesses, make good television. I want
to be the Honorable Judge Gertner, to preside with dignity over
a courtroom where my words are understandable, meaningful, and
most significantly accessible to the general public.
In fact, I found a wonderful quote by Justice Harlan in
1965 from the Supreme Court which I think sums up my testimony.
Justice Harlan, in a case, in fact, reversing conviction
because of the circus atmosphere then created by television
which was very intrusive in a way that it is not today, said,
``The day may come when television will have become so
commonplace an affair in the daily life of the average person
as to dissipate all reasonable likelihood that its use in
courtrooms may disparage the judicial process.'' That day,
Senators, is here.
Thank you.
[The prepared statement of Judge Gertner follows:]
Prepared Statement of Hon. Nancy Gertner
I want to thank you for giving me this opportunity to speak before
you. I am strongly in favor of this bill.
Let me say at the outset, that I speak only for myself, and surely
not for the other judges of my Court. Opinion is divided on the issue
of cameras in the courtroom in my Court, as it is in other federal
courts around the country.
I come to this issue both as a judge and as a former litigator. I
was a trial lawyer for twenty-two years, representing clients in both
civil and criminal cases, in federal and state courts. Because
Massachusetts has had cameras in the courtroom for a considerable
period of time, I have had the privilege of participating in a number
of televised trials and other proceedings: A high-profile murder case
involving a battered woman accused of killing her abusing spouse in
Springfield, Massachusetts; a less well-known murder case involving a
young man accused of killing a neighbor in Natick, Massachusetts, and
my last case, the infamous case of Matthew Stuart, the brother of
Charles Stuart, accused of participating in an insurance scam. Charles
Stuart, as you may remember, was alleged to have killed his pregnant
wife.
I have been a judge for 6 years. During that period of time I have
presided over a number of cases which attracted media attention and
would have been televised had that option been available.
I would like to address two broad areas today. First, public
proceedings in the twenty-first century necessarily mean televised
proceedings. Television is the means by which most people get their
news. Moreover, at a time when polls suggest that the public is
woefully misinformed about the justice system, more information, and
relatively unmediated information, is better than less information.
Second, the concerns raised by the opponents of this bill are, to a
degree, misplaced. In any event, the disadvantages do not compensate
for the advantages. There is concern that the participants in televised
trials somehow skew their presentation because of the gaze of the
cameras. I believe that if such behavior occurs at all, it is a
function of two things: The fact that most of the televised trials are
high-profile cases, where the participants are already acutely aware of
the publicity surrounding them, and the fact that televised trials,
particularly in federal courts, are a relative novelty.
There is also concern that televised proceedings will somehow
undermine the legitimacy of our courts with the public. The data on
this is mixed. On the one hand, the public learns an enormous amount
from actually seeing trial proceedings. Given the strength of our
system, seeing it in operation can only bolster the public's
confidence. On the other hand, televised proceedings do give the public
an opportunity to second guess the jury, believing--mistakenly--that
they have seen all of the trial, that they are in the same position as
the jurors, when they are not. When the outcome is different than they
expected, they become cynical. As I describe below, I believe that
these concerns can be addressed by judges, by commentators, by
educators, and that, in any event, they do not outweigh the advantages.
On the first point: Public proceedings in the twenty-first century
necessarily mean televised proceedings. In a study published over
twenty years ago, it was reported that some 54 percent of the American
public indicated that they get their news from the television.\1\ I can
only assume that that number is substantially higher today. Information
about the courts--from whatever the source--is notoriously distorted.
Former Judge Thomas Hodson, for example, described the situation as
follows:
\1\ Thomas Hodson, The Judge: Justice in Prime Time, 87,92 (Winter
1992).
When I sat on the bench I always wondered about any reporter I
saw in my courtroom. Often I knew that the reporter had no idea
what I was doing, what the judicial system was about, what the
language being used in the courtroom meant, and what rights
were being protected and advanced through the legal system.
Rarely do reporters have any expertise in the law; the vast
majority come from journalism or liberal arts schools, no law
schools. Covering ``cops and courts'' is usually an entry level
position at newspapers and is subject to general assignment
reporting at television stations. Trained court reporters are a
---------------------------------------------------------------------------
dying breed. Turnover is high.\2\
\2\ Id. at 87.
I am not suggesting that the televising court proceedings
necessarily means accurate, unedited, undistorted coverage. Obviously,
television reporters can edit the proceedings, take snippets out of
context, sprinkle it with inappropriate commentary. But when they offer
the so-called ``gavel to gavel'' coverage, when people have an
opportunity to hear the actual words of the participants, I think the
result can only be beneficial.
Let me bring up a particularly controversial example, the O.J.
Simpson trial. That trial was credited with most of the backlash to
cameras in the courtroom, and with good reason. There was much to
criticize, much to be concerned about in the way the trial was
conducted and covered. But one thing was clear: More people were
talking about legal issues in more sophisticated ways than I, for one,
had ever heard. There were discussions on television, and in the print
media, as well as on the streets as to whether Mr. Simpson was
``probably'' guilty, but the government had not proved its case
``beyond a reasonable doubt.'' That distinction--the difference between
``probably guilty'' and ``proof beyond a reasonable doubt''--is a
sophisticated one. It was all the more telling given the fact that most
polls suggest that the majority of Americans harbor substantial
misconceptions about the criminal justice system--what ``beyond a
reasonable doubt'' means, who has the burden of proof, etc.
Let me draw an analogy here. I recently had the opportunity to
visit courts in a country in the former Soviet Union. Trial proceedings
were open, my hosts told me, but the courtrooms were small and had only
a single bench for the ``public.'' It was formally open to everyone,
but practically speaking, public access was extremely limited.
In this country, we understand that to make something public
requires affirmative efforts on our part--courtrooms big enough to
include the people who will be interested in the proceedings,
handicapped access, provision for the media, etc. Indeed, we are trying
to use our technology to enhance that access. The Federal Courts are
moving rapidly towards electronic case filing, enabling lawyers and the
public to get access to the written files through their computers. And
the public's interest in court proceedings is growing, not only for the
more bizarre and scandalous cases.
The point is a simple one: When the majority of Americans get their
information through a screen, our obligation to make proceedings public
has to include allowing those proceedings to be televised.
Now I want to address the very important concerns that have been
raised by opponents of this bill. First, there are concerns that the
participants will somehow ``play to the audience,'' distorting their
presentations because of the insistent cameras. To the extent that this
happens at all, I believe it is more a function of the fact that many
of the televised cases have been high-profile cases. In such cases, all
of the participants are already acutely aware that there is a larger
audience. The question is whether the presence of cameras materially
changes that, and in my experience, it does not.
Moreover, in many jurisdictions, cameras in courtrooms are
novelties. Whatever impact derived from their presence would surely be
lessened as time passes, as everyone becomes more and more used to
their presence. This is especially the case as the technology improves,
as cameras become less and less physically intrusive in the courtroom.
That has been the experience of the Massachusetts court system and
court systems across the country. There are cameras in the courtrooms
of forty-seven states. Numerous studies have been conducted by these
jurisdictions to test the impact of the cameras on the proceedings. The
results have been favorable--that televised coverage does not impeded
the fair administration of justice, does not compromise the dignity of
the court, and does not impair the orderly conduct of proceedings.
Indeed, the opposite is the case--that public education about the
system is greatly enhanced.
Second, there are concerns about the impact of televised trials on
the public, that televising the proceedings in fact undermines their
legitimacy with the public. I would be remiss if I did not admit that
this problem gives me pause as well. The public watches a televised
trial and believes that it is sitting in the shoes of the juror when it
plainly is not. The citizen will answer the phone, take a bathroom
break, make popcorn, and miss critical testimony. He or she is watching
the proceeding in their home, on their couch, relaxed, and without the
obligation to make any decisions about the case. The jurors sit in a
formal courtroom, the American flag at the front, and they are sworn to
be attentive, to be fair. They are instructed about their awesome
responsibilities; ideally, they have no other distractions. When the
jury's decision is different from the viewing public's decision, the
public may well become cynical about the system.
There is a wonderful moment in the movie, ``Twelve Angry Men'' that
illustrates the point. A juror is recounting the testimony of a
witness. The witness reported that he heard the sound of a body hitting
the ground on the floor above him. He then ran to the door, opened it,
and saw the defendant running down the stairs. The juror remembered
that the witness, an elderly man, walked with a limp to the witness
stand. The juror concluded that the witness' testimony about ``running
to the door'' was less than credible. The point was that there is a
difference between experiencing a trial within the four walls of a
courtroom and experiencing it through a television screen.
I think these concerns can be addressed. Attorneys and judges must
work with the media to make it clear to the public that their
experience of trials is not the same as the participants. More ``real
time'' court coverage should be encouraged, not just of the high-
profile cases but of the ordinary cases.
I believe that there will be a greater crisis of legitimacy were
this means of access to our courts through television to be denied.
More and more of our governmental proceedings are being televised. The
judicial system should not be excluded.
Finally, the strength of this bill is that it does not require
cameras, insist on them, encourage them. Rather it allows judges to
exercise their discretion to permit cameras in appropriate cases,
subject to fair limitations.
Senator Grassley. Thank you, Judge Gertner.
Judge Zobel, please proceed.
STATEMENT OF HON. HILLER B. ZOBEL
Judge Zobel. Well, here I am a State court judge having to
moderate, as it were, between disputing Federal judges. So if
Mr. Chairman and Senator Schumer will excuse me, I will not
express an opinion on the merits of S. 721. Let me share with
you some experience that I have had, namely 20 years of being
in a court system and trying cases before television.
My basic premise is that television cameras and still
cameras don't interfere with the proceedings any more than the
television cameras and the still cameras here interfere with
the proceedings. Witnesses, in my experience, tend to focus on
being witnesses and they very soon forget about the camera, if
they think about it at all. Lawyers, the same thing.
Now, some people say, well, it affects the way lawyers
handle the case; lawyers are natural showboats. Well, putting
aside the slander on our profession, let me say that in my
experience it is the judge who decides who is going to be a
showboat. And to the extent that showboating begins, the judge
has ample tools and presumably an ample temperament for dealing
with the showboats.
To the extent that the television camera makes the judge a
showboat, well, my experience has been that that doesn't
happen. And if it did happen, it seems to me it is not a bad
thing for the public to realize that here is a showboating
judge. That comes under the heading of what Judge Gertner
referred to as television making a judge better.
To the extent that a judge is conscious of the audience and
tries to perform in such a way that the audience will approve
of his conduct--I am not talking about his decisions; that is
something else--but approve of his conduct, that, I think, is
not a bad thing, but a good thing.
It seems to me that when you are talking about television
in the courtroom, you have to distinguish between what happens
in the courtroom and the use that the video information that is
gathered in the courtroom is put to outside of the courtroom. I
have serious questions about judges trying to control the use
of the information that is developed in the courtroom.
Newspapers cover a trial. Sometimes the reports are
accurate, sometimes they are fatuous, sometimes they are
inflammatory. Television, even without cameras in the court,
covers court proceedings. They have artists who draw wonderful
pictures and then the reporter who was sitting in the courtroom
talks about it.
Well, the newspaper reporter or the television reporter can
be quite, quite inaccurate, inflammatory, fatuous, and any
other derogatory adjective you care to apply. But that is not
our concern. Our concern is how things go in the courtroom, and
my experience has been that whatever use gets made of the
material out of the courtroom, a judge can control the court
and can ensure that the proceedings go the way they are
supposed to go.
I have difficulty, I have to say, in understanding how a
television camera makes things unfair because the one argument
that I have encountered--and I must say that I haven't
encountered it as a practical matter in Massachusetts because
even judges who don't much like trials by television agree that
television doesn't particularly cause any problems.
But the one potential difficulty is the jury, the idea that
jurors will watch the television, or that people who watch the
television will talk to the jury. Well, unless you are going to
lock up every jury--and nobody is recommending that--the way we
deal with the problem of outside juror influence is to tell the
jurors very severely, don't watch television, don't read about
the case in the newspapers, don't listen on the radio. And
nowadays we have to say don't try looking for it on the
Internet. And when the jury comes back in the morning, we ask
the jury have they obeyed the court instructions.
Now, that seems to me to be about as far as you can go, and
it seems to me to be effective. Jurors take very seriously a
judge's instructions not to talk about the case, and there is a
famous story in Massachusetts about a husband and wife. The
wife was a juror, the husband was not, and the husband said to
the wife, what kind of a day did you have in court today? And
she said, I am not supposed to talk about it.
We don't have problems in Massachusetts, though the judge
has authority to keep the cameras out, but he has to give
reasons. The presumption is that cameras will come in. The one
significant case where the cameras were kept out--and it was
only after an appellate judge approved to keeping them out--was
a case in which the defendant had given clear indication that
if the cameras were in the courtroom, he would use the presence
of the TV as a platform for espousing the views that had led
him to commit the homicides for which he was ultimately
convicted. There, the court was shut, but it was shut only
because of this overpowering reason.
Thank you.
[The prepared statement of Judge Zobel follows:]
Prepared Statement of Hon. Hiller B. Zobel
summary
Cameras, photographic and video, cause no problems in courtrooms.
Judges can control how anyone, including lawyers, behaves in court.
Use of video images out-of-court raises different issues, but they
are unrelated to the question of how (and if) cameras affect trials.
Cameras in court do not affect the conduct of trials or the
fairness of the results.
Massachusetts has since 1980 allowed cameras under a tightly-drawn
but camera-favoring rule, which mandates allowing coverage, whether or
not the parties agree, unless the judge can be persuaded that coverage
will create either a substantial likelihood of harm to any person, or
some other serious harmful consequence.
Mr. Chairman, and Members of the Sub-Committee: As a member of a
state's judiciary, I must necessarily ask you to excuse me from
commenting on the merits of proposed federal legislation. I am,
however, honored and pleased to respond to your request for my views on
the general subject of cameras in the courtroom. In doing so, however,
I must emphasize that I speak only as an individual, not on behalf of
the Massachusetts court system, the Superior Court, or any other judge.
Courtroom cameras have long been a subject of my professional
interest. To ensure now full disclosure of any possible bias, here what
trial lawyers call ``a little background.''
For several years prior to joining the Superior Court in 1979, I
was libel counsel to WCVB-TV Channel 5, Boston. In my Pleistocene
youth, I worked one summer as what in those gender-insensitive days we
called a ``copy boy'' for the San Francisco Chronicle and was, in both
college and law school, sports correspondent for the New York Herald-
Tribune.
Since becoming a judge, I have served as co-chair of the
Massachusetts Bar Association's Bench-Bar-News Committee and on the
``Fire Brigade,'' a group of judges and newspeople aiming to head off
potential court-media conflicts. I was also a member of the court-
appointed committee which drafted Massachusetts' rule governing
impoundment of court papers, and on a committee which reviewed privacy
and access rules concerning information about criminal convictions. I
now chair the Superior Court's Media Committee.
For five-and-a-half years during the 1980's, the Christian Science
Monitor carried my monthly column, ``Judging the law.''
In 1998, the American Bar Association appointed me to the National
Committee of the Bar and Members of the Media, which meets thrice
annually to exchange views and address media-court problems. I serve on
the Advisory Board of the Donald W. Reynolds National Center for Courts
and Media at the National Judicial College/University of Nevada.
I have spoken about cameras in the courtroom and high-visibility
trials at two national symposia sponsored by the College and the
Reynolds Center; at one sponsored by the First Amendment Center of
Vanderbilt University; at one sponsored by the National Conference of
State Trial Judges; at one sponsored by the American Conference of
Trial Judges; and at one during the 1998 annual meeting of the
Associated Press Managing Editors.
I was one of the advisors to the National Center for State Courts
when the NCSC revised its handbook on the management of high-visibility
trials.
Finally, I have conducted trials ex camera as it were, with juries
and without, in the years since 1980, when Massachusetts began
permitting the practice.
Briefly put, I do not believe that the courtroom presence of a
camera--video or still--in any way interferes with or, indeed, affects
to any degree the decorum of the proceedings or the fairness of the
outcome. In my experience, participants ignore the equipment and its
operator, concentrating instead on the job at hand.
When cameras first came in, many people feared that lawyers would
inevitably play to the video audience. That has not happened in any of
my trials; discussion with Massachusetts colleagues (even those who
dislike the practice) suggests that my experience is typical. The
reason is simple: the lawyers and witnesses know that at the first sign
of inappropriate behavior, the judge, possessing ample conventional
means of maintaining order, would certainly do so.
We all must, however, emphasize the vital distinction between the
presence of the camera in court and the use that society makes of the
images the camera produces. Failure to recognize the difference has, I
believe, caused much of the judicial antipathy toward the visual media.
Admittedly, an appetite for profit inspires the desire to televise
court proceedings. That is hardly a disqualifying defect.
It is also true that televising trials provides an inexhaustible
pool of commercial diversion. This fact is irrelevant to the present
issue. Historically, Americans have always regarded trials--
particularly criminal trials and scandalous domestic litigation--as
prime sources of voyeuristic recreation. Television merely expands the
audience. Photographic cameras do not change the existing equation; the
public now views photos instead of artists' renditions.
Another criticism focuses on the distorted view of the judicial
process which televising a trial produces. This is a valid comment,
raising a serious issue. The nature of television news broadcasting
requires compressing a whole day's courtroom activity into perhaps one
minute. Moreover, because television is such a visual, drama-oriented
medium, what appears during the newscast may not be the most important
even in terms of the trial and its eventual outcome. Nonetheless, the
viewer begins to feel like a true spectator and to form judgments
which, though resting on partial information at best, encourage an
inappropriate certitude. Thus someone who has seen only a fraction of
the evidence, nonetheless tends unconsciously to assume judgmental
competence equal to the jury's.
Continuous ``gavel-to-gavel'' coverage does not solve the problem.
First of all, very few people actually watch the entire proceedings.
Boredom, hunger, the exigencies of daily life, telephone calls, and
bodily demands all conspire to interrupt. Second, even to someone
viewing everything, the screen only shows what the camera sees; that,
as anyone who has spent time in a courtroom knows, omits a great deal,
besides implicating the often considerable difference between a
witness' on-screen image and appearance in-the-flesh.
Third, a trial analogizes naturally to a sports event, with its
shift of advantage and disadvantage, its focus on winning, its ready
susceptibility to prediction, analysis, and second-guessing. This
surface similarly, combined with television's need never to allow
silence or a blank screen, stimulates a kind of play-by-play approach,
larded with endless dollops of ``color'' commentary, the whole display
thereby turning courtroom coverage into a parody of sports
broadcasting.
This can lead to downright silliness. One one occasion, during a
high-visibility trial, the hostess at a party I was attending turned on
the television set just in time to hear three distinguished
Massachusetts lawyers solemnly forecasting the next day's events.
``Here's what Judge Zobel is certainly contemplating,'' said one.
``Judge Zobel surely is considering thus-and-so,'' said another.
``Judge Zobel has got to have this on his mind,'' said the third.
Meanwhile, the real Judge Zobel, I happen to know, was sitting on the
sofa, not thinking any of the above.
All this would be harmless enough, except that over time,
television tends to impose on the public a skewed view of a complicated
subject: the administration of justice. Throw in the idiosyncratic
behavior of Judge Judy and her imitators, and you convey to the
community the idea that rendering justice is nothing more than an
esoteric game umpired by zanies in black robes.
I have discussed this aspect of cameras in the court precisely to
show that the camera per se has very little to do with how the public
uses the images the camera transmits. More to the point, even though
judges may--as I do--deplore and even condemn the foolishness,
vapidity, and error that television thrives on, keeping cameras out of
courts is not the way to bring the public to a more intelligent
appreciation of what the administration of justice means and needs.
Even if by excluding the camera we could ensure enlightenment
(which, of course, raises the paradox of seeking to educate by denying
information), I have serious doubts whether in our society judges
should be easily assume the role of Public Improvers. Even assuming
their competence to do so, it seems to me that judges have enough else
to do.
Judges are public servants, performing public functions under a
long-standing tradition of openness and visibility. This necessarily
requires us to experience public heat. To say that we will not expose
ourselves to wider viewing leads to a kind of elitism that even a non-
elected judiciary (which, I am happy to say, includes my state's
judges) needs to avoid.
In Massachusetts, the authority for cameras in court is entirely
judge-made, a rule promulgated by the Supreme Judicial Court, which,
acting as a body, oversees our entire judicial system. The rule, the
text of which is appended to this statement, has been in place since
1980. It resulted from the intense work of a consultative committee,
chaired by a Superior Court judge, but including other jurists and
representatives of the media and the Bar.
The rule does not seek to regulate the use of cameras outside the
courthouse, indeed, outside the courtroom. Public streets and public
spaces are, in Massachusetts, not subject to judicial control vis a vis
photography and televising. To the extent that these impinge on such
activities as jury viewing of an out-of-court locus, the court retains
common-law authority to prevent interference. That power extends to
keeping the camera at an appropriate distance. We have developed an
advisory protocol for judges' guidance, a copy of which is appended to
this statement.
In the courtroom, Massachusetts judges must allow cameras operated
``by the news media for news gathering,'' absent certain narrowly-
defined conditions.
The first is the substantial likelihood of (a) harm to any person;
or (b) other serious harmful consequence.
Determination of the risk and assessment of both the likelihood and
the harm rests exclusively with the trial judge. Even unanimity among
the parties cannot preclude coverage.
``Harm'' has been interpreted to mean not the mere possibility that
the coverage will improperly influence the jurors, but rather a serious
specified risk of significant injury (not necessarily physical injury)
to an individual, or significant impairment of defendant's right to a
fair trial.
The trial judge must make explicit findings justifying any
abridgement of coverage, and cannot limit cameras more strictly than is
necessary to eliminate the anticipated harm.
In the most prominent case denying coverage, the trail judge
concluded that were cameras present, the defendant, accused of
murdering employees of two abortion clinics, would ``use the
proceedings as a forum to air his views on abortion and other issues.''
The judge can also preclude televising certain pre-trial matters
where coverage might affect the poll of potential jurors. These include
motions to suppress evidence; motions to dismiss; probable cause
hearings; evidentiary voir dire; and jury selection voir dire. As to
the latter, although Massachusetts does not permit lawyer voir dire,
the judge in certain situations must question each prospective juror
individually. This issue arises quite frequently in high-visibility
cases.
Whenever either a party or one of the media raises a question about
coverage, the rule establishes a mechanism for hearing, notice, and
determination, using the Associated Press Bureau in Boston as the
clearing house for notice.
The rule strictly governs the mechanics of coverage: no more than
one photographic camera and one video camera, both mechanically silent.
The judge is not required to arbitrate any intra-media dispute as to
pool representation; if the organizations cannot agree, all cameras
stay out. To my knowledge, this has not yet happened. In any event, the
judge is expressly forbidden to give anyone an exclusive right to cover
the proceedings.
Although the rule does not say so, the equipment must only use
``available light,'' without flash bulbs or floodlights. Camera
operators may not move unless the court is in recess. They may not
photograph or televise closeups of bench conferences, conferences
between counsel, or counsel-client conferences. Frontal and close-up
photography of the jury is likewise normally forbidden.
In summary, one may safely say that during the 20 years of its
existence, the Massachusetts rule--as improved from time to time--has
worked well. It has, as interpreted, led to a balancing of interests
and to a modus vivendi that has served the public well, protecting the
essential values of free press and fair trial.
massachusetts supreme judicial court
Rule 1:19 Cameras in the courts
A judge shall permit broadcasting, televising, electronic
recording, or taking photographs of proceedings open to the public in
the courtroom by the news media for news gathering purposes and
dissemination of information to the public, subject, however, to the
following limitations:
(a) A judge may limit or temporarily suspend such news media
coverage, if it appears that such coverage will create a substantial
likelihood of harm to any person or other serious harmful consequence.
(b) A judge should not permit broadcasting, televising, electronic
recording, or taking photographs of hearings of motions to suppress or
to dismiss or of probable cause or voir dire hearings.
(c) During the conduct of a jury trial, a judge should not permit
recording or close-up photographing or televising of bench conferences,
conferences between counsel, or conferences between counsel and client.
Frontal and close-up photography of the jury panel should not usually
be permitted.
(d) A judge should require that all equipment is of a type and
positioned and operated in a manner which does not detract from the
dignity and decorum of the proceeding. Only one stationary,
mechanically silent, video or motion picture camera, and, in addition,
one silent still camera should be permitted in the courtroom at one
time. The equipment and its operator usually should be in place and
remain so as long as the court is in session, and movement should be
kept to a minimum, particularly, in jury trials.
(e) A judge should require reasonable advance notice from the news
media of their request to be present to broadcast, to televise, to
record electronically, or to take photographs at a particular session.
In the absence of such notice, the judge may refuse to admit them.
(f) A judge may permit, when authorized by rules of court, the use
of electronic or photographic means for the presentation of evidence,
for the perpetuation of a record, for other purposes of judicial
administration, or for the preparation of materials for educational
purposes.
(g) A judge should not make an exclusive arrangement with any
person or organization for news media coverage of proceedings in the
courtroom.
(h)Any party seeking to prevent any of the coverage which is the
subject of this Rule may move the court for an appropriate order, but
shall first deliver written or electronic notice of the motion to the
Bureau Chief or Newspaper Editor or Broadcast Editor of the Associated
Press, Boston, as seasonably as the matter permits. The judge will not
hear the motion unless the movant has certified compliance with this
paragraph; but compliance shall relieve the movant and the court of any
need to postpone hearing the motion and acting on it, unless the judge,
as a matter of discretion, continues the hearing.
(i) A judge entertaining a request from any news medium pursuant to
paragraph (e) may defer acting on it until the medium making the
request has seasonably notified the parties and the Bureau Chief or
Newspaper Editor or Broadcast Editor of the Associated Press, Boston.
(j) A judge hearing any motion under this rule may reasonably limit
the number of counsel arguing on behalf of the several interested
media.
Proposed guidelines for media relations during a view
1. If you have a trial in which you anticipate a jury view which
video cameras or still photographers may want to cover, conduct a brief
conference beforehand (in the courtroom, if possible; at the scene, if
necessary) with the media representatives who are covering the in-court
proceedings.
2. Bear in mind that a judge cannot forbid photography in a public
place or a public street.
3. Request that no reporter, camera operator, or photographer come
within 20 feet of any participant in the view, including judge,
counsel, court reporter, parties, and jurors.
4. Request that no juror's face be the subject of any picture,
still or video.
5. Request that reporters, operators, and photographers communicate
only with court officers, not directly with any participant in the
view.
6. Instruct court officers to relay to the judge immediately every
communication from any media person.
7. Consider informing jurors beforehand (a) that media reporters,
video, and cameras may be present during the view; and (b) that you
have requested that they take no recognizable pictures of the jurors.
Senator Grassley. Well, thank you very much. I am going to
start with Judges Gertner and Zobel.
If you want to make your opening statement, go ahead.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. OK, well, thank you. I am not Judge
Gertner, but I want to thank the panel for being here and my
good friend, Chuck Grassley, for having this hearing. I told
the chairman that we had just come back from a family vacation,
part of which was to drive through rural Iowa, something I have
always wanted to do. And one end of the State to the other,
they lauded Chuck Grassley, and deservedly so.
So I thank you, Mr. Chairman, for having the hearing. The
issue of cameras in the courtroom is something that you and I
both care about. I hope this hearing will ultimately lead to
imminent and effective legislative action.
The principle that has always guided me in this issue and
what led me to get involved in it is very simple. I believe
that public exposure of the processes of government is
virtually almost always in the public's best interest. As Judge
Brandeis presciently wrote in 1933, ``Sunlight is said to be
the best disinfectant. Electric light is the most efficient
policeman. It has always been my view that when the people of
this Nation watch their Government in action, they come to
better understand how our governing institutions work and equip
themselves to hold those institutions accountable for their
deeds. If there are flaws in our governing institutions,
including our courts, we hide them only at our own peril.''
Justice Brandeis not only extolled the benefits of shining
light on Government. He also wrote that the States should be
prized as laboratories for policy experiments. In the case of
cameras in the courtrooms, I think it is safe to say that the
States have successfully experimented with them and found them
to work. Indeed, 48 States now have some form of audio-visual
coverage in their courtrooms, and at least 37 televise trials.
Studies and surveys conducted in many of those States have
confirmed that electronic media coverage of trials has enhanced
public understanding of and confidence in the court system,
without interfering with the administration of justice. In my
home State of New York, the State courts experimented for 10
years with televising trials, during which time four reports
were issued, all recommending that the televising of trials be
made permanent.
The most recent report by a legislatively-appointed
commission concluded, after extensive study, research and
surveys of all participants, that, among other things, one, the
presence of cameras did not interfere with the administration
of justice. Two, cameras in the courtroom enhance public
scrutiny of the judicial system. Three, television coverage
enables the public to learn more about the workings of the
justice system. Four, television coverage has drawn the
public's attention to major societal problems like domestic
violence and child abuse. And, five, openness and public access
to trials afforded by television works as a safeguard, not as a
threat to defendant's rights. In fact, the commission's
research revealed not a single appellate decision overturning a
judgment, verdict, or conviction based on the presence of
cameras at trial.
Finally, six, although television coverage at times could
show the judicial system in an unfavorable light, it is not a
detriment but rather than opportunity to improve the judicial
system.
The most recent New York experience with cameras in the
courtroom was at the recent trial of four police officers in
the shooting death of Amadou Diallo. The trial had been moved
from the Bronx to Albany, but the judge wisely in the case
permitted live TV coverage, which allowed anyone who was
interested to watch the entirety of the trial, whether they
lived in the Bronx or anywhere else.
The televising of that trial, which I can tell you aroused
strong passions in my city and my State, was not disruptive.
The lawyers acted professionally and the rights of the
defendants were not curtailed. Witnesses and jurors were not
intimidated by the single camera in the courtroom. In my
opinion, the public was done a great service by the judge who
allowed them to watch the courtroom processes for themselves.
In fact, the benefits, especially the educational benefits,
remain because anyone can go on the Internet at any time and
watch a portion of the proceeding and really see for themselves
what the evidence was and how the lawyers and judges handled
their respective roles.
Judge Teresi's opinion in the Diallo case was a brave one.
He opened up his court for all of the public to see a
proceeding that was going to be heavily scrutinized and,
regardless of the outcome, criticized. But that is just the
point. By letting the public in, he ultimately bolstered the
integrity of the system itself.
I had hoped to bring Judge Teresi here as a witness, but
the scheduling didn't allow it. But here is what he wrote in
his opinion, ``The quest for justice in any case must be
accomplished under the eye of the public. The denial of access
to the vast majority will accomplish nothing but more
divisiveness, while the broadcast of the trial will further the
interests of justice, enhance public understanding of the
judicial system, and maintain a high level of public confidence
in the judiciary.''
Thank you, Mr. Chairman.
Senator Grassley. Thank you.
Senator Specter, we have had the first panel. You can have
your opening statement now.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman. I
regret not being able to be here sooner. We had the Ford-
Firestone hearings this morning and that has put everybody back
quite a ways with a session which lasted for more than 3 hours.
I wanted to come down and greet the witnesses and to make a
comment or two on this very important subject, and especially
to welcome Chief Judge Becker of the Court of Appeals for the
Third Circuit, and Judge Gertner and Judge Zobel as well. Judge
Becker and I went to college together, although he was only a
freshman when I was a senior. Then we went to law school
together and we have been friends ever since, and I have
watched his very illustrious career. This subcommittee is
fortunate to have this expert panel.
I saw Judge Becker's statement this morning and I weighed
it. I know his position on this important subject, and I wanted
to come down and say a few words about the panel, about Chief
Judge Becker, and also about the subject, if I may.
Senator Grassley. You may right now.
Senator Specter. Thank you, Mr. Chairman.
I know the sensitivity of the Federal courts about
television, and I have some idea of the impact of television on
the way lawyers--I guess ``perform'' is the right word, and
perhaps even the way judges perform, and maybe even witnesses,
too.
I believe that greater public knowledge of our court system
is really very, very important, and I know from talking to
Judge Becker that the judiciary sees it differently and his
testimony is to the contrary. It is a matter of having enough
television exposure so that there is really an idea as to what
goes on in a trial courtroom. That is not easy because it is a
long process and it is hard to get a sound bite and to
understand what is happening.
Similarly, it is hard to get a sound bite of what happens
in the Senate. If you just tune into the Senate, it is hard to
find out what happens in a very brief period of time. But I
have found that there are a lot of people who watch C-SPAN I
and II, including some of the parts which are not exactly
scintillating. Judge Becker comments about some of the court
proceedings being on at 3:00 a.m., and I was surprised to hear
that because I thought I had that time reserved for myself, for
the insomniacs at 3:00 a.m.
I am hopeful that your legislation will move forward,
Senator Grassley, Mr. Chairman. I have been considering for
some time legislation which I am in the final stages of
preparing. And it may sound a little abrupt on the surface, but
I believe that U.S. Supreme Court proceedings ought to be
televised.
I believe there ought to be public understanding, not a
greater public understanding, just a public understanding,
because there is virtually none at the present time as to what
the Supreme Court of the United States does. It has been a
wonderful institution; it has earned its spot as the number one
branch of Government. When the Framers drafted the
Constitution, it came under Article III. Congress came in under
Article I. I don't even know that Congress would be Article III
if the framers rewrote the Constitution.
After Marbury, the Supreme Court has the final word, and
without going through the long line of decisions, the Supreme
Court decides all the important questions, all the cutting-edge
questions. They don't come to the Congress, they come to the
Court. When life begins, pro-life, pro-choice, death penalty,
assisted suicide, you name it--the Supreme Court decides these
matters.
I am amazed from time to time. The Washington Post Sunday
section lauded the Court as not having an agenda. Now, that is
not the U.S. Supreme Court I know. You take what has happened
on the tax cases, on States' rights cases, patents and
trademarks, and what has happened with the Court invalidating a
great many congressional decisions on the ground that we
haven't thought them through, haven't given sufficient
consideration. I hadn't understood that was a basis for
declaring acts of Congress unconstitutional.
I understand when it is at variance with the Constitution
or you can pick out the Due Process Clause and construe it in a
way, or the Equal Protection Clause or some of the other
flexible clauses, but not that Congress hasn't thought it
through or that we haven't given sufficient consideration. I
think it is true that we haven't given consideration much of
the time, but I don't think that is up to the Court to say. Who
is there to say that the Court has given adequate
consideration?
So I have been relatively brief, Mr. Chairman. You may not
believe that, Senator Schumer and my colleagues, but we are all
used to one another. Senator Grassley and I have sat together
on this committee for 20 years, and Senator Schumer is only a
recent addition to the committee but was in the House for many,
many years.
This business about television is very, very important, and
public education and public understanding is very important. I
hope we can find a way to persuade the circuit courts and the
district courts to open up the television line. What I am
talking about on legislation is the Congress taking the bull by
the horns and legislating the opening up of the Supreme Court,
and that involves some very delicate questions as to our
authority to do that.
I believe we do, under speedy trial rules or under our
ability to create and expand the courts--if the Congress chose
to do so, more than nine members or less than nine members--or
setting jurisdiction of the Court. McCardle says we can even
deal with constitutional issues. I don't think that is right,
but Congress has very substantial authority. Whatever we do,
the Supreme Court will have the last word, but I think we ought
to tell the American people as best we can what goes on in our
courts.
Congratulations to this very distinguished panel, and thank
you, Mr. Chairman, for your courtesy.
Senator Schumer. I was just going to thank Judge Specter
for his erudition. [Laughter.]
Senator Grassley. Our bill does apply to the Supreme Court,
but it does not mandate that the Supreme Court be open to
cameras, as it allows it in all instances up to the judge.
Senator Specter. Well, I think there is a sound basis for
what you have done here, Senator Grassley, Mr. Chairman, and I
think that is a start. It may be the way to begin, but we will
have some lively discussions and some lively debates. I commend
you for your legislative activities, and Senator Schumer, and
for moving ahead here.
I will have to ask to be excused because I don't have to
tell you how complicated the schedules are, but I did want to
come and say hello.
Thank you.
Senator Grassley. Thank you very much, Senator Specter.
We will ask questions now of this panel.
Judges Gertner and Zobel, last year Judge Harvey
Schlesinger testified before a House subcommittee on this
matter. He said, ``The Judicial Conference, after experimenting
with and studying the effects of the presence of cameras during
Federal civil proceedings, determined that the potentially
intimidating effect of cameras on some witnesses and jurors was
cause for considerable concern. Because the paramount
responsibility of a U.S. judge is to guarantee citizens a right
to a fair and impartial trial, the Conference concluded that it
was not in the interests of justice to permit cameras in the
Federal district courtrooms.''
Now, in the meantime we have changed the legislation to
allow that faces and voices of witnesses be obscured, which
would address most of Judge Schlesinger's concerns. I have seen
the Federal Judicial Center's report on the pilot done in the
early 1990's. The report, while pointing out some concerns, is
favorable toward cameras in the courtrooms.
The Judicial Conference, according to Judge Becker,
believes that our bill would have adverse effects on court
proceedings. He has stated, ``We believe that a witness telling
facts to a jury will often act differently when he or she knows
thousands of people are watching.''
So, Judge Gertner and Zobel, how do you respond to the
arguments that S. 721 won't protect a defendant's right to a
fair trial? We have had 20 years of experience in State courts,
which handle over 90 percent of the criminal cases, and it
appears to me that these fears have proven to be unfounded. So
I would like to have each of you respond.
Judge Gertner. I think that the anecdotal data that the
cases that I indicated I had participated in as a lawyer--I was
a criminal defense lawyer and understood that having cameras in
the courtroom could have a potential impact, but never felt--
and was, I think, as zealous a guardian of my client's rights
as there was--never felt that that was a basis for seeking to
have them excluded.
I also think that, as I said, the meaningful data is--it is
extraordinary that we should ignore the Federal Judicial
Conference and we would ignore the data from the State courts,
where fairness has not been a problem, where the data for the
most part suggests that the proceedings have been dignified and
that the judges have perceived them to be fair. And this is now
the State courts across the country.
I think that the data from the Judicial Conference pilot
program describes some discomfort of some judges in some of the
findings that you indicated. But the overall balance of the
report was in favor of the continuation of the experiment,
notwithstanding that. So the data from the State courts,
anecdotal data in my own life as well, and the bottom line--not
the reservations expressed, but the bottom line of the pilot
program in the Federal courts suggests that these concerns were
not material.
You have to deal with witness intimidation as a judge, with
the cameras or without, potential threats, witnesses'
reservations. And we deal with it, and I don't think that it is
a material difference between having televised proceedings
versus not.
Senator Grassley. Judge Zobel.
Judge Zobel. I can't comment on the virtues, or the
reverse, of S. 721. I will say that in the State courts, we do
not tend to get many gang-type, mafia-type, organized crime-
type cases. We do, however, get a great many rape cases, and
the need for the reasonable privacy of the witness, I think, is
dealt with by the mechanical means available for blanking out
the witness' face.
With respect to the identity of the witnesses, that is
revealed in court without a camera. Reporters just have to take
the names down. To the extent that we are talking about
revealing witnesses' identities, I can't speak for any other
court system, but in Massachusetts our rule is that the camera
cannot take any close-ups of the jury; that is, any pictures
that would identify the jurors facially. So I don't think,
based on my experience, that this is a problem that is
disqualifying.
Judge Becker. Can I respond?
Senator Grassley. Yes, you can, and then I wanted to ask
you a question.
Judge Becker. I will try to do this quickly, both on the
State level and then on the Federal level. First of all, there
have been a lot of very broad statements made here about the
State experience, the suggestion that this is enormously
widespread in State courts. The FJC study, which incidentally
was not approved by the Conference--the recommendation was a
staff recommendation that was never approved and which is at
odds with the specific findings. They studied the State court
experience.
We have heard a lot about this generally favorable State
court experience. First of all, if you study the State court
pattern, it is an extreme patchwork quilt. Many of the States
don't permit it at all. Most of the States permit it in very
limited circumstances. It may be vetoed by a witness, it may be
vetoed by an attorney. It is not nearly as widespread as has
been intimated here.
Second, we have heard a lot of general approval, but we
have not encountered a study of a State court experience with
the specificity of this FJC study. Now, the FJC study was
responded by a bunch of Federal judges and lawyers, a pretty
high-class group, I submit, and they made specific findings
about nervousness of witnesses in significant numbers, 30, 40
percent; that to some extent witnesses were nervous, were less
willing to testify; that cameras distracted the witnesses, the
attorneys. The juries were disruptive; extraordinary
theatricality; importuning by the exit interviews of their
friends saying, hey, I saw you in this case; affecting judges,
affecting witness privacy.
I submit to you, Mr. Chairman and Senator Schumer, that
these are very significant factors, and that this FJC study,
notwithstanding a generally positive recommendation by staff
which was not accepted by the board--it was never submitted to
the board; I was a member of the FJC board at the time--and
which was rejected by the Conference, belies the general
representation as to the experience.
And, of course, as I have also said, the game is not worth
the candle. We cannot compromise. We are not talking about a
constitutional issue, a violation that rises to a
constitutional level. We cannot countenance any degree of
unfairness if we are to be faithful to the mission. And the
suggestion by the other panel members that the good outweighs
the bad is not an allowable balance, I submit.
Senator Grassley. I am going to quote from page 7 of the
1994 FJC evaluation of these pilot projects. On page 7, summary
of findings: ``Results from State court evaluations of the
effects of electronic media on jurors and witnesses indicate
that most participants believe electronic media presence has
minimal or no detrimental effects on jurors or witnesses.''
I am going to go to a question now for you, Judge Becker.
You brought up the issue of security, potential harm by
terrorists or others to harm judges, witnesses, other
participants. I see it as kind of a ``sky is falling''
argument. We have had State courts handling some very high-
profile cases. Members of Congress have taken high-profile
positions against terrorists. Obviously, we have to balance
competing goals here, just like we do in hundreds of other
areas. We could close the courts or we could close the Congress
to be perfectly safe, but we are not going to do that.
So if a presiding judge really believes that cameras would
be a security risk in a particular case--and when we are
talking about this bill and the Federal courts, we can decide
not to have the cameras. Our bill gives total discretion to the
presiding judge, so the judge is in charge of the courtroom.
I want you to comment.
Judge Becker. Terrorism is not something you can predict,
Senator Grassley, but the fact of the fact is that in recent
years terrorism has been directed against Federal facilities
and in some respects Federal courts. The Federal courts, unlike
the State courts, are the emblem of national sovereignty that
disaffected people want to act against. It is not necessarily
in a specific or individual case. It is just the general symbol
that is out there.
Now, I am not going to suggest to you that I can predict
that it will happen in any given instance, but it is a matter
of very great concern. It is a matter of concern not only to
the Federal judiciary, but the United States Marshals Service,
and I just think it is a factor to weigh in the balance.
Senator Grassley. I have one more question of this panel
and then I will turn to Senator Schumer.
Judge Zobel, some argue that cameras sensationalize cases
and that attorneys play to the cameras, which affects the case.
You have had experience with lawyers trying to control the
courts. I think you have indicated that it is really up to the
judge.
Could you relate the experiences you have had preventing
lawyers from controlling the courts?
Judge Zobel. Well, one technique is to look over the tops
of my glasses and not say anything. Another is to make it
clear, not explicitly but just by general approach to the
business of the trial, that we are all here to focus on the
trial.
I have to say that I have only had one experience where the
lawyer kicked the traces, and after he overlooked a couple of
less strong hints, I called him the side bar and I told him in
non-profane but unmistakable language that this wasn't going to
go on anymore. And for the rest of the trial, everything was
peachy.
Judges are paid to keep order in courts. Sometimes they use
gavels, sometimes they raise their voices. The late Judge
Julian of the Federal court in Boston had a wonderful technique
of just standing up and spreading his arms. And when you saw
that figure with the black robes extended, it looked like
Batman come into the courtroom and it kept everybody right on
the line.
Senator Grassley. I now turn to Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman, and I appreciate
everybody's testimony and effort here.
I guess the first question I have for Judge Becker is the
bill that the House passed recently requires the consent of all
parties before cameras would be allowed. I guess this is a two-
part question. Why doesn't leaving it in the discretion of the
judge, and certainly why wouldn't a provision that required the
consent of all parties before cameras were allowed in the
courtroom deal with the concerns that you brought up?
Judge Becker. Well, leaving aside the very practical
problem, Senator Schumer, that I think you are rarely going to
get the consent of all parties, there are two further
considerations. First of all, you never know what is going to
happen in a trial. Second, I think you either have a policy or
you don't have a policy, and it strikes me that leaving it to
the discretion of individual judges, you are going to have a
lot of inconsistent results and a lot of tension and all the
rest of it.
But the bottom line, the baseline point is that even if
everybody consents, if these findings that are in the FJC
report, which I think are highly credible, are true, you have
an impairment of the process. And what do you get for it? What
you get for it is 56 seconds, tops, on the nightly news, one-
third of which is trial footage. The game is not worth the
candle.
What you are getting for it if you are doing a balancing,
which my statement suggests is not allowable because we can't
allow any unfairness to creep into a trial--what you are
getting for it is 56 seconds, tops, really 33 seconds on the
nightly news. The courtroom is just a backdrop, and if you have
the cable operators, what you get is little smidgens
interspersed with commentary and commercials.
Indeed, I spoke to one of the Ninth Circuit judges whose
arguments were televised and I said, tell me what kind of
feedback do you get. He said, well, I had a friend who was up
at 3:00 a.m. He said it was a wonderful education for
insomniacs. But I mean gavel-to-gavel coverage is
extraordinarily rare. What you get out of this is a lot of
nothing. What you get out of it is 56 seconds on the nightly
news, and from time to time you get portions of the trial
interspersed between commercials and commentary, and the game
is not worth the candle.
Senator Schumer. Just a follow-up. You heard my comments
about the Diallo case in Albany. You didn't get 56 seconds on
the nightly news. You got that, but in addition you got the
trial fully available on cable for people. In addition, what
you really got was that everyone had the opportunity to see
what was going on in the courtroom. Here, you had a venue
change that many people were extremely upset with, and it
punctured, or at least allayed the fear that people had and did
a great service.
So I think when you are saying 56 seconds of nightly news,
that may occur sometimes. But when it is all open to the
public, when it is all open to cameras, that is not always
going to be the case. I mean, I can't tell you the amount of
good that Judge Teresi did by allowing cameras in the court
there, but it was significant. I could paint for you a parade
of horribles that might have occurred had he not been allowed
to do that, and it was again solely in his discretion.
Judge Becker. I did not see that and I am not familiar with
it, but the 56 seconds I talk about was the result of a study
of all of the media takes and out-takes and media use of 3
years of a pilot project. Now, of course, it depends on the
case.
Senator Schumer. That is an average, I presume.
Judge Becker. That is right. The case that you describe----
Senator Schumer. That is like saying every American makes
$39,311.
Judge Becker. No, but the case that you describe is a
rarity. The TV nightly news does not allow itself--I mean, just
analyzing, it isn't going to allow itself more than 56 seconds.
So if you eliminate that, which is maybe 90 percent of it, the
question then is the cable operators.
Now, once in a blue moon you are going to get a trial like
the Diallo trial. The Diallo trial might have been a good
example. The Simpson trial was not. The judges in the Eastern
District of Pennsylvania who participated in this experiment
tell me that in terms of the selection of cases, they wanted
the sexy cases. They didn't want the cases where maybe there
was more public policy.
An example was a products liability case where the question
was whether a major automobile manufacturer wanted to save 8
cents on an item and somebody was killed. That was not the
subject. There is going to be a rare case like that, but I
submit to you, Senator, that more often than not you may have a
Simpson effect in that kind of a case.
And even though that case seemed to go down OK, the only
thing I can tell you is these studies by a bunch of very
responsible Federal judges, every one of whom was confirmed by
the Senate Judiciary Committee so they must have been pretty
good--this study shows these kinds of effect, and I read them
before, on theatricality and disruption. We are dealing with a
policy decision, and as a policy matter we think we ought not
to go that route.
Senator Grassley. Judge Zobel.
Judge Zobel. Thank you, Mr. Chairman and Senator Schumer.
Could I ask if the Federal experiment included criminal cases,
or was it just civil cases?
Judge Becker. Just civil, not criminal.
Judge Zobel. Well, that probably accounts for the 56
seconds, I would think. There are very few civil cases that
draw much attention.
Judge Gertner. But also if I might add----
Senator Schumer. Go ahead, Judge.
Judge Gertner. If it is the case that cameras in the
courtroom has become so ordinary that for the most part it is
not covered very much on the evening news, then the impacts
that are projected from having cameras in the courtroom are not
likely to be there. If it is not likely that every nuance of
the trial is going to be covered in the evening, then I can't
see that over time the concerns about theatricality will, in
fact, occur.
Now, to allow then for the discretion for the major case--
and I completely agree with you, Senator Schumer, that the
Diallo case was a perfect example because there was a concern
about the legitimacy of the proceedings. And unless the public
saw the proceedings as far and legitimate, they would not have
accepted the results. So it seems to me to allow even the
exception is what this bill is about.
Senator Schumer. Thank you, Judge Gertner.
I think, in all due respect, Judge Becker, you are on a
little bit of a slippery slope when you say you can't do any
balancing, that the fairness of the trial is the only value
that we have to look at here even if some good might occur. We
can debate how much.
I mean, I am looking here at the summary of your statement,
and I apologize to all of the witnesses for missing the initial
statements, which I managed to read. Let me ask you, you could
make the same argument against public trials. Here they are.
Among those reasons supporting the Conference's position are
the following: the intimidating effect of cameras on litigants,
witnesses, and jurors. I would argue to you that there would be
less of an intimidating effect if the trial were in a star
court chamber, if it were totally closed in some way.
Allowing cameras could interfere with a citizen's right to
a fair trial. You are certainly going to get that argument made
when you make a trial public.
Permitting camera coverage would almost certainly become a
negotiating tactic. If we were to make it discretionary to keep
the trial open, that could be a negotiating tactic.
Theatrics. I would argue to you I have met, as you have,
many lawyers who are playing to the public whether there is a
camera in the courtroom or not. Close the trial, don't make it
public, and you will stop more theatrics.
I mean, my point is somewhat rhetorical, but I still think
valid, and I would like you to address this idea that you can't
balance. That seems to me to be a fundamentally flawed argument
that would lead us to close the courtrooms to any public
openness. Leave out print reporters, leave out any non-relevant
witnesses, non-testifying witnesses.
Could you address that for a minute?
Judge Becker. Certainly. I respectfully and strongly
disagree. First of all, leaving aside that the Constitution
requires a public trial----
Senator Schumer. I am sure the Founding Fathers balanced
the benefits of having it open to the liabilities of having it
open.
Judge Becker. But they came up with what is in our
fundamental document. I submit, Senator, that there is a huge
difference between the effectiveness in a courtroom with 5
people, 10 people, 50 people in the courtroom, and being viewed
by tens or hundreds of thousands or perhaps even millions of
people.
Judges are in the business of line-drawing. That, to me, is
an easy line to draw. We have not had problems--I presided over
trials for 11 years--with a public trial. But it is
exponentially quantitatively, qualitatively different when you
have got television and you have got tens, hundreds of
thousands, millions of people----
Senator Schumer. Would you make the same argument about
still photographers or even a print reporter being read the
next day by tens of thousands or hundreds of thousands of
people seeing your picture?
Judge Becker. A page of history, as Holmes said, is worth a
volume of logic. We have got books full of history and have had
no problems with public trials. Television we have had other
problems with.
In terms of your question about the balance, I submit to
you that our most solemn duty is to assure that there is a
scrupulously fair trial for all concerned. Now, if you were to
say to me that the impact of television was minuscule, if we
are talking about something which is a scintilla, if it is
minuscule at that point there is an old maxim, de minimis non
corat lex.
But when you start to get some substantiality into it, and
our study reflects that there is considerable substantiality,
then I submit that a balance is not appropriate. And we are
talking--and this was one of my baseline premises in my oral
statement--we are not talking here necessarily about the degree
of unfairness that will result in a constitutional deprivation.
That is easy.
But there are lower levels; there are levels of unfairness
that don't amount to a constitutional deprivation. And if they
are in any degree significant, then I submit that as a policy
matter--I am not here as an individual adjudicator, but as a
policy matter that ought not to be balanced about the supposed
public good. I have suggested that in the overwhelming majority
of the cases, it is illusory.
Senator Schumer. Do you generally apply this rule that
there should not be balance, or just in this particular
instance? I find it a curious notion.
Judge Becker. Senator, judges balance all the time.
Senator Schumer. Of course.
Judge Becker. That is what we do, but we know when to
balance, and there are times when you don't balance. The
judging business is a line-drawing business. To me, the line is
relatively clear. But you are a lawyer and a graduate of a
distinguished law school as well, so you know how to balance,
and so does the chairman.
Senator Schumer. You know what they say, judge. The best
thing about going to Harvard is when somebody else tells you
they went to Harvard, you are not impressed. Because they took
you, they could take anybody.
Thank you, Mr. Chairman.
Senator Grassley. We thank you very much for your expert
testimony, and the only admonition I have is that you may get
some questions in writing. Thank you very much.
Judge Gertner. Thank you.
Judge Becker. Thank you. It was a great pleasure to be
here. I appreciate your courtesy.
Senator Grassley. It is our job to be courteous. I am not
sure we always are, but we ought to be.
Now, would everybody on the second panel come because you
can be seated, then, while I am introducing you?
Our first witness is Lynn D. Wardle, Professor of Law, J.
Reuben Clark Law School, Brigham Young University, Provo, UT. A
graduate of Duke Law, Professor Wardle has done extensive
research on media coverage of courtroom proceedings, beginning
when he served as a law clerk for Judge John Sirica, and that
was at the U.S. District Court for the District of Columbia
here, and that was May 1974 through May 1975. That was during
the Watergate investigation. He also served part-time as judge
pro tem, Eighth Circuit Court, Provo, UT, hearing civil cases.
Next to testify is a constituent of mine, Dave Busiek. Mr.
Busiek is News Director for KCCI-TV, a CBS affiliate, Des
Moines, IA; a member of the Radio-Television News Directors
Association, and has served on the board of directors now for
the past 8 years. Mr. Busiek has also been a television
reporter and anchor.
Finally, Mr. Ronald Goldfarb. He will speak before this
subcommittee because he is a lawyer and author on this subject.
He lives here in Washington, DC. He was a prosecutor and
defense counsel in the U.S. Air Force; a member of the
Organized Crime Section, U.S. Department of Justice, during the
Kennedy administration. Mr. Goldfarb is the author of 10 books,
including one entitled TV or Not TV: Television, Justice, and
the Courts.
Now, we are going to go with Professor Wardle, my
constituent, and then counselor Goldfarb.
Would you proceed, professor?
PANEL CONSISTING OF LYNN D. WARDLE, PROFESSOR OF LAW, J. REUBEN
CLARK LAW SCHOOL, BRIGHAM YOUNG UNIVERSITY, PROVO, UT, DAVID
BUSIEK, NEWS DIRECTOR, KCCI TELEVISION, DES MOINES, IA, ON
BEHALF OF THE RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION; AND
RONALD GOLDFARB, WASHINGTON, DC
STATEMENT OF LYNN D. WARDLE
Mr. Wardle. Thank you, Mr. Chairman and distinguished
members of this subcommittee, Senator Schumer. My name is Lynn
Wardle. I am a Professor of Law at the J. Reuben Clark Law
School, Brigham Young University, and I am very honored to
appear before this subcommittee and present a statement in
support of the bill. My modest contributions are based on my
own experience and some research that I have done in the area.
There are four reasons why I believe that Senate bill 721
should be enacted. It is good for the courts. It is good for
the public. It preserves appropriate judicial discretion, and
the experience of 48 State courts with cameras in the courtroom
has shown that it is doable and that it is worth doing.
First, it is good for the courts. A fundamental principle
of the U.S. judicial system is that our courts are open,
public, and accessible. Federal judges are given significant
authority in our system of Government, and it has been very
important that they not become isolated and remote from the
people.
As Justice Harlan once wrote, ``It is desirable that the
trial of causes should take place under the public eye, that
every citizen should be able to satisfy himself with his own
eyes as to the mode in which a public duty is performed.''
Public access to Federal courts, including access by
camera, preserves and protects the integrity of the Federal
judicial system. Public viewing of trials aids the fact-finding
process, fosters the appearance of fairness, and heightens
public respect for the judicial process.
As the Supreme Court noted in Richmond Newspapers, public
access is, ``an indispensable attribute of an Anglo-American
trial,'' because it gives, ``assurance that the proceedings are
conducted fairly to all concerned, and it discourages perjury,
misconduct of participants, and decisions based on secret,
bias, or prejudice.'' Cameras make the real justice system
visible to the citizens who support that system.
Second, it is good for the public that Federal court
proceedings are open, accessible, and generally visible. It is
good because civic education results. Most Americans,
particularly young Americans, want to see the courts in action.
They want to know exactly how does the court system work. Our
citizens should be able to personally observe the Federal
judicial process. That kind of experience makes citizens more
informed, more realistic, gives them a more accurate
understanding of the judicial process, reduces anxieties, and
makes them less fearful about being participants in the
judicial process.
Some persons who have a right to be in the courtroom but
cannot be there for very good reasons, such as health or
finances or other commitments such as caring for aged parents
or children--for example, victims of crimes and their
families--often desire to be there, but cannot be physically
present. Cameras allow them to be present through the camera
lens.
Public awareness of judicial behavior is one of the
assumptions on which the primary constitutional safeguard--
namely, Article III ``good behavior'' standard for retention of
Federal judges--is based. It is important that we be able to
observe the behavior of Federal judges. That is the assumption
on which that safeguard is predicated.
Moreover, when the public is excluded, suspicions are
aroused. As the Supreme Court noted in Richmond Newspapers,
``Where the trial has been concealed from public view, an
unexpected outcome can cause a reaction that the system at best
has failed or, at worst, has been corrupted.''
I think Senator Schumer's example of the Diallo case is a
prime exhibit of that reality. There was an unexpected outcome,
and if that proceeding had been concealed from the public,
there may have been concerns that, well, this is unfair or a
corrupt process. But because the citizens had the opportunity
to see and realized it was a very difficult issue and difficult
decision, the reaction was much more muted, much more moderate.
Third, Senate bill 721 focuses on the fundamental policy
issue by preserving judicial discretion. It only addresses the
question, should a judge have the discretion to permit the use
of cameras in the courtroom. It doesn't try to micromanage the
resolution of all of the questions relating to the use of
cameras in the courtroom, but leaves the resolution of those
issues to the persons in the best position to answer them,
namely judges.
Now, that is a very astute point, I believe, because there
are significant questions and very powerful concerns that have
been expressed by people about cameras in the courtroom. Those
concerns do not go to whether cameras should be in the
courtroom, but rather how they should be in there, when, under
what circumstances, under what restrictions.
Now, Congress might propose some guidelines. It might say,
here is what we think. But, instead, Senate bill 721 says we
don't want to micromanage the courts; let the judges make those
decisions themselves, let the Judicial Conference propose
guidelines. I think that is much more appropriate than having
the legislature make that decision.
Two hundred years ago, a Federal court in an urban area
open to newspaper reporters and people in the market would be
fully accessible to the public. But today times have changed.
We depend heavily on technology for access, and I am not sure
that it can be accurately stated that a downtown urban court is
fully accessible and fully public if we ban cameras as a
blanket rule.
The third point I have already mentioned, and the fourth is
the experience of 48 courts with cameras in the courtroom can't
be ignored. According to the National Center for State Courts,
48 States allow cameras in the courtrooms, with 35 allowing
them in criminal cases. The point is we have experience, we
know it can be done. Yes, there are concerns, but those
concerns can be addressed by capable judges exercising wise
judicial discretion.
For these reasons, and for the other reasons expressed in
my statement that I ask to be included in the record, I favor
the passage of S. bill 721.
Thank you.
[The prepared statement of Mr. Wardle follows:]
Prepared Statement of Lynn D. Wardle
Mr. Chairman, and distinguished members of this Subcommittee on
Administrative Oversight and the Courts of the Senate Judiciary
Committee:
My name is Lynn D. Wardle. I am a professor of law at the J. Reuben
Clark Law School, Brigham Young University.\1\ I am honored to appear
before this subcommittee to present a statement in support of S. 721.
---------------------------------------------------------------------------
\1\ I graduated from Brigham Young University in 1971 (B.A.) and
from Duke University School of Law in 1974 (J.D.). I was on the duke
Law Review (Director, Writing Competition) and also on the Duke Law
School Moot Court Board of Advocates. I served as a law clerk to the
Hon. John J. Sirica of the U.S. District Court for the District of
Columbia from May 1974 through August 1975 (during the Watergate
coverup case and some related cases), practiced civil litigation with
the law firm of Streich, Lang, Weeks, Cardon & French (now Quarles &
Brady Streich Lang) in Phoenix, Arizona from 1975-1978 (representing
corporate and individual clients in a variety of commercial cases), and
also worked in the U.S. Department of Justice, Civil Division, Federal
Programs Branch in Washington, D.C. (Professor-in-Residence, 1989-90)
(representing federal agencies sued in federal courts). For nearly
three years I served as a Judge pro-tem, Eighth Circuit Court in Provo,
Utah hearing small claims civil cases. Since joining the faculty of the
Brigham Young University School of Law in 1978 I have taken over 100
pro bono cases, and written nearly a dozen amicus curiae briefs, and
taught as a Visiting Professor or Visiting Researcher in law schools in
Scotland (1985), Japan (1988), Washington D.C. (1990-91), and Australia
(2000). I taught Civil Procedure for a dozen years, and teach Conflicts
of Laws and a Seminar on the Origins of the Constitution among other
subjects.
---------------------------------------------------------------------------
The issue of cameras in the courtrooms of American courts has been
extensively debated in recent years. For example, my computer search of
American law review found over 125 articles, notes, and comments
published on the subject in the past 10 years alone.\2\ My modest
contribution to this debate is based on my experience and research,
which is not unique but which may be helpful. I have worked as a lawyer
for the federal government, and done legal work for state governments;
I have represented large corporations in private practice and have done
extensive pro bono work representing private individuals; I served as
law clerk to a federal judge during a major criminal trial, and served
as a judge pro tem in a state court hearing minor civil disputes; I
have been a law professor for more than 22 years; my interest in the
subject dates back 25 years to my days as a law clerk for Judge Sirica
who decided a seminal case about media access to evidence in federal
court.\3\
---------------------------------------------------------------------------
\2\ I searched the ``JLR'' database in Westlaw for publications
since 1990 containing the word ``cameras'' within 10 words of
``courtroom'' and came up with 126 publications (Aug. 29, 2000). With
the help of my research assistant, Catherine DeGaston, I have reviewed
a number of these, and relied on several, including: Duane A. Bosworth
II, Alonzo B. Wickers IV, Jeffry H. Blum and Anke E. Steinecke, Report
from the 5th Annual Conference, Communications Lawyer, Summer 2000, at
28; Michael J. Grygiel, Memorandum of Law of Regional News Network in
Support of Its Motion for Limited Intervention and Application to
Provide Audio-Visual Coverage of Trial Proceedings, 63 Albany L. Rev.
1003 (2000); Stacy R. Horth-Neubert, Note, In the Hot Box and on the
Tube: Witnesses Interests in Televised Trials, 66 Fordham L. Rev. 165
(1997); Kathleen M. Krygier, The Thirteenth Juror: Electronic Media's
Struggle to enter State and Federal Courtrooms, 3 CommLaw Conspectus 71
(1994); Laurie L. Levenson, Cases of the Century, 33 Loyola L.A. L.
Rev. 585 (2000); James M. Linton, Camera Access to Courtrooms:
Canadian, U.S., and Australian Experiences, 8 Can. J. Communica. 1
(1993); Francis T. Murphy, Televised Criminal Trials May Deny Defendant
A Fair Trial, N.Y. State Bar J., Mar/Apr 2000, at 56; Leonard E.
Noisette, New York State Committee to Review Audiovisual Coverage of
Court Proceedings: Minority Report (April 1, 1997); Jennifer L.
Reichert, New York Judge Rules Ban on Cameras in Court
Unconstitutional, Trial, May 2000, at 98; Judith Resnik, Trial as
Error, Jurisdiction as Injury: Transforming the Meaning of Article III,
113 Harv. L. Rev. 924 (2000); Ralph E. Roberts, Jr., Comment, An
Empirical and Normative Analysis of the Impact of Televised Courtroom
Proceedings, 51 S.M.U.L. Rev. 621 (1998).
\3\ United States v. Mitchell, In Re N.B.C., 397 F. Supp. 186
(D.D.C. 1976), rev'd 551 F.2d 1252 (D.C. Cir. 1976), rev'd sub nom
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978).
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There are four reasons why I believe that S. 721 should be enacted
to permit federal judges to decide case-by-case whether, when, and
under what conditions to permit cameras in their courtrooms. It is good
for the courts; it is good for the public; it prudently addresses only
the basic policy issue while preserving judicial discretion; and the
experience of 48 state courts with cameras in courtrooms has shown that
it is do-able and worth doing.
First, it is good for the courts. A fundamental principle of the
United States judicial system is that our courts are public, open, and
accessible. Judges are given significant authority in our system of
government, and it is important that they not become isolated and
remote from the people whose legal will (legislative and
constitutional) they are appointed to uphold. Because federal judges
are not directly accountable to the people, as many state judges are,
by having to stand for election (either in contested judicial elections
or for retention votes), because they usually work in the refined
atmosphere of some intimidating (even daunting) courtrooms, surrounded
by strict security, because most of their daily interaction is with a
highly-paid, rather elite lawyers, because much of their work consists
of legal research, analysis, and writing which is a lonely work, and
because modern society provides few opportunities for ordinary citizens
who are not parties or witnesses in federal suits to observe federal
judges at work, it is not unfair to say that federal judges work in
relative isolation. Yet they exercise, at least in their own
courtrooms, and at least in the short run, awesome legal power and are
asked to resolve legal disputes of tremendous importance (some
involving billions of dollars, the fortunes and futures of individuals,
families, companies, and industries, and fundamental issues of
government policy). It is best for that power to be exercised openly,
and for as much of the judicial process to occur in full public view
whenever reasonably possible without undermining the administration of
justice. As Justice Brandeis once stated, ``Sunshine is the best
disinfectant.\4\ It is good for the courts and for the country to
eliminate ``defective information'' about the courts, the law and the
cases they decide.\5\ Public access to federal courts including access
by camera preserves and protects the integrity of the federal judicial
system.
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\4\ Louis Brandeis, Other People's Money, And How the Bankers Use
It 92 (1914), cited in Steven P. Croley & William F. Funk, The Federal
Advisory Committee Act and Good Government, 14 Yale J. on Reg. 451, n.
110 (1997).
\5\ Alexander Hamilton wrote in The Federalist Papers about ``all
the ill consequences of defective information'' relating to knowledge
of the courts, the law, and facts of particular cases in criticizing
proposals for legislative control or revision of the decisions of
federal courts. The Federalist Papers, No. 81 (Hamilton), at 483-484
(New American Library, Clinton Rossiter ed., 1961). The same dangers
might be said to arise from any uninformed body exercising influence
over the federal courts.
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As Justice Harlan once wrote, ``It is desirable that the trial of
causes should take place under the public eye . . . that every citizen
should be able to satisfy himself with his own eyes as to the mode in
which a public duty is performed.'' \6\ The public has ``First
Amendment interests that are independent of the First Amendment
interests of speakers (in this instance, the parties to the trial)''
\7\ Public viewing of trials aids accurate fact-finding and furthers
the public purposes of trials.\8\ Allowing cameras in the courtroom
``enhances the quality and safeguards the integrity of the fact-finding
process.'' \9\ ``fosters an appearance of fairness,'' \10\ and
heightens ``public respect for the judicial process,'' \11\ while
permitting ``the public to participate in and serve as a check upon the
judicial process--an essential component in our structure of self
government.'' \12\ In Richmond Newspapers, Inc. v. Virginia, the
Supreme Court noted that court openness to public access is ``an
indispensable attribute of an Anglo-American trial'' because it gives
``assurance that the proceedings were conducted fairly to all
concerned, and it discourage[s] perjury, the misconduct of
participants, and decisions based on secret bias or partiality.'' \13\
Cameras made the real justice system visible.\14\ The Supreme Court
noted 53 years ago, ``A trial is a public event. What transpires in the
court room is public property.'' \15\ Thus, S. 721 may protect and
preserve the integrity of the federal courts by making them more open,
more public, more visible, and more accessible to more Americans.
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\6\ Cowley v. Pulsifer, 137 Mass. 392, 294 (1998) (Holmes, J.),
quoted in Craig v. Harney, 331 U.S. 367, 374 (1947); Gannett Co. v.
DePasquale, 443 U.S. 368, 429 n. 10 (1979) (Blackmun, J., concurring &
dissenting).
\7\ Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d
16, 19-20 (2d Cir. 1984), citing First National Bank v. Bellotti, 435
U.S. 765, 777 (1978); Bates v. State Bar, 433 U.S. 350, 364 (1977);
Young v. American Mini Theatres, Inc., 427 U.S. 50, 76 (1976) (Powell,
J. concurring); Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 756 (1976) (First Amendment
``protection . . . is to the communication, to its source and to its
recipients both'').
\8\ Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 596-97
(1980) (Brennan, J., concurring). See also Krygier, supra at 83.
\9\ Globe Newspaper, 457 U.S. at 606.
\10\ Id.
\11\ Id.
\12\ Id. See Publicker Industries, Inc. v. Cohen, 733 F.2d 1059,
1071 (3d Cir. 1984).
\13\ 448 U.S. 555, 569, 578 (1980).
\14\ Levenson, supra at 610.
\15\ Craig v. Harney, 331 U.S. 367, 374 (1947).
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Second, it is also good for the public that federal court
proceedings are open, accessible, and generally visible. It is good
because of the civic education that results when citizens witness the
federal courts in action. I believe that most Americans, particularly
young Americans, want to see the courts in action, want to know more
about how the courts really work, how lawyers present facts, how judges
apply the law, what the role of witnesses, jurors and parties are in
trials. They also want accurate information about what really happens,
not merely the dramatized and sensationalized entertainments prepared
and disseminated for media-profit. Citizens of this great Republic
should be able to personally experience as ordinary observers the
federal judicial process, to see the federal courts in action.\16\ That
kind of experience make citizens more informed, more realistic, and
gives them a more accurate understanding of the judicial process (which
also is good for the nation and for the courts). That kind of
experiential information also reduces anxieties and makes them less
anxious, less fearful about being participants in the judicial process
(as jurors, witness, or parties).
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\16\ Two hundreds years ago, it could be said that federal courts
were open, public and fully accessible if the courtrooms were situated
in urban centers near the major markets where farmers and tradesmen
came to sell their commodities, near where merchants sold their wares,
close to where financiers and professionals transacted their business,
etc., and if newspaper reporters could witness and report the
proceedings. Then, ``fully accessible'' meant accessible to personal
presence or to the print media. Times have changed. Today, not only
does technology expand our accessibility, but it has expanded our
activities and commitments so that we depend heavily upon that
technology for access (and not solely upon personal presence and print
media). I am not sure that it can be accurately stated that a downtown
urban federal courthouse that is accessible to personal presence and
the print media only is ``fully accessible'' to the public today.
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Some persons who have the right to be in the courtroom who often
cannot be there because of good reasons--such as financial reasons
(they must work and cannot afford to take the time off), health (they
are physically unable to make the trip to the courtroom or sit there
for extended periods), family commitments (they are caring for
dependent children or aged parents or others in their homes and cannot
leave for an entire day, week or longer), etc. For examples, victims
and families of crime victims may have the right and often the desire
to see the justice system in action,\17\ but may not be able to spend
hours, days, or weeks in a federal courtroom.
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\17\ See Victims' Rights and Restitution Act of 1990, Pub. L. 101-
647, 104 Stat. 4820 (codified at inter alia 42 U.S.C. Sec. 10606(b)(3),
(4), (7) (1990); see also Pub. L. 101-647 Sec. 506 (5) & (6) (Victims
of Crime Bill of Rights).
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Public awareness of court proceedings and judicial behavior is the
assumption on which is based the primary Constitutional safeguard
intended ``to secure the steady, upright and impartial administration
of the laws.'' \18\ That, of course, is the provision of Article III
that ``good behavior'' is the standard for retention in service of
federal judges. Thus, it is important that the public be able to
observe the behavior of federal judges. When the public is excluded
suspicions are aroused.\19\ Thus, when Justice Joseph Teresi set aside
a New York law barring the use of broadcast cameras in the Diallo
murder trial,\20\ and permitted the proceedings to be televised, there
was concern that it would inflame some citizens; when the jury
acquitted the defendants, there was fear that it would lead to
widespread rampage. In fact, the mild public discontent following that
verdict has been attributed by some to the fact that the public had
been able to see both sides of the case and realized that the issues
were very complicated and difficult.\21\
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\18\ The Federalist Papers, No. 78 (Hamilton), supra at 465.
\19\ As the Supreme Court noted in Richmond Newspapers, ``[W]here
the trial has been concealed from public view an unexpected outcome can
cause a reaction that the system at best has failed and at worst has
been corrupted. . . . People in an open society do not demand
infallibility from their institutions, but it is difficult for them to
accept what they are prohibited from observing.'' 448 U.S. at 571-72.
See Lucy A. Dalgish & Gregory H. Kahn, Letter to Hon. Robert M. Murphy,
Jr., (Feb. 28, 2000).
\20\ People v. Boss, 701 N.Y. S.2d 901 (N.Y. Sup. Ct., Alb. Cnty,
2000).
\21\ Reichert, supra at 98; Lucy A. Dalgish & Gregory H. Kahn,
Letter to Hon. Robert M. Murphy, Jr., (Feb. 28, 2000).
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Third, S. 721 focuses solely on the fundamental policy issue, and
preserves the discretion of the judges presiding in particular cases.
It addresses only one question: should the law permit a federal judge
presiding over a case to allow the use of cameras in the federal
courtroom when he deems it to be in the public interest and consistent
with considerations of constitutional rights, wise policy, and the fair
administration of justice? S. 721 determines that neither the
Constitution nor wise public policy mandates a blanket prohibition on
judges allowing cameras in federal courtrooms.
Even more importantly, S. 721 does not try to micromanage the
resolution of all questions relating to cameras in the courtroom, but
leaves the resolution of those issues to the persons in the best
position to best answer them--the judges presiding in the particular
case--and authorizes them to act on a case-by-case basis. Thus, the
bill preserves the discretion of the judge presiding in the particular
case or proceeding to see that justice is done in each and every case.
This bill in no way undermines the power of those judges to restrict,
condition, or even ban the use of cameras in any particular case, or
even in all cases if they feel that is appropriate. It does not negate
the authority of judges to issue legitimate time, place or manner
restrictions on the use of cameras, nor preclude the banning of cameras
when a judge in his or her discretion believes that is warranted.\22\
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\22\ Even when there is tremendous media coverage of a case, the
court has the power to maintain normalcy in the courtroom.'' Levenson,
supra, at 610.
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S. 721 does not preclude the Judicial Conference from proposing
guidelines for the use of cameras in federal courts. In fact, the Bill
authorizes such Guidelines and I would encourage the Judicial
Conference to prepare such guidelines. In fact, it might even go one
step further and propose a system for recording and televising the
proceedings in federal courts comparable to C-SPAN, which I consider to
be a very successful, appropriate, and dignified approach to the use of
cameras to convey to the public important governmental proceedings in
the public interest.
S. 721 is an extremely modest bill, containing a very generous (in
my opinion, over-generous) exception for witnesses to demand identity
protection, authorizing the Judicial Conference to issue guidelines,
and containing a three-year sunset provision. In short, it is a very
careful, prudent approach to moving ahead cautiously in a complex area.
I believe that S. 721 is clearly within the power of Congress. For over
two hundred years, Congress has exercised the authority to establish
rules and standards governing judicial proceedings in the federal
courts (particularly district courts and courts of appeals).\23\
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\23\ See 28 U.S.C. Sec. Sec. 2, 48, 138-141 (terms and times of
courts); Sec. 1652 (rule of decision act), id. Sec. 2071 (rules
authorization); id. Sec. Sec. 1781-84 (evidence); id. Sec. 1781 Note
(Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters); Federal Rules of Civil Procedure; Federal Rules of Evidence;
see generally 28 U.S.C. passim.
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Fourth, the experience of forty-eight states with cameras in the
courtroom cannot be ignored. Forty-eight states allow the use of
cameras in state courtrooms under a variety of rules and conditions.
None of those states has been so dissatisfied with the experience to
repeal the rules allowing cameras in the courtroom; rather, the courts
and commentators report generally very positive experiences.\24\
Reports on the effects of cameras in state courts consistently show
that it is manageable and that there are no significant detrimental
effects on witnesses, jurors or others involved. Likewise, the 1994
Federal Judicial Center report on the three-year pilot program in sine
federal courts noted ``small or no effects of camera presence on
participants in the preceding, courtroom decorum, or the administration
of justice.''\25\ ``Most of the justices who were interviewed . . .
thought that educating the public about the workings of the federal
courts was the greatest potential benefit,'' and court administrative
liaisons expressed satisfaction with the pilot projects.\26\
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\24\ According to the National Center for State Courts, forty-eight
states allow cameras into the courtrooms, with thirty-five of those
states allowing cameras into the criminal courtroom. Many states
require a showing of prejudice by the defendant to warrant the removal
of cameras from the courtroom. Two states, Mississippi and South
Dakota, do not allow cameras in the courtroom, and those states do not
have any pending rules that would allow cameras in the courtroom.
Several states are modifying the use of cameras in the courts, either
by proposing legislation that will further restrict the use of cameras
or by expanding the use of cameras in the courts. The California
Judicial Council, for example, recently adopted Rule 980 of the
California Rules that will allow judges to retain discretion over the
use of cameras in their courts . . . . Roberts, surpa, at 628. See also
Krygier, supra at 76 (noting 47 states allow cameras in state
courtrooms in 1994); Statement of Sen. Leahy, Cong. Rec. S. 3449 (Mar.
24, 1999). In fact, the trend toward allowing cameras in the courtroom
began with a resolution adopted by the U.S. Conference of Chief
Justices in 1978 favoring cameras in the courtroom; in 1982 the ABA
reversed its support for banning cameras from courtrooms. Linton, supra
at .
\25\ Krygier, supra, at 80, citing Molly Johnson & Carol Krafka,
Electronic Media Coverage of Federal Civil Proceedings: An Evaluation
of the Pilot Program in Six District Courts and Two Courts of Appeals 7
(1994).
\26\ Id. at 24, 31-32, cited in Krygier, supra at 80.
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Thirty-five years ago, the Supreme Court crystallized a policy
against cameras in federal courts. At that time, Justice Harlan foresaw
that with time and experience, the media would mature in its methods of
covering trials, and the public would become more comfortable with the
presence of cameras in their lives. He wrote: ``The day may come when
television will have become so commonplace an affair in the daily life
of the average person as to dissipate all reasonable likelihood that
its use in courtrooms may disparage the judicial process.'' \27\ Today,
with ubiquitous airwaves television, extensive cable TV systems, 500-
channel satellite television networks, tens of thousands of internet
``broadcasters,'' when cameras in people's homes are used in television
broadcasting of ``real life'' programs, and when security cameras for
recording evidence are common in courtrooms, the day foreseen by
Justice Harlan has come. The presence of discreet cameras in courtrooms
is generally not disruptive unlike thirty-five years ago.\28\ It is
time for the federal courts to change their policy to provide a
valuable service to the public and to the judicial process that now can
be provided without hampering the administration of justice.
---------------------------------------------------------------------------
\27\ Estes v. Texas, 381 U.S. 532, 595-97 (1965) (Harlan, J.,
concurring).
\28\ Krygier supra at 71.
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I am aware that there are serious reservations about allowing
cameras in federal courts and potentially serious problems that might
result from mismanagement. Some experienced judges and judicial
administrators have expressed thoughtful objections to cameras in the
courtrooms. Some of these concerns are worth noting here.
(1) Allowing cameras in the courtroom will add to the
administrative work of the judges who will need to spend some time
overseeing the use of cameras in the courtroom.\29\
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\29\ Westmoreland, 752 F.2d at 25, citing Chandler v. Florida, 449
U.S. at 574.
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(2) It could make empaneling and protecting juries from exposure to
improper information more difficult and more expensive, especially in
retrials.\30\
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\30\ Id.
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(3) The presence of cameras in the courtroom may have a distorting
psychological effect on witnesses, parties, jurors, lawyers and even
judges; in some cases, witnesses, parties, or jurors or others may be
intimidated by knowing that their faces, voices and testimony will
broadcast widely.\31\
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\31\ Id. See also Noisette, supra, at 4 (noting especial concerns
in cases involving sex crimes and domestic violence; also noting that a
survey reported that most voters would not want trials in which they
were parties, witnesses or victims to be televised); Statement of Judge
Harvey Schlesinger, Chairman, Committee on Magistrate Judges, Statement
on Behalf of the Judicial Conference of the United States on the
Federal Courts Improvement Act (H.R. 1752) ''http://www.house.gov/
judiciary/sch10616.ht'' (``the potentially intimidating effect of
cameras on some witnesses and jurors'').
---------------------------------------------------------------------------
(4) The presence of cameras and media have sometimes
historically been associated with creating a ``circus
atmosphere'' in courtrooms, impairing a defendant's right to a
fair trial.\32\
---------------------------------------------------------------------------
\32\ Westmoreland, id. The O.J. Simpson trial is one recent ``bad
example'' of inept management of the use of cameras in the courtroom;
the 1950s trial of Sam Sheppard is another one.
The ban on cameras in the courtroom can be traced back to
the sensational Lindbergh baby kidnaping case of 1935. . .
. The media's constant and disruptive presence in the
courtroom threatened the defendant's constitutional right
to receive a fair trial. [T]he media frenzy surrounding
this case sparked the debate on the constitutional right of
the press to have access to trials.
. . . In 1937, the [American Bar Association's] House of
Delegates adopted Canon 35 of the Judicial Canon of Ethics,
barring all still photography and cameras from the
courtroom. . . .
Krygier, supra at 72.
(5) The media may distort the presentation of the trial,\33\ by
selective editing reporters and editors may have a very biased,
prejudiced, unfair and inaccurate view of the parties, personnel, and
proceedings, and (in the words of Alexander Hamilton) by the
``pestilential breath of faction may poison the fountain of justice.''
\34\
---------------------------------------------------------------------------
\33\ Noisette, supra at 3 (``the overwhelming majority of footage
of court proceedings actually consists of short features--snippets,
which shed little light on the complexity of court proceedings.'')
\34\ The Federalist Papers, No. 81 (Hamilton), supra at 484.
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(6) Because the media wield the power to make a person look
foolish, narrow-minded, and biased, judges may be intimidated and
unwilling to restrict the use of cameras even when necessary for
justice.\35\
---------------------------------------------------------------------------
\35\ Westmoreland, 752 F.2d at 33-34 (Winter, J., concurring). But
federal judges are not spineless creatures!
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(7) The Supreme Court has repeatedly rejected the claim that the
media have a constitutional right to use cameras in, make photographs
in, or broadcast from federal courtrooms. ``[T]here is no
constitutional requirement that television be allowed in the
courtroom.'' \36\ As Chief Justice Warren declared in Estes, ``On
entering [the courtroom], where the lives, liberty and property of
people are in jeopardy, television representatives have only the rights
of the general public, namely, to be present to observe the
proceedings, and thereafter, if they choose, to report them.'' \37\
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\36\ Estes, 381 U.S. at 587 (Harlan, J., concurring); see also
Chandler v. Florida, 449 U.S. 560, 569 (1981); Nixon v. Warner
Communications, Inc., 435 U.S. 589 (1978) (``the guarantee of a public
trial . . . confers no special benefit on the press''); see further
Globe Newspaper v. Superior Court, 457 U.S. 596 (1982); Press-
Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).
\37\ Estes v. Texas, 381 U.S. 532, 585-86 (1965) (concurring
opinion).
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(8) The primary concern of the judge and court must be with matters
of law, rights, due process and the fair administration of justice,
whereas the primary concern of the media is with probing and displaying
the social interests or entertainment value involved in the dispute;
these judicial and media interests may be incompatible.\38\
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\38\ See generally Estes v. Texas, 381 U.S. 587-91 (Harlan, J.,
concurring); Noisette, supra at 7-8 (Most of the interest of the media
and public in watching trials on television is for entertainment, not
education, and the more outrageous the trial the better entertainment
it is.); Murphy, supra at 56-57 (``the press is governed by different
rules''); Statement of Judge Harvey Schlesinger, Chairman, Committee on
Magistrate Judges, Statement on Behalf of the Judicial Conference of
the United States on the Federal Courts Improvement Act (H.R. 1752)
(``the paramount
responsibility of a United States judges is to guarantee citizens a
right to a fair and impartial trial''); Levenson, supra at 611 (``there
must be a clear distinction made between the social practice as issue
and the legal and factual issues that must be decided. Blurring the
issues disserves the trial process and the importance of social
debate.''
---------------------------------------------------------------------------
Of course, other thoughtful judges and commentators have
responded to these concerns.\39\ The issue is certainly not
one-sided.
---------------------------------------------------------------------------
\39\ For example, the Second Circuit noted Judge Leval's perceptive
explanation why cameras should be permitted in the federal courtroom in
the Westmoreland case:
---------------------------------------------------------------------------
1. The experience of many states that live telecasting need
not interfere with the fair and orderly administration of
justice; 2. Other cases where exclusion of television might
be necessary may be faced as they arise; 3. Telecasting
does not offend the Constitution but perhaps infringes on
the litigants' or public's rights to a public trial; 4. The
public should see how the courts function, especially where
the public interest is involved as it is here, where ``it
could even be reasonably argued that the filming of this
trial is more important than its decision''; 5. It is in
the interest of the federal judiciary to let the public see
how hard it works and how fair it is; 6. It is a safe
prediction that the eventual entry of the camera into the
federal courtroom is inevitable.
Westmoreland, 752 F.2d at 17, n.3. See also Krygier, supra at 73-83,;
Horth-Neubert, supra at 166-176.
I do not discount or minimize those concerns. However, those
concerns go to the question of how to manage the use of cameras in the
courtroom, how to exercise the discretion to allow cameras in the
courtroom, and where and when to draw the boundaries on allowing
cameras in the courtroom, not whether cameras should be permitted in
the courtroom. The concerns of the judges who will have to deal with
the issues surrounding use of cameras in the courtroom, particularly,
should be listened to carefully, and I believe that S. 721 has taken
seriously and respected those concerns. The bill only provides that
judges presiding in particular cases have the discretion to allow or
disallow the use of cameras in the courtroom, and leaves unhampered the
discretion of the judge presiding in the case, who bears the
responsibility for the quality of justice in the case.
S. 721 is very similar to Section 210 of H.R. 1752 (Federal Courts
Improvement Act of 2000), which has passed the House of
Representatives. It appears that there are two main differences between
the two bills. First, subsection (b)(1) of the H.R. 1752 requires ``the
consent of all named parties'' before a presiding federal judge can in
his or her discretion permit the use of cameras, while S. 721 does not
(instead, leaves it entirely to the presiding judge's discretion). I
think that S. 721 is superior because mandatory deference to party
wishes hamstrings the court and may interfere with the administration
of justice; there is no need to defer to the wishes of a party when
there is no good cause for the party's wishes.\40\ Second, subsection
(c) of S. 721 leaves to the presiding judge's discretion whether to
refer to advisory guidelines that the Judicial Conference may
promulgate concerning the use of cameras, while the House Bill requires
the judge to refer to such guidelines ``with respect to consistent
criteria to be applied in the exercise of the discretion of the
presiding judge . . . .'' While both approaches are reasonable,
requiring reference to such guidelines may insure that the judge will
consider then, while it does not bind him to follow them, and may
facilitate some consistency in the federal courts dealing with cameras-
in-the-courtroom issues.
---------------------------------------------------------------------------
\40\ Perhaps a compromise would be to give judges discretion to
disregard party wihses when there is in the court's opinion ``no good
cause'' for disallowing the use of cameras, or when it would frustrate
the administration of justice and the public interest to do so.
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Finally, it appears to me that S. 721 does not infringe upon the
separate authority of the Supreme Court. It does not seem intended to
bind or restrict the Court in a way that would violate the Separation
of Powers. It includes the Supreme Court in the precatory provisions,
but those are permissive and discretionary, and it seems recognizes the
independence of the Supreme Court. (The authority of Congress over the
District Courts and Courts of Appeals is, of course, greater.)
Conclusion. I am a believer in and supporter of our federal
judicial system. I believe that S. 721 will protect the federal courts
and improve the administration of justice while serving the public
interest in open judicial proceedings. It will benefit the courts,
benefit the public, respect and enhance the discretion of the presiding
judges to act in the best interests of justice, and will bring the
federal courts into parity with the state courts in terms of
accessibility to the public through cameras in the courtroom. I
encourage this subcommittee to approve and recommend passage of S. 721.
Senator Grassley. Thank you, Professor Wardle.
Now, Mr. Busiek.
STATEMENT OF DAVID BUSIEK
Mr. Busiek. Senator Grassley, Senator Schumer,
distinguished members of the subcommittee, and guests, my name
is Dave Busiek. I have served as News Director of KCCI-TV, the
CBS affiliate in Des Moines, IA, for the past 12 years. Prior
to that, I spent 12 years as a radio and television reporter
and an anchor in Des Moines.
I am pleased today to testify regarding proposed
legislation to allow media coverage of Federal court
proceedings, not only on behalf of KCCI and the broadcast
journalists of Iowa, but also on behalf of the Radio-Television
News Directors Association, RTNDA, where I have served on the
board of directors for 8 years. RTNDA is the world's largest
professional organization devoted exclusively to representing
electronic journalists.
First, I would like to thank the distinguished Chair of
this subcommittee, Senator Grassley, for the invitation to be
here today. For many of you, it probably seems that Senator
Grassley has been around these halls for a long time. In fact,
it has been 20 years since his election to the Senate. I know;
I covered that campaign, and many before and since.
Coincidentally, that is precisely when Iowa began allowing
cameras into its courtrooms. For us, it seems like forever. It
has been 20 years. In fact, we have stopped counting how many
cases have been covered by cameras, but I can tell you that not
one judicial action has been overturned as a result of
electronic coverage of Iowa's courts.
The presence of cameras in Iowa courtrooms is routine and
well accepted. In his introductory note to our revised,
expanded media coverage handbook in 1997, our then Chief
Justice Arthur McGivern wrote, ``By and large, the experience
has been positive. I attribute this to the high caliber of
Iowa's media and to carefully crafted rules. The goal of
expanded media coverage is to increase public understanding of
the court system.''
I strongly believe that permitting television coverage of
trials is simply the right thing to do, and I would like to
point to two contrasting examples from Iowa that illustrate
precisely why I hold this conviction.
The year 2000 opened in Iowa with news of a 2-year-old girl
being found dead in her own bed, despite numerous warnings over
the preceding months that there were signs of child abuse.
Despite the warnings, nothing was done to remove that child
from her abusive home. Ultimately, the girl's mother and her
live-in boyfriend were charged with first-degree murder.
There were news crews from five different television
markets covering the individual trials. Both defendants were
acquitted of murder, although the mother was convicted of child
endangerment. In short, we had a situation with lots of warning
of abuse, but a dead child, two trials, and yet no convictions
for murder.
Understandably, Iowans are upset, but they were also
informed about precisely what transpired in the courtroom
during those trials. They could see the difficult job
prosecutors had trying to prove their case without any
witnesses to the crime, and Iowans were able to form their own
opinions about whether Human Services officials had done enough
to protect this child.
I am convinced that better public policy will be made
ultimately about how to prevent future cases of severe child
abuse because Iowans were allowed to see for themselves and not
through the filter of the few eyewitnesses in the crowded
courtroom how difficult were the issues involved and how
justice was dispensed. I would point to Senator Schumer's
comments about the Diallo trial and fully support them as well.
The situation with coverage of Federal proceedings is quite
different, however. I would like to cite another example from
Iowa. In a 1997 crime spree, two local boys held up a bank in
the town of Oskaloosa and killed two women in separate
locations merely for the purpose of stealing their vehicles for
getaway cars. These were senseless murders. The women did not
offer any resistance.
People in the rural areas where these crimes occurred were
stunned by the senseless violence. Many locked their doors for
the first time. Others armed themselves with shotguns and went
out looking for the suspects. For days, the entire area was on
edge. After a massive manhunt, the suspects eventually were
captured in Florida and returned to Iowa to stand trial on
Federal bank robbery and murder charges. They decided to plead
guilty.
The legal proceedings in this case were held in Federal
court, in Des Moines, outside the view of television cameras.
It occurred to me then, as it has in similar contexts, that the
citizens were deprived of a chance to begin the healing process
because they were unable to view these perpetrators making
their confession statements to the court. Friends, relatives,
fellow church members, and neighbors were not able to look into
these suspects' eyes and judge for themselves what kind of a
person would commit such a heinous crime. It was an opportunity
lost because of a needless ban on cameras in Federal courts.
The legislation proposed by Senators Grassley and Schumer
represents an important step removing the cloak of secrecy
surrounding our Federal judicial system, and there is no
compelling reason not to support its passage. The First
Amendment right of the public to attend trials has been upheld
by the U.S. Supreme Court, and as the electronic media have
become an increasingly important surrogate for the public in
recent decades, that right logically must extend to audio-
visual coverage of Federal judicial proceedings.
I should mention here that RTNDA believes that any law
governing television coverage of the judicial branch should be
ground in a presumption that such coverage will be allowed
unless it can be demonstrated that it would have a unique
adverse effect on the pursuit of justice or prejudice the
rights of the parties in any particular case. Placing decisions
as to whether or not to pull the plug on electronic coverage in
the hands of the parties would violate the public's First
Amendment right of court access.
In conclusion, I would like to say that in the same way
that the public's right to know has been significantly enhanced
by the presence of cameras in the House and then the Senate
over the past two decades, the legislation proposed by Senators
Grassley and Schumer has the potential to illuminate our
Federal courtrooms, demystify an often intimidating legal
system, and subject the Federal judicial process to an
appropriate level of public scrutiny. It is time to provide
unlimited seating to the workings of justice everywhere in the
United States by permitting audio-visual coverage of judicial
proceedings.
Thank you.
[The prepared statement of Mr. Busiek follows:]
Prepared Statement of David Busiek
Senator Grassley, Senator Schumer, distinguished members of the
Subcommittee and guests: My name is Dave Busiek. I have served as news
director of KCCI-TV, the CBS affiliate in Des Moines, Iowa, for the
past 12 years. Prior to that, I spent 12 years as a radio and
television reporter and anchor in Des Moines. I am pleased to testify
today regarding proposed legislation to allow media coverage of federal
court proceedings not only on behalf of KCCI and the broadcast
journalists of Iowa, but also on behalf of the Radio-Television News
Directors Association, where I have served on the Board of Directors
for eight years. RTNDA is the world's largest professional organization
devoted exclusively to electronic journalism. RTNDA represents local
and network news executives, educators, students and others in the
radio, television, cable and online news business in more than 30
countries, and has long advocated opening our nation's courtrooms to
the sunshine of audiovisual coverage. Our members are the people who
have demonstrated that television and radio coverage works at the state
and local levels, and they can make it work on the federal level.
First, I would like to thank the distinguished Chair of this
subcommittee, Senator Grassley, for the invitation to be here today.
For many of you, it probably seems that Senator Grassley has been
around these halls forever. In fact, it's been 20 years since his
election to the Senate. Coincidentally, that is precisely when Iowa
began allowing cameras into its state courts. It's been 20 years! By
now, we've stopped keeping count of how many proceedings have been
covered because Iowa's laws allow electronic journalists to use the
tools of their trade to inform the public about trials and other
judicial proceedings. Certainly, several thousand cases have been
covered and not one judicial action has been overturned as the result
of electronic coverage of Iowa's courts.
The presence of cameras in Iowa courtrooms is routine and well-
accepted. In his introductory note to our revised Expanded Media
Coverage (or ``EMC'') handbook in 1997, then-Chief Justice Arthur
McGivern wrote, ``by and large, the experience has been positive. I
attribute this to the high caliber of Iowa's media and to carefully
crafted rules. . . . The goal of Expanded Media Coverage is to increase
public understanding of the court system.''
I strongly believe that permitting television coverage of trials is
simply the right thing to do. I would like to offer today two
contrasting examples from Iowa that illustrate precisely why I hold
this conviction.
The year 2000 opened in Iowa with the news of a 2-year-old girl
being found dead in her own bed, despite numerous warnings over the
preceding months that there were signs of child abuse. Despite the
warnings, nothing was done to remove the child from her abusive home.
Ultimately, the girl's mother and her live-in boyfriend were charged
with first-degree murder. In July, the boyfriend was tried in a small
county seat town. There were news crews from 5 different TV markets
covering the trial. The coverage went off without a hitch, despite this
county having no prior experience with expanded media coverage. The
boyfriend was acquitted of all charges. Earlier this month, the
toddler's mother was also tried. She, too, was acquitted of murder, but
convicted of child endangerment.
In short, we have a situation with lots of warning of abuse, a dead
child, two trials, and yet no convictions for murder. Understandably,
Iowans are upset. But, they are also informed about precisely what
transpired in the courtroom during these trials. They watched as both
suspects testified. They were able to form opinions about whether Human
Services officials had done enough to protect the child. They could see
the difficult job prosecutors had trying to prove their case without
any witnesses. I'm convinced that better public policy will be made
about how to prevent future cases of severe child abuse because Iowans
were allowed to see for themselves, and not through the filters of the
few eyewitnesses in the crowded courtroom, how difficult were the
issues involved and how justice was dispensed.
Senator Schumer's home state offers a similar example. The recent
trial concerning the death of Amadou Diallo in Albany, New York is
illustrative of the important role television coverage can play.
Justice Joseph Teresi's watershed ruling declaring a constitutional
right to televise criminal trials opened the door to the type of pool
coverage we often use in Iowa. The Diallo trial coverage also
exemplifies how television can provide the public with a unique window
on an important and controversial trial without compromising the
integrity of the proceedings. By all accounts, there was no sign of the
courtroom grandstanding that opponents of cameras in courts often cite.
Any attempts by the prosecution and defense to speak to the public at
large occurred outside the courtroom, as they would have with or
without a camera inside. Most importantly, the public was allowed to
witness first-hand the proceedings in this highly-charged trial and
arrive at their own conclusions. Indeed, the decision to allow camera
coverage of this trial probably averted more violent protests from
those unhappy with the acquittal of the four police officers charged
with killing Mr. Diallo, because, as a New York Times editorial pointed
out, it ``allowed the public to understand the legal complexities of
the officers' claims of self-defense.''
The situation with coverage of federal proceedings is quite
different, however. I'd like to cite another example from my home state
of Iowa. In a 1996 crime spree in Southern Iowa, two local boys held up
a bank in Oskaloosa and killed two women in separate locations merely
to steal their vehicles for get-away cars. These were senseless
murders. The women did not resist. People in the rural areas where
these crimes occured were stunned by the senseless violence. Many
locked their doors for the first time. Others armed themselves with
shotguns and went looking for the suspects. For days, the entire area
was on edge. After a massive manhunt, the suspects were eventually
captured in Florida and returned to Iowa to stand trial on federal bank
robbery and murder charges. They decided to plead guilty.
The legal proceedings in this case were held in federal court in
Des Moines, outside the view of television cameras. It occurred to me
then, as it has in similar contexts, that the citizens were deprived of
a chance to begin the healing process because they were unable to view
these perpetrators making their confession statements to the court.
Friends, relatives, fellow church-members, and neighbors were not able
to look into the suspect's eyes and judge for themselves what kind of
person would commit such a heinous crime. It was an opportunity lost
because of a needless ban on cameras in federal courts.
As you know, under present law, television coverage of federal
criminal and civil proceedings at both the trial and appellate level is
effectively banned. Since the O.J. Simpson murder trial, many have been
quick to point the finger at the camera as the cause of
``sensationalism'' and public distaste for our legal process. The
empirical evidence to the contrary is overwhelming--the camera shows
what happens; it does not create it. The legislation proposed by
Senators Grassley and Schumer represents an important step toward
removing the cloak of secrecy surrounding our judicial system by giving
federal judges at both the trial and appellate levels the discretion to
allow cameras in their courts under a three-year pilot program. At its
conclusion, Congress and federal judges would be given an opportunity
to review the program. I believe that passage of this legislation will
send a message to judges that giving the public access to courts
through televised proceedings is a right and an opportunity, not an
inconvenience.
There is no compelling reason not to support the passage of such
legislation. The First Amendment right of the public to attend trials
has been upheld by the U.S. Supreme Court and, as the electronic media
have become an increasingly important surrogate for the public in
recent decades, that right logically must extend to audio-visual
coverage of federal judicial proceedings. I should mention here that
TRNDA believes that state and federal law governing television coverage
of the judicial branch should be grounded in a presumption that such
coverage will be allowed unless it can be demonstrated that it would
have a unique, adverse effect on the pursuit of justice or prejudice
the rights of the parties in any particular case. Placing decisions as
to whether or not to ``pull the plug'' on electronic coverage in the
hands of the parties would violate the public's First Amendment right
of court access.
Jurors, prosecutors, lawyers, witnesses and judges on both the
state and federal levels have overwhelmingly reported for the last
decade that the unobtrusive camera has not had an adverse impact on
trials. The pilot cameras program conducted by six federal districts
and the Second and Ninth Circuit Courts of Appeals between 1991 and
1993 was a resounding success, resulting in a recommendation that
cameras be allowed in all federal courts. 48 of the 50 states allow
some manner of audio-visual coverage of court proceedings, 43 allow
such coverage at the trial level, and studies in 28 states show that
television coverage of court proceedings has significant social and
educational benefits.
Technological advances in recent decades have been extraordinary,
and the potential for disruption to judicial proceedings has been
minimized. The cameras available today are small, unobtrusive, and
designed to operate without additional light. Moreover, the electronic
media can be required to ``pool'' their coverage in order to limit the
equipment and personnel present in the courtroom, further minimizing
disruption.
There is no principled basis for admitting the print media into
federal courtrooms and not the electronic media. While both print and
electronic media fulfill the important role of acting as a surrogate
for the public, only television has the ability to provide the public
with a close visual and aural approximation of actually witnessing a
trial without physical attendance. As Justice Stewart once observed,
the Constitution requires sensitivity to the ``critical role played by
the press in America society . . . and to the special needs of the
press in performing it effectively.''
Indeed, video is our society's common language. Eliminating
television coverage of federal judicial proceedings significantly
impacts upon the content of the information conveyed about important
trials, effectively resulting in content-based discrimination.
Because of the federal ban, the public has been deprived of the
benefits of first-hand coverage not only at the district court level,
but also at the appellate level. Consider only a few of the significant
issues that have come before the federal Courts of Appeals in recent
years--issues of great interest to the American public, yet ones that
the public had no opportunity to see and hear:
Whether a civil suit can be brought against the President
of the United States while he is in office based on his private
conduct.
Whether there is a constitutional right to physician-
suicide.
Whether a state may under the First Amendment decree
English to be its only official language.
Whether a class action may proceed against the tobacco
industry on behalf of tens of millions of smokers claiming to be
addicted to cigarettes.
Whether professional baseball owners may unilaterally
rescind the free agency and salary arbitration rules governing their
relations with players.
The public has a right to see how justice is carried out in our
nation. Public scrutiny will help reform our legal system, dispel myth
and rumors that spread as a result of ignorance, and strengthen the
ties between citizens and their government. The courtroom camera not
only gets the story right, it allows victims to have a record of the
proceedings, and to reach a much broader audience. Experience shows
that cameras in the courtroom work and that they do not interfere with
courtroom proceedings or infringe on the rights of defendants or
witnesses.
In the same way the public's right to know has been significantly
enhanced by the presence of cameras in the House and then the Senate
over the past two decades, the legislation proposed by Senators
Grassley and Schumer has the potential to illuminate our federal
courtrooms, demystify an often intimidating legal system, and subject
the federal judicial process to an appropriate level of public
scrutiny. It is time to provide unlimited seating to the workings of
justice everywhere in the United States by permitting audio-visual
coverage of judicial proceedings.
Thank you, Senator Grassley, for the opportunity to testify on
behalf of RTNDA before your committee today.
Senator Grassley. Thank you very much for your experience
in that, and particularly the good record we have had in Iowa
on its use.
Now, Mr. Goldfarb.
STATEMENT OF RONALD GOLDFARB
Mr. Goldfarb. Thank you, Senator Grassley, Senator Schumer.
One of the benefits of speaking last is I can speak a little
more briefly and I have the benefit of picking up on some of
the comments of the members of the subcommittee and the earlier
speakers.
In 200 years of Anglo-American law, we have debated the
profound issues, first, of the problems of in camera
proceedings, and now several years later the problems or
benefits of on-camera proceedings. It is a particular subject
that raises profound constitutional and social implications,
and it happens to be one that I have studied for a long time.
My doctorate degree when I went to Yale Law School was on
the doctrine of constructive contempt, and I read all of the
cases at that point, ages ago, which dealt with the power of
courts to find the print press guilty of contempt for their
coverage of court proceedings on the grounds that it interfered
with the administration of justice. The subject was one that
continued to interest me both as a trial lawyer in the
Government and later after I left the Government.
In the early 1960's, the members of the subcommittee will
remember the then so-called free press/fair trial became a
major issue. The Supreme Court had handled the Shepard case and
the Bill Sol Estes case, which for the first time dealt with
television in courts. The Riordan committee studied the role of
the press and the bar. Committees were set up all over the
country to worry about this problem.
The 20th Century Fund in New York, now the Century Fund,
retained Alfred Friendly, who was the Managing Editor of the
Washington Post, and me to write a book about the free press/
fair trial problem. That was in the mid-1960's, and television
was so new even then that we had only the barest mention in a
chapter called ``The Pen and the Lens'' raising the question of
whether or not the rules should be different for the broadcast
media than it is for the print medium.
In that interim from then until the present time, as you
know, the Supreme Court in 1981, in the Chandler case, ruled
that television per se did not interfere with the
constitutionality of a fair trial, and left it to the States to
fashion their own rules. It was, in the words of Justice
Harlan, the genius of the Federal system to experiment with
rules like this to see what does and does not work.
Several years ago, the 20th Century Fund came back to me
and said now, with the experience that we have now had with the
crucible of Court TV, which then had had about 600 to 700 cases
televised, with the experience of then 48 States and all of the
different studies, let's look at the problem again, and that
resulted in this book TV or Not TV, which was published by the
20th Century Fund and NYU Press.
In the process of my research, I read every State study
that led to every State rule that resulted in permission for
one form or another of televised trial. Every State before they
adopted their rule had a press-bar-media-wiseman/wise woman
committee that ran for from a year to 3 years to study all of
the perceived problems of the impact or potential impact of
television on witnesses, on jurors, on lawyers, and all the
participants to the administration of justice.
And in every one of those studies, the result was once
skeptical lawyers and judges found that the presence of the
television camera, generally unseen, had no impact, and that
the real disturbances in the justice system were what went on
outside the courtroom as opposed to what went on in the
courtroom.
I brought two pictures which graphically make this study
which I can--they are blow-ups of photographs that I have used
in my book. Two of them are pictures outside of the O.J.
Simpson case, one the criminal case, and one the civil case,
where the kind of grotesque paparazzi coverage of people coming
out of the courtroom creates the image that people are so
concerned about with regard to press coverage of trials.
But one of them shows an actual proceeding of the Supreme
Court of Washington, which is now the only State which
televises all of its supreme court arguments. And there you
will see a totally dignified atmosphere which, according to the
Justices of the Washington Supreme Court, typifies the way
those proceedings in that court have been run.
It comes to the question of whether or not there is a valid
distinction between the print medium and the broadcast medium.
In the early days of the Sol Estes case, the concern was that
there would be wires snaking across courtrooms and cumbersome
television cameras getting in the way and inhibiting witnesses.
Of course, we now know that the new technology is such that
those kinds of concerns are well beyond us. The State Trial
Association down in Williamsburg has put out a study that shows
all of the high-tech conveniences that are now built into all
new courtrooms that are being designed.
So then the question remains, well, if we don't have
physical obstructions, what about the impact? What about the
concerns that Judge Becker raised before? All I can say is I
read that Federal study that he referred to. I read the report
of its own in-house committee which recommended that the State
rules be emulated. The Judicial Conference didn't like the
results of the first study. They sent them back to do some more
studies and to answer some more questions, and their own
advisory committee, their own think tank, if you will, came
back recommending that the State rules be followed in the
Federal system as well.
So what basis do we have for presuming in this one
situation that people who are being perceived widely are going
to misbehave in a worse fashion than when they are acting
privately? It goes against everything that we operate under in
every other aspect of life. We presume that people behave
better when they are being observed than when they are not
being observed.
But in this one context, somehow or other some judges have
drawn the conclusion to be able to stop televising Federal
trials on the notion that somehow or other the mere knowledge
that a camera is there is going to have everybody acting out in
a way that just belies all of the studies that have been done.
In addition to the studies by the States and the Federal
Judicial Center, I went to the Lexis-Nexis machinery and found
every study that had ever been made by sociologists, pollsters,
and other social scientists to try and determine
scientifically, such as you can under these circumstances,
whether there really is something to be said for the fact that
the presence of an unseen eye would somehow or other disrupt
the participants.
Every one of those studies, as well, indicated that what
might have seemed to be rationale conclusions really had no
basis. The general consensus even by skeptics was after a while
the camera was like a piece of furniture in the room, and after
30 or 40 seconds one failed to even notice it.
I would like to come to just one last point that was raised
by Senator Specter because it is a particular passion of mine.
Because I am an attorney who is a member of the Supreme Court
bar and happen to live in Washington, DC, for the 35 years that
I have practiced in this city I have had the extraordinary good
fortune of being able to go to our Supreme Court whenever there
was a case that interested me.
And it has been a highlight of my education to say that I
heard the Bakke case argued, I heard the right to die case
argued. I watched Justice Harlan deliver his Griswold opinion.
And it seems to me absurd that that is limited to those few of
us who by chance happen to be here. All of the arguments that
anybody has made about televised proceedings go out the window
with regard to the Supreme Court. Yet, it has been the Supreme
Court which has been the most adamant opponents to the process.
Interestingly, when Justice Burger was the Chief Justice on
the Court, he was vehemently against cameras in the Court. When
he left the Supreme Court, in a speech at the ASNE he said he
had changed his mind and now saw that there was an edifying
possibility.
When Justice Rehnquist came up for confirmation as Chief
Justice, he was asked specifically what his position would be
if he were Chief Justice and he said he had an open mind to
broadcasting proceedings of the Supreme Court. Yet, when he
took that role as Chief Justice, he not only forbade radio
broadcasting of arguments before the Supreme Court, but
threatened a lawsuit to somebody who printed the oral arguments
which are present in the archives of some key cases that have
been argued in the Supreme Court.
So I heartily endorse that part of your bill which reaches
out to the Supreme Court. I mean, one can envision a kind of
quintessential separation of powers conflict if the Supreme
Court were to say we will decide. But in view of its own
opinions to date and in the last decade about questions of
First Amendment in the Court, it is going to be very hard for
them to do that.
[The prepared statement of Mr. Goldfarb follows:]
Prepared Statement of Ronald Goldfarb
---------------------------------------------------------------------------
Ronald Goldfarb is a Washington, DC attorney and author. He was a
prosecutor and defense counsel in the United States Air Force, and a
member of the organized crime section of the Department of Justice
during the Kennedy Administration. He has written ten books, including
his most recent, TV or not TV: Television, Justice, and the Courts, a
Twentieth Century Fund Book published in 1998.
---------------------------------------------------------------------------
Thank you for the opportunity to address the Sub-committee on S.
721, a proposed bill to permit televising trials and appeals in the
federal courts in the discretion of the presiding judge during a three-
year experimental period. It is similar to the bill passed by the House
recently, except that that bill requires the consent of the parties. In
my opinion, however salutary, neither bill goes far enough, for reasons
I will explain.
As this committee knows, since the Supreme Court's opinion in
Chandler in 1981, the states, all but one now, have studied the subject
of televised trials and concluded that the positive and educational
aspects of public information outweigh any potential negative impact on
the fairness of the judicial process. In state after state, initial
concerns about lawyers and judges misbehaving, witnesses and juries
being negatively affected were assuaged, even by once skeptical
observers and experts. The federal system conducted its own three-year
study in 1991, concluding that fears about television in courts were
misplaced. The Judicial Conference Committee researchers recommended
following the state rule. Despite almost a quarter century of study and
experience with this one medium, with very few exceptions (see pages
88-94 of my book) the federal court system remained reluctant to move
into the 20th century, much less the 21st.
S. 721 would move the federal court system a modest step into the
mainstream. I believe it is time to make the full plunge. I would not
allow witnesses to control the judge's discretion, except in
extraordinary cases where the youth or personal nature of the testimony
requires special controls--and in those cases I would leave it to the
judge to make that decision. I believe that recent federal law, spelled
out in a list of Supreme Court Cases (see pp. 47-54 of my book), makes
it clear that the First Amendment requires opening trials to television
unless without closure there would be ``a substantial probability that
irreparable damage to the defendant's fair trial right will result.''
The one seeking closure must show that less drastic alternatives to
closure will not adequately protect the fairness of the trial, and that
closure will effectively protect the defendant from the perceived harm.
In other words, the presumption in all cases should be that trial and
appellate procedures are open, and those wishing to curtail television
coverage of any proceedings have the burden of demonstrating clear
reasons why that should be the case.
Finally, I commend the Committee for focusing on the most
interesting aspect of this issue--televising the open proceedings of
the Supreme Court, which is explicitly allowed by S. 721. Here, more
than any other situation, the profound educational aspect of public
information about the Judicial process and about fundamental social
issues eclipses the insignificant potential problems. There are no
witnesses and no juries to be concerned about. The judicial members and
legal advocates are the most renowned, as a rule, and thus least likely
to be affected by the presence of an unseen camera and audience. And
the need for the public to know about the treatment of the country's
most significant issues considered in the one crucible of government
which is least understood is manifest. The late appellate judge Skelly
Wright called the operations of the Supreme Court a ``continuing
constitutional convention,'' and I agree with him that the American
public and the legal system would profit from observation of those
proceedings.
Senator Grassley. I will defer to Senator Schumer because
he has to go.
Senator Schumer. Well, I thank you, Mr. Chairman. I want to
thank all three witnesses for their statements. I just had one
question not quite on this subject, because I agree with the
witnesses and I think they have done excellent testimony. My
question is somewhat related. I will beg the indulgence of the
Chair.
I wanted to ask Mr. Busiek your opinion. There is something
else that has been going on here that may hurt us a little bit,
and that is Court TV is supposedly going to offer a new program
called ``Confessions,'' where each episode will present the
highlight of confessions of convicted murderers and rapists and
other violent criminals. The network will split the screen and
show reenactments of the crime along with each confessor.
As a well-experienced and judicious person from the
television side, what do you think of this? Do you think that
it undermines the sorts of programs and arguments of Court TV
and other networks who claim to want to show trials for public
interest as opposed to finding the most sensationalistic
coverage and shooting for the highest ratings? Also, is such a
show fair to the victims of crime and their privacy?
My view is that Court TV is harming its own reputation for
serious, full coverage for the sake of ratings on a show that
seems more like Jerry Springer. Do you have an opinion on that?
Mr. Busiek. Well, I only heard of this program earlier
today, so I don't know that much about it, but that has never
stopped me before. Would this be before a trial or, for
instance, after a guilty plea that these tapes would be shown?
I don't know. I think it would make a big difference.
Senator Schumer. People who have been convicted.
Mr. Busiek. People who have been convicted. I don't see any
harm in it. I mean, I think the case is done. I think it is a
completely separate thing than what we are talking about today.
I am sure that Court TV has done and will continue to do things
that you or I may agree with or may not agree with.
I think the overriding good in terms of what they have been
able to do in terms of shining that light into our court system
is good. They are a business like a lot of media companies are
a business, so it is not necessarily a bad thing just to do a
popular program that might be getting ratings. So, that is part
of it.
But I think if a case has already been adjudicated and
these tapes are played, I personally--again, speaking from not
a lot of knowledge on it, I would not have a problem with that.
Senator Schumer. Does anyone else want to comment on it? I
find there is something wrong with it.
Mr. Goldfarb. Well, I think so, but when you talk about
reenactments, E! TV is doing that already, and it seems to me
that is a different kind of question. That is a question of
taste. The ultimate answer, I think, is gavel-to-gavel
coverage.
Senator Schumer. Right.
Mr. Goldfarb. It is the answer to the 50-second sound bite.
It is the answer to the ``snippets,'' but that is what we get
now by the print medium. In my book, I report Leslie Maitland,
who is a very illustrious reporter for the New York Times who
covered the Hurricane Carter, grieving about the fact that she
would be there all day watching proceedings that she was very
critical of and was limited to 800 words. That is the classic
snippet, as is the 50-second sound bite that Judge Becker was
talking about.
I don't know that you can keep people from doing that, but
they would be seen to be the distortions that they are if you
had gavel-to-gavel coverage. C-SPAN has offered to do it, to
have no advertisements. MSNBC, I think, has offered to put it
on the radio, again, with no advertisements and to do gavel-to-
gavel coverage.
Senator Schumer. Yes, I agree with you and with Mr. Busiek
that this is a question of taste as opposed to a question of
legality. I just think it is in bad taste. And I hope it
doesn't interfere with our desire to get cameras in the
courtroom, and I would like to make a distinction between the
one and the other. I agree with you. The best antidote to that
would be to have the whole trial shown.
Thank you, Mr. Chairman. Again, I thank the witnesses.
Senator Grassley. On the point you just brought up, I think
the extent to which it adds to the violence that we already
have enough of on television, and the sex that we already have
on television and all things of that nature, and how that leads
particularly younger people to be immune to thinking about the
results of their acts, it leads to a general lack of civility
in society as a whole.
You know, I think we have to start judging what the impact
is upon society that causes people to be violent toward each
other without a second thought. Now, there are a lot of people
that are violent toward each other with thought of being
violent. But too much we are hit today with people just acting
out of instinct and what that has done to a lot of aspects of
our society, not just that people are hurt and killed, but a
lack of respect for each other, or maybe another way to put it
is respect for each other, is the very basis for a civil
society.
Senator Schumer. Well put, Mr. Chairman.
Senator Grassley. I just have two or three questions. The
first one builds upon something Mr. Busiek has mentioned, and
these were some compelling cases where cameras played an
important role and a Federal case where there were not cameras
and the impact that that had.
In the 20 years of experience in State courts, do any of
you have any examples where cameras caused any of the problems
that the Judicial Conference says would take place, like
terrorist attacks or denying defendants fair trials? And I will
ask all three of you, including Mr. Busiek if he knows of any,
or Professor Wardle, or from your standpoint of your research,
Mr. Goldfarb.
Mr. Wardle. Mr. Chairman, I am not aware of any studies or
cases in which there has been the terrorist problem. On the
other hand, we are all aware of examples in which presence of
media has had a disruptive effect on trials. The point is that
the bill allows the judge the discretion to put on conditions
to prohibit those events from occurring, or, if they occur, ban
the cameras.
Frankly, Your Honor--excuse me, Senator.
Senator Grassley. It sounds better. [Laughter.]
Mr. Wardle. It sounds better. Well, you are both Honorable
Senator and Chairman.
In fact, there are violent episodes that occur in courts,
for instance, with respect to divorce, child custody, child
support. Not a day goes by that you can't read in a newspaper
about someone who has gotten angry and done some violent thing
in connection with those. Those occur, by the way, mostly in
State courts where these proceedings are allowed.
The point is that there are methods by which they can
protect and prevent that. They simply say this proceeding is
not going to be broadcast to exacerbate the feelings, the
animosity, or the situation. I am not aware of any terrorist
examples at all.
Senator Grassley. Mr. Busiek and then Mr. Goldfarb.
Mr. Busiek. I am not aware of any of these problems. I
think it is important to point out that in Iowa, as is the case
in a lot of States, the onus is on the media to make this thing
work. That is the one thing we can cooperate on. I mean,
reporters are famous for not cooperating with one another. They
are sort of an unruly sort, but on this all the newspapers, the
radio stations, cooperate to make this thing work.
There are 13 media coordinators spread regionally around
the State, and those are reporters, people in newsrooms, and
they work with the other folks in those newsrooms to make sure
that this is a coordinated effort and that you don't have a
bunch of people running to the judge to work things out.
We get our issues on the table. The media coordinator goes
to the judge and we try to work problems out before they occur.
The judges in Iowa have been extraordinarily supportive. We had
a banquet a couple of years ago with judges and media and
lawyers to actually celebrate the EMC program in Iowa. I think
it has brought the media and the judiciary closer together. I
don't know if that is a good thing or a bad thing. I would like
to think that it is a good thing.
Senator Grassley. Mr. Goldfarb.
Mr. Goldfarb. In my experiences in courtrooms, I have not
had the kind of problem that has concerned Judge Becker. The
problems that I have noted are the problems in the picture that
I showed you, which is the press hanging around outside of
people's homes, sticking cameras in their faces, running
alongside their cars, adding those kinds of pressures. Those
are out-of-court problems, but I have never seen that in the
court.
In fact, the few unpleasant experiences that I can recall
in courtrooms of judges, I think, acting, shall we say, with
eccentricities probably would never have occurred if there was
a camera in that courtroom, but only happened because they ran
those courts and those particular cases as little oligarchies.
I think the presence of the public in those situations would
have been salutary.
Senator Grassley. I am going to ask Mr. Busiek and then the
other two of you to comment on the same point that I am making
and asking his opinion. Judge Becker pointed out that people's
privacy rights would be compromised if we allowed cameras in
the courtrooms. You probably deal with this issue everyday.
This is what Judge Becker said, ``Much of the evidence
introduced may be of an extremely private nature, revealing
family relationships and personal facts, including medical and
financial information.''
What practices and procedures exist in the States that
protect privacy rights? Maybe you can just speak for Iowa, but
either case.
Mr. Busiek. Well, these issues do come up from time to
time. Lawyers have the ability to object in the middle of a
trial about a certain witness' face being shown on television,
about certain testimony if it is of a sensitive nature. It can
often be of a sexual abuse kind of nature. And I think the
media in Iowa have a terrific track record of cooperating and
trying to work to make that happen. We want to make sure that
our rights aren't being abused, as well, but we talk about in
chambers and we try and work those things out.
In response to Judge Becker's comments, I would say that a
trial is a public event. Things are going to be said in public
that may well be embarrassing to the people taking part in it,
but I think every one of the potential objections that he
raised could also be caused by print coverage, as Senator
Schumer pointed out.
I haven't heard that anyone has asked questions of a
witness or judges or lawyers if they were at all affected in
any way by the presence of a newspaper reporter in the
courtroom. My guess is that some would be. You know, we can
have a very orderly process by just closing everything off. But
this is sometimes a messy process and I just tell you that the
presence of a camera in the courtroom does not add to any
problems that are already inherent in having a public trial.
Senator Grassley. Professor Wardle.
Mr. Wardle. I would agree with that, Mr. Chairman. I
believe that there are important issues. And I think Judge
Becker's statement is a very thoughtful statement, but it
doesn't go to the question that is addressed by this bill. The
question addressed by this bill is should judges have the
discretion to allow cameras in the courtroom. The objections go
to the question of, if so, how, when, under what circumstances,
where are the boundaries to be drawn, what limits.
And one of those concerns is to protect privacy of
individuals. Yes, you can establish guidelines and rules on
certain kinds of cases or certain kinds of issues. Or when
there is a witness who is particularly distraught, you might,
in fact, say we won't allow cameras here because this witness
is extraordinarily sensitive, or it is a child.
So, yes, there are very valid concerns, but the bill
protects the discretion of the judges to deal with those
concerns, as judges are capable of doing. Our Federal judges
are not spineless creatures. They know how to exercise
discretion to protect the fairness of the administration of
justice and the decorum of a courtroom. I have no doubt that
they will be able to do that under this bill.
Senator Grassley. Mr. Goldfarb, if you have anything to
add.
Mr. Goldfarb. No, just that the different State rules are
not unlike the one in Iowa. Almost all of them have a provision
which allows the judge in cases where you have a witness of
tender age or a sexual crime or unusual elements that don't
generally prevail--a witness whose life might be threatened,
extraordinary situations like that--for the judge to make
exceptions to the general rule, which is that despite the fact
that there might be more publicity, I mean the question is
whether or not there is enough difference in degree to make it
a difference in kind.
And you can't sidestep the question that if you know--if we
today knew that our testimony was going to be broadcast to
hundreds of millions of people all over the world, I suppose my
anxiety level would be a little bit higher. I don't think I
would be acting out or trying to play the fool, but I am sure
it would have some impact on me.
But experience seems to indicate that that is, number one,
something that can be kept in balance and that evaporates over
time, and more importantly that the issues discussed at this
proceeding, if they are of interest worldwide, ought to be
heard and considered worldwide. That is an overriding interest
of public information.
Senator Grassley. Let's go to another issue that Judge
Becker argued about, and that is that the financial costs would
be very great if cameras were allowed. So the question is has
that been a problem that has come up in the State experience,
whatever thoughts you might have on that issue from each of you
on the panel?
I will start with you, Mr. Busiek.
Mr. Busiek. I am not aware of any costs in the State system
at all. I heard him mention media coordinators. As I have
already testified, in Iowa that is handled by the media
themselves, not by the courts. I am not aware of any costs
whatsoever.
As courtrooms are remodeled, I think it is up to any
jurisdiction to decide whether they want to put in some cabling
for the future. We have been consulted on that at the Polk
County Courthouse in Des Moines. We have assisted with that, we
have helped pay for some of that. I am not aware that there is
any significant cost.
Senator Grassley. Professor Wardle.
Mr. Wardle. I believe that there are costs, Mr. Chairman.
In reality, the judge will have to consider this. The question
will be raised. The parties may, in fact, submit briefs or make
motions. So there are the indirect costs, but it is another
issue that can come up. But they are not substantial.
Senator Grassley. In that instance, though, it would be if
there was going to be a dispute if there be cameras in the
courtroom.
Mr. Wardle. Right, if someone objects.
Senator Grassley. If there wasn't any dispute, there
wouldn't be a cost, right?
Mr. Wardle. That is right. There wouldn't be a cost, except
the minor cost that the judge would independently think about
it for 2 minutes or 10 minutes, or whatever. But those are
insignificant and unsubstantial. They are very real, and there
could be equipment costs down the road, but that is, I think,
normal and not extraordinary. I think it is well within what we
expect as the courts continue to cope with changing
circumstances.
We now have electric lighting in courts, a cost that we
didn't have when the Constitution was written and Article III
was created. So, yes, there are minor costs, but I don't
believe they are substantial, except in the rare case. So I
think it is an insignificant point.
Senator Grassley. Does your research say anything on that,
Mr. Goldfarb?
Mr. Goldfarb. I would have to disagree, and the committee
should take note of the fact that the Judicial Conference went
to the people who conducted its study after they came up with
their results and asked them what the costs would be to equip
Federal courts with the equipment necessary to televise trials
per their recommendation. And they came back with a figure of
$70,000 to $130,000, I think, if I have the numbers correctly,
per courtroom.
You all in Congress have the power of the purse. If you----
Senator Grassley. That sounds a little ridiculous, though,
doesn't it?
Mr. Goldfarb. Well, that sounds like it would be very high.
Senator Grassley. Well, I mean it is a ridiculous figure
just on the surface. I haven't studied their rationale for it,
but you are reporting that is what they--
Mr. Goldfarb. That is what the Judicial Conference study
group advised the Judicial Conference.
If you did the ideal, which is what the State of
Washington, for example, did in its supreme court where they
have no cameras--there is just a little hole in the corner of
the room, fiber optic connections to a privately-funded cable
network that is three blocks and that televises all State
proceedings. That is all done with foundation money and some
State legislative money.
But Congress has the power of the purse, I needn't tell
you, and to the extent that you feel there is an overriding
public information value to this, it is something you can take
care of. But I wouldn't ignore it and I wouldn't say that it is
de minimis.
Mr. Busiek. Might I just add that these two murder trials
with the child abuse case were in courtrooms that had never had
televised coverage before, both cases handled by judges who had
never handled an expanded media case before. It is our
equipment. We came in, set the stuff up. There was no cost to
that courthouse system whatsoever and it worked just fine. So I
am not understanding what could cost that kind of money. I am
not saying that they didn't report it.
Mr. Goldfarb. Well, I mean it is a policy question. Does
the Federal judicial system want to have a contract with ABC or
CBS or a pool of reporters to come in and, in effect, provide
television coverage? I hadn't heard that suggested even by the
networks. Case by case, individual stations may decide it is a
worthwhile investment, but when you are talking generically and
systemically--again, I am not saying it is a reason for not
doing it, but I am saying it is a legitimate question, it is a
legitimate problem. Congress is going to have to deal with it.
If, in fact, a rule was passed saying that from now on all
Federal courts are going to be televised, then the next
question is, well, who is going to pay for the camera. And in
era where this Government is quite concerned with what we do
with our surplus, whether there is a surplus, what the
priorities are, I would say this is probably a relatively low
priority in the grab bag of what is going to happen with
Federal funds.
Senator Grassley. My last question will be to Professor
Wardle, and this is something Judge Becker made a point of that
the primary concern of Federal judges is to make sure that
defendants receive a fair trial. It seems to me that there are
a number of other constitutional rights that a judge needs to
be concerned about.
So would you agree that there are other important rights
and issues that a Federal court needs to be looking at, in
addition to the rights of the defendant?
Mr. Wardle. Yes, Senator Grassley, I would. I would also
agree with Judge Becker that in a criminal case the predominant
concern is fairness to see that justice is done, a fair trial
is received by the defendant. But there are other concerns, as
well. The Sixth Amendment is a multi-faceted amendment and
there are other rights, as well, that have to be protected--
Fourth Amendment rights, First Amendment rights, as well.
So, yes, I agree that there have to be other constitutional
and important public considerations taken into account. Judges
don't just have one rule that they have to apply. The
Constitution is a much more textured and complete document than
that. So I think it is a bit of an oversimplification to say
that that is the only consideration. Yes, there are many other
constitutional and legal factors that courts have to consider.
Speedy trial they are required to consider, which sometimes is
in tension with the right to a fair trial. So, yes, there are a
lot of factors that have to be considered.
Senator Grassley. That is the last of my questions, and I
suggested to the first panel and suggest to you that there not
necessarily will be, but there may be some questions submitted
for answer in writing. We would appreciate it very much if you
would have those answered in two weeks. In the case of any of
you who haven't dealt with that process, my staff would be
helpful to you in that process.
Thank you very much.
[Whereupon, at 4:07 p.m., the subcommittee was adjourned.]
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Additional Submissions for the Record
__________
Administrative Office of the U.S. Courts
judicial conference opposes bill to bring cameras into federal courts
A representative of the Judicial Conference of the United States
today told the Senate Judiciary Subcommittee on Administrative
Oversight and the Courts that a bill to allow cameras in courtrooms
could ``seriously jeopardize'' the rights of citizens to receive a
constitutionally guaranteed right to a fair trial.
Chief Judge Edward R. Becker of the U.S. Court of Appeals for the
Third Circuit appeared before the subcommittee to express the
Judiciary's strong opposition to cameras in the courtroom. The bill, S.
721, would allow media coverage of court proceedings.
``The Judicial Conference in its role as the policy-making body for
the federal judiciary has consistently expressed the view that camera
coverage can do irreparable harm to a citizen's right to a fair and
impartial trial. We believe that the intimidating effect of cameras on
litigants, witnesses, and jurors has a profoundly negative impact on
the trial process,'' said Judge Becker. ``Moreover, in civil cases
cameras can intimidate civil defendants who, regardless of the merits
of their case, might prefer to settle rather than risk damaging
accusations in a televised trial.''
A Federal Judicial Center study of a three-year Judicial Conference
pilot program allowing electronic media coverage of civil proceedings
in six district and two appellate courts, found that 64 percent of the
participating judges reported that, at least to some extent, cameras
make witnesses more nervous than that otherwise would be. In addition
46 percent of the judges believed that, at least two some extent,
cameras make witnesses to appear in court, and 41 percent found that,
at least to some extent, cameras distract witnesses.
Judge Becker also pointed out that as an educational tool for the
public, the Judiciary's own community outreach efforts have been
demonstratively more effective than proposed camera coverage in
presenting basic educational information about the legal system. A
Federal Judicial Center report on media coverage during the three-year
pilot project concluded that of 90 stories analyzed, there was an
average of 56 seconds of courtroom footage per story and most of the
footage was voiced over by a reporter's narration. Seventy-seven
percent failed to identify the type of proceeding involved.
``Television news coverage appears simply to use the courtroom for a
backdrop or a visual image for the news story which, like most stories
on television,'' said Judge Becker, ``are delivered in short sound
bites and not in-depth.''
The Judiciary has repeatedly examined the issue for over six
decades. Criminal rules adopted in 1946 included a prohibition on
electronic media coverage of criminal proceedings. In 1972, the
Judicial Conference adopted a prohibition against ``broadcasting,
televising, recording or taking photographs in the courtroom and areas
immediately adjacent thereto . . .'' that applied to criminal and civil
cases. In 1988 the Conference revisited the issue and recommended the
Judiciary begin a three-year pilot program allowing electronic media
coverage of civil proceedings in six district and two appellate courts.
A 1994 study of the pilot project by the Federal Judicial Center
convinced the Judicial Conference and the potentially intimidating
effect of cameras on some witnesses and jurors was cause for
considerable concern. In 1996 the Conference again considered the issue
and voted to strongly urge each circuit judicial council to adopt an
order not to permit the taking of photographs or radio and television
coverage of proceedings in district courts. The Conference left it up
the appellate courts whether or not they would adopt similar rules, and
all but two courts of appeals subsequently adopted prohibitions.
``This is not a debate about whether judges would be discomfited
with camera coverage,'' Judge Becker told the subcommittee. ``Nor is it
a debate about whether the federal courts are afraid of public
scrutiny. They are not. . . . It is also not about increasing the
educational opportunities for the public to learn about the federal
courts or the litigation process. . . . Rather this is a decision about
how individual Americans, whether they are plaintiffs, defendants,
witnesses, or jurors, are treated by the federal judicial process. It
is the fundamental duty of the federal Judiciary to ensure that every
citizen receives his or her constitutionally guaranteed right to a fair
trial. The Judicial Conference believes that the use of cameras in the
courtroom could seriously jeopardize that right. It is the concern that
causes the Judicial Conference of the United States to oppose enactment
of S. 721.''
______
American Bar Association,
Governmental Affairs Office,
Washington, DC, September 25, 2000.
Hon. Charles E. Grassley,
Subcommittee on Administrative Oversight and the Courts, Committee on
the Judiciary, U.S. Senate, Washington, DC.
Dear Mr. Chairman: We are writing to commend you for holding a
hearing September 6, 2000, on the issue of ``cameras in the
courtroom.'' We would appreciate your including this letter in the
hearing record.
The Association has had a long and cautious history with respect to
broadcast coverage of federal judicial proceedings. In 1937, the
Association formulated its original ban on camera coverage as Canon 35
of the then Canons of Judicial Ethics because of concerns about
preserving the dignity and decorum of the courtroom, safeguarding the
right to a fair trial in criminal proceedings, and avoiding the
possible adverse impact on the fact finding process and the
administration of justice.
During the 1970s, many state courts started to permit camera
coverage, generally with favorable results. After observing such
successful experimentation in the states, and following the 1981
unanimous decision in Chandler v. Florida, 449 U.S. 560, holding that
due process does not require an absolute ban on cameras in the courts,
the Association revised its policy to authorize the presiding judge to
permit broadcast coverage of criminal proceedings consistent with the
right to a fair trial and subject to express guidelines.
In 1989 an ABA Task Force on Outreach to the Public recommended
televised coverage of oral arguments in the United States Supreme
Court, based on the belief that it would generate increased
understanding and respect for our judicial system. The House of
Delegates, our policy-making body never considered this recommendation,
and it therefore does not constitute official ABA policy.
In 1991, the Judicial Conference of the United States began a
three-year pilot program to broaden coverage of selected civil court
proceedings. The Association wholeheartedly endorsed this action. At
the conclusion of the pilot program, the Judicial Conference voted to
terminate all electronic coverage of courtroom proceedings, despite a
favorable evaluation by the Federal Judicial Center. Many ABA members
felt that the debate over electronic coverage should not be closed and
that the evidence supported the conclusion that such coverage is not
detrimental to the administration of justice. After careful review of
these developments, the Association adopted policy in 1995 urging the
Judicial Conference to authorize further experimentation with
electronic media coverage.
Today, five years later, the Association reiterates its position,
which, if anything, is strengthened by mounting evidence of the
benefits derived from expanded medial coverage of courtroom
proceedings.
Results from a recent study commissioned by the Association to
assess public perception of the U.S. justice system demonstrate in
stark terms why public access to our federal courts is so desirable.
Forty-seven percent of those polled felt that the courts do not treat
all racial and ethnic groups the same. We are concerned that such
widespread public perception of bias will erode public confidence in
our courts. The study also disclosed that the public's knowledge of the
justice system is quite uneven and, for a great many, insufficient;
however, more than two-thirds of the respondents want to improve their
knowledge. This is very good news because the study also found that the
more knowledge people have about the justice system, the greater their
confidence and respect for the system. Bringing the public inside the
courtrooms of America so that they can learn from what goes on there
can only be accomplished on a broad scale through electronic media
coverage.
Allowing federal judges to decide, on a case-by-case basis, whether
to allow electronic media coverage of court proceedings under
guidelines promulgated by the Judicial Conference will be good for the
courts and good for the public. Courts that conduct their business
openly and under public scrutiny protect the integrity of the federal
judicial system by guaranteeing accountability to the people they
serve. Court proceedings that are accessible and visible benefit the
public because of the invaluable civic education that results when
citizens witness federal courts in action.
We share your conviction that the debate over electronic media
coverage of federal court proceedings is not over and that additional
experimentation should be permitted, and we thank you re-focusing the
nation's attention on this issue. Our latest policy and its
accompanying report (though not itself policy) is attached for your
further examination.
Sincerely,
Robert D. Evans.