Cameras in Court

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CAMERAS IN COURT

Cameras and courtrooms have long had an uneasy relationship. Blaming cameras for disrupting trials, the american bar association (ABA) led the drive for their removal in the mid-1930s. The effort succeeded: all but two state courts banned them, and Congress prohibited them from all federal trials. But the television era ushered in new problems, and courts eventually were forced to grapple with the constitutional question of whether TV cameras are injurious to a defendant's right to a fair trial. In 1965, the U.S. Supreme Court appeared to say they are, in Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543, overturning a conviction because cameras had denied a defendant his due process rights. But the Court changed its mind in the 1981 case of Chandler v. Florida, 449 U.S. 560, 101 S. Ct. 802, 66 L. Ed. 2d 740. Reacting to the permissiveness of Chandler, many states passed legislation allowing televised trials. And from 1991 to 1994 some federal courts conducted an experiment with cameras.

Photographers lost their place in court in the early 1930s thanks to a highly sensational trial, and it would take four decades for them to regain it. In 1934, nearly 700 reporters and photographers descended on the New Jersey town where Bruno Hauptmann was on trial for kidnapping and murdering the baby of famous aviator Charles A. Lindbergh and author Anne Morrow Lindbergh. The trial judge allowed still photography, but was unprepared for the barrage of flashbulbs and the presence of a newsreel camera that was smuggled inside the court. Decrying the media circus that resulted, the ABA in 1937 called for prohibiting photography in its Canons of Professional and Judicial Ethics. At the same time the U.S. Congress amended the Federal Rules of criminal procedure to ban cameras and any form of broadcasting from federal courts. All but two states—Texas and Colorado—gradually adopted the ABA ban. Later, Texas permitted television cameras and it was a Texas criminal case that led to the next stage of development in this area of U.S. law.

In 1965, the U.S. Supreme Court took up the constitutional issue in Estes. This case involved a claim by a convicted swindler that the televising of his heavily publicized trial had deprived him of his right to due process under the fourteenth amendment. The counterargument advanced by the state of Texas is still the one most pro-camera supporters continued to make into the early 2000s: cameras neither caused distractions nor prejudiced the trial and in fact served the public's right to know in a manner both educational and likely to promote respect for the courts. The Supreme Court sided with the defendant. Emphasizing the obtrusive technology used in the courtroom, from fat cables to the red light on cameras, the Court decided that the trial had not been fair and overturned the conviction. Yet, to many observers, Estes appeared to stop short of announcing that all photographic or broadcast coverage of criminal trials is inherently a denial of due process; it focused narrowly on the particulars in Billie Sol Estes's case. More important, observers noted, the decision looked to the future. "When the advances in these arts permit reporting by … television without their present hazards to a fair trial," Justice tom c. clark wrote for the majority in Estes, "we will have another case."

Developments in the 1970s changed the picture. Technology had improved, making TV cameras far less disruptive, and the electronic media was demanding the same access to trials enjoyed by the print media. The ABA became much more tentative about its hard-line position. Its Committee on Fair Trial-Free Press recommended that the ABA revise its standards. Encouraged to experiment, a number of states tried short-term pilot programs as a first step toward changing their laws. Then, in 1978, the Conference of State Chief Justices voted 44–1 to approve a resolution allowing the highest court of each state to set its own guidelines for radio, TV, and other photographic coverage. By 1980, 19 states permitted coverage of trial and appellate courts, three permitted coverage of trial courts only, six permitted coverage of appellate courts only, and 12 others were considering the issue.

The U.S. Supreme Court provided the decisive push with its ruling in Chandler in 1981. Chandler revisited the Estes decision of 16 years earlier and on quite similar terms: in Florida, two men convicted of burglary claimed that televising their trial over their objections was a denial of due process. At the time Florida was following a pilot program for televising and permitting

still photography at state trials under canon 3A(7) of the Florida code of judicial conduct. The parties in Chandler read Estes differently: the appellants argued that Estes meant that the televising of criminal trials is inherently a denial of due process, whereas the state claimed that Estes did not establish any such constitutional rule. Seeking to clarify the earlier ruling, which had comprised no less than six opinions, the Supreme Court agreed with Florida. It held that states could provide access to the electronic media regardless of whether defendants wanted it. Moreover, the burden of showing how cameras have a prejudicial effect on a given trial would fall on the defendant. Chief Justice Warren E. Burger's majority opinion cautioned, "Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment."

The freedom to experiment brought cameras firmly into state courts. The ABA abandoned its prohibitive stance and more states began conducting experiments of their own. The launch on July 1, 1991 of court tv, a cable channel that provided televised trial coverage of newsworthy cases, sought to further legitimatize the use of cameras in the courtroom. By 1995, 47 states permitted some form of televising of state trials. But in 1994, the federal court system chose otherwise. The federal judicial conference of the united states authorized a three-year experiment in 1991 that permitted camera coverage of federal civil trials. Most judges who participated in the experiment, which involved

Judge Wapner and The People's Court

Before televised trials became commonplace, there was The People's Court. This highly popular syndicated TV program ran from 1981 through 1993 and featured retired judge Joseph A. Wapner, of the California Superior Court. Millions of viewers tuned in daily to watch Wapner hear actual cases from small-claims court. The parties agreed to submit to his judgment of their sometimes petty, and often quite funny, disputes, which included claims for fender benders, complaints about plumbing jobs, and even a plaintiff who sued when a liquor store that had sold him a flat can of beer refused to give him a fresh one. The ground-breaking The People's Court probably did more than any other program before it to open the way for the reality programming tide that swept civil and criminal trials onto television. It also popularized understanding of at least one kind of courtroom process, that of small claims.

The genius of The People's Court was its verisimilitude. The program operated by the rules of California's small-claims courts: no lawyers were allowed, aggrieved parties represented themselves, and the damage limit was $1,500. To find participants for the show, Ralph Edwards Productions combed court dockets for cases that were essentially matters of principle and then invited the parties to appear on the program. On the show, as in real life, both parties told their sides of the story to the judge, whose decision was final. The show's 12-year run featured more than 5,000 cases.

The affably grumpy, no-nonsense Wapner certainly knew his profession. The former president of the California Judges Association had earned degrees in philosophy and the law from the University of Southern California in the late 1940s, had practiced law for a decade, and had tried civil and criminal cases for twenty years before retiring from the bench in 1979. His TV rulings were commonsensical, swift, and just. The victim of a bum can of beer, for instance, was awarded eighty cents. In another case, one man in a romantic love triangle had bitten off the ear of another rather than give up the woman in question; Wapner awarded the one-eared man $1,500 for pain and suffering. As part of the show's terms, the production company paid all awards, and the aggrieved parties merely agreed to call it a day after the judge passed sentence.

The effect of The People's Court has often been debated. The show may have encouraged litigiousness, according to such critics as noted attorney alan m. dershowitz and Judge Abner J. Mikva, of the U.S. Circuit Court of Appeals for the District of Columbia. It is undoubtedly true that the use of small-claims courts increased in the 1980s after the show began airing. Others found in Wapner a traditional model of fairness: in a 1989 essay in the University of Chicago Law Review, Justice antonin scalia, of the U.S. Supreme Court, described Wapner as a descendant of Solomon and Louis IX of France. Wapner himself saw the program as educational.

To the public, which made The People's Courtthe fifth-highest-rated syndicated show in the mid-1980s, Wapner became the best-known judge in the United States. A 1989 Washington Postpoll found that fewer than 10 percent of respondents knew the name of Justice william h. rehnquist, of the U.S. Supreme Court, but more than half could identify Wapner. Wapner published the book A View from the Benchin 1987. After the show's cancellation in 1992, he served as president of the board of directors of the Brandeis-Bardin Institute, a Jewish cultural organization in California.

As tastes in daytime television changed in the 1990s, Wapner's descendants reflected the times. The era of no-holds-barred reality TV had dawned, and into it in 1996 barreled Judge Judy. If the betrayed and the broken-hearted went on The Jerry Springer Show to smash chairs, Judge Judy was where they settled their legal differences for the price of a tongue-lashing from retired New York City judge Judy Sheindlin. Averaging 9 million viewers per day, Sheindlin rarely failed to remind disputing parties of their shortcomings.

The huge success of Judge Judy spawned competition. In fact, a brief revival of The People's Court between 1998 and 1999 featured former New York City mayor Ed Koch hamming it up at the gavel. Similarly, Divorce Court, originally a 1960s show with actors, reappeared with real couples ready to untie the knot on camera. Other shows, such as Judge Mills Lane, covered the familiar territory of small claims cases being tried by humorous grumps.

The 2000s breathed fresh air into the format with African American judges and new thematic approaches. Divorce Court and Judge Mathis featured attorney Mablean Ephriam and former state judge Greg Mathis, respectively. As a former teenage dropout and gang member who became a Michigan judge, Mathis promoted the theme of self-redemption while citing his life as an example for young offenders. Following their lead was noted former Georgia juvenile court judge Glenda Hatchett, whose Judge Hatchett also sought to balance entertainment with a social message.

cross-references

Small Claims Court; Television.

six trial court districts and two appellate districts, viewed the experience favorably; in fact, a report prepared by the Judicial Conference recommended extending camera coverage to all federal district and appellate courts. But in 1994, the conference voted to end the experiment without explanation. Many advocates of televising federal trials blamed this decision on the excessive publicity from the 1994 pretrial hearings in the case of o. j. simpson, a popular sports and entertainment personality who was accused and later acquitted of murdering his former wife Nicole Brown Simpson and her friend Ronald Lyle Goldman.

By the beginning of the twenty-first century, all 50 states allowed some level of camera presence in their courts (only the District of Columbia prohibited cameras in trial and appellate proceedings), but the rules governing when and where cameras are allowed varied enormously. In New York, for example, cameras have been banned from criminal trials since 1952 under Section 52 of the state's civil rights Law. A 2001 challenge to the law by Court TV argued that Section 52 was unconstitutional because it violates the first amendment. But in 2003, Manhattan Supreme Court Justice Shirley Werner Kornreich upheld the ban on cameras, noting that televising trials could disrupt the proceedings enough to have an impact on the fairness of those trials.

In 2001 the U.S. Senate and House of Representatives examined the issue of whether cameras should be allowed in federal court. An effort to enact legislation had failed in Congress a year earlier. In November 2001 the senate judiciary committee voted 12–7 to bring a proposed bill to the full Senate; action on that legislation, as well as similar legislation in the House, is pending.

The U.S. Supreme Court does not allow cameras in its proceedings; transcripts are made available, but not immediately. In a move that surprised many, the Court allowed the release of audiotapes of its proceedings in the Florida presidential election results late in 2000. The Court deemed those hearings to be important enough to warrant a special dispensation of its normal procedures. In 2003, the Court again allowed audiotapes to be released in the University of Michigan Law School's affirmative action case, as well as the hearings on the constitutionality of the McCain-Feingold campaign finance reform law. The Court has emphasized that such access will only be allowed in rare instances and only for cases it deems crucial enough. As for televised Supreme Court proceedings, Chief Justice william rehnquist wrote to Senator Arlen Spector of Pennsylvania, a proponent of television coverage, that "a majority [of the Justices] are of the view that it would be unwise to depart from our current practice." Rehnquist has stated that he would not allow camera coverage if even one justice was opposed.

"Raise Your Right Hand and Try to Look Natural": The Courtroom Camera Debate

Is allowing television cameras in courtrooms a good idea? U.S. law never tires of debating the question. Widely banned after the sensational 1934 Bruno Hauptmann kidnapping and murder trial, cameras in the courtroom have fluctuated for decades in their acceptability. The courts, the media, lawyers, and scholars have often heralded the camera as if it were democracy's own eye—or railed at it as a leering Peeping Tom. Supporters claim that cameras enlighten the public, while opponents counter that cameras corrupt the trial process and yield bad journalism. Only since the mid-1970s has the pro-camera lobby been ascendant. By 1995, with 47 states leaving the decision to permit cameras up to judges, and the cable television network court tv broadcasting nearly as fast as courts can be called to session, televised trials were routine affairs. But despite complaints, federal trials remained largely off-limits. Moreover, controversy over the media's treatment of the o. j. simpson murder trial brought new calls for pulling the plug altogether.

In 1934, Hauptmann was tried for kidnapping and murdering the young son of aviator Charles A. Lindbergh and author Anne Morrow Lindbergh. The trial excited the nation, obsessed the news media, and created a circus atmosphere of "expert" commentators, tabloid interviews, souvenir hawkers, and courtroom grandstanding. In 1995, the trial of Simpson, who was accused and ultimately acquitted of the murders of his former wife Nicole Brown Simpson and her friend Ronald Lyle Goldman, caused similar excitement, obsession, and atmospherics. Of course, the camera's role in each case was quite different. One 145 journalists crammed into the Hauptmann courtroom, and flashbulbs popped and a smuggled newsreel camera turned, all in violation of the trial judge's orders. Afterward, critics deplored the media's behavior. Sixty-one years later, a single television camera was permitted to follow the Simpson trial. Critics decried the media "circus," "frenzy," "orgy," and so forth. In both instances, it was said that cameras skewed the proceedings and gave a distorted view of the justice system. Some said the media got Hauptmann convicted; some believe the media got Simpson off.

On the simplest level, then, the debate is about the press. Critics believe journalists are only barely capable of behaving themselves in court. After the Hauptmann experience, the american bar association (ABA) reacted furiously. It swiftly passed judicial canon 35 of its Canons of Professional and Judicial Ethics:

Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.

This 1937 rule led the majority of states to ban still cameras and was amended in 1952 to include TV cameras. Although the ABA has long since changed its views, distrust of the media's intentions survives in the early 2000s in state rules governing courtroom proceedings. These guidelines strictly dictate how many cameras are allowed (usually, one), what they may do (remain stationary), whom they may film (never jurors and sometimes not witnesses), who may operate them (one person), what that operator may wear (appropriate dress), and when she or he may leave the courtroom (only during recess). It is hardly accidental that the guidelines resemble a teacher's orders to a class.

While generally accepting limits as necessary to the proper administration of justice, supporters of courtroom journalism chafe at the idea that cameras get in the way. In the Simpson trial, for example, when Judge Lance Ito threatened to have the camera removed, Floyd Abrams, a noted first amendment attorney, entered a plea to have it remain: the camera, Abrams said, was "absolutely, positively, 100 percent not guilty." Not surprisingly, this is also the view of Court TV. In its 1995 report called Facts and Opinions about Cameras in the Courtrooms, the network noted approvingly that states require shielding witnesses, children, and others from the camera. Exactly, respond opponents. "The first thing to note about such options is that their very existence affirms the adverse effects of cameras on witnesses," wrote Professor Rory K. Little, of the Hastings College of the Law.

This aspect of the debate—the effect on a witness of being filmed—is contentious. Few people are perfectly comfortable on television; even actors and reporters are prone to stage fright. But trials themselves can be tense events. One view is Court TV's, which attributes nervousness to publicity and speaking in front of a group: "There is no evidence that it is related to the camera, or that [witnesses] would be less nervous in the presence of the judge, jury, defendant and three dozen furiously-scribbling reporters." The network backs up its claim with state court research. But even if the majority of states are satisfied, not every observer is. In 1993, the Washington, D.C., Public Defender Service noted that a substantial percentage of witnesses feel uncomfortable on camera, and the district's U.S. attorney's office has expressed fears about cameras' chilling witness cooperation and even endangering witnesses. The media and tourists may hound witnesses who have appeared on television, and so may others with frightening motives. After Pablo Fenjves testified in the Simpson case about noises made by Nicole Brown Simpson's dog, he told Time magazine that he received death threats.

Lawyers and judges can also be affected by the camera. Critics say the temptation to grandstand is overwhelming—lawyers will show off, aware that their reputation can be bolstered by flights of impressive speech. Supporters respond that lawyers had big egos long before cameras were there to record them. Yet, can judges keep order, let alone resist the temptation themselves? This old question in the debate drew comment by the U.S. Supreme Court in Estes v. Texas (381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 [1965]). In his concurring opinion in that case, Chief Justice earl warren looked scathingly on a Texas trial judge who said that he had sworn to uphold the state constitution—not the federal Constitution. (Of course, state judges must uphold both.) "One is entitled to wonder," Warren wrote, "if such a statement would be made in a court of justice by any state trial judge except as an appeal calculated to gain the favor of his viewing audience." And, in 1995, much commentary in the Simpson case asked whether Judge Ito had succumbed to the allure of the camera when he allowed prosecutors and defense attorneys to bicker endlessly. No, said supporters, cameras can actually be a corrective for these problems. As attorney Abrams put it, "A single, silent courtroom camera serves as an antidote to such behavior by truthfully showing the public how attorneys and judges actually behave."

The effect on juries concerns critics in a special way. Since juries are not televised, there would seem to be little reason to worry about what they will do in the jury box. Not so. It is what they may do afterward—especially in high-profile cases—and how that may affect their performance in the box that bothers critics. "[W]orst of all," wrote attorney, author, and camera-opponent Wendy Kaminer, "juries will play to the prospect of appearing on talk shows when the trial is over … we can't expect jurors not to be corrupted by publicity." Book deals present another problem. There is the real possibility that people will try to get on juries simply to turn a buck; in fact, one person was dismissed from the Simpson jury for allegedly taking notes for this very reason. Thus, opponents argue, cameras can jeopardize the quality of justice: not only can they result in bad juries, but the dismissal of jurors can threaten to sink an entire trial. Against this argument, supporters can say little except words of regret about human nature. "Maybe we should, at long last, learn a lesson from Snow White's stepmother," Abrams advised. "Our mirrors are not our problem."

Given its length, notoriety, and multiple problems, the Simpson case produced a backlash against televising trials. Afterward, some judges barred cameras, and others put new restrictions on them. Vowing that "nothing like the O.J. Simpson case is going to happen in my courtroom," Judge Lawrence Antolini of the California Superior Court limited filming to five minutes a day. Critics mocked supporters' claims that cameras help educate the public. As attorney Kaminer quipped in the ABA Journal, "People who claim they watch the Simpson case to educate themselves remind me of people who say they buy Playboy for the articles." Court TV took much of the blame for its choice of what to broadcast—not only the Simpson case, but the previous trials of Lorena Bobbitt for the castration of her husband and of brothers Erik Menendez and Lyle Menendez for the murder of their parents. One of the network's sharpest scourges, attorney alan m. dershowitz, proposed an alternative: a nonprofit channel to be modeled on the cable network c-span that would broadcast trials of a more illuminating nature. News programs were criticized, too, for carrying too little footage during a brief experiment in broadcasting federal trials; the federal judicial center determined that the average length of coverage in a newscast was only 17 seconds.

In the wake of the backlash, supporters backpedaled as quickly as possible. "The obsession with this particular television trial [Simpson's] should not lead to a rejection of televised trials," the New York Times declared in an editorial (June 11, 1995). USA Today editorialized, "As aberrant as the Simpson case is, it has become a civics lesson in the rights against search and seizure, the role of judges and the duties of jurors" (May 5, 1995). Trotting out statistics that showed that its viewers come away with greater understanding and respect for the courts, Court TV argued that "in-court camera coverage is, by definition, as dignified as the process and arguably more 'tasteful' than out-of-court tabloid coverage." And when confronted with the charge that cameras had dragged out the length of the Simpson trial, supporters pointed to earlier trials that had lasted much longer without cameras.

One venue in which there seems virtually no chance of televised court proceedings any time soon is the U.S. Supreme Court. Supreme Court justices have assiduously shunned publicity surrounding the cases they hear. Over the years, justices have felt that such publicity could detract from the serious nature of the Court's business. The common practice is for transcripts of proceedings to be issued after a case has been decided. On rare occasions, the Supreme Court has allowed audiotapes of proceedings to be released to the public. The hearings surrounding the 2000 presidential contest between george w. bush and al gore were deemed sufficiently important by the Court to warrant this, as were the 2003 hearings for the University of Michigan Law School affirmative action case and the constitutionality of the McCain-Feingold campaign finance reform law. Chief Justice william rehnquist stated that he would not allow cameras in the Supreme Court if even one justice objects. Judging from the comments of Justice david souter, who has testified before Congress twice in opposition of cameras in the court—and who has said that

cameras will come in over my dead body—

chances are the Supreme Court will be camera-free for quite some time.

The future of cameras in courtrooms is anyone's guess. Eager to expand its business, Court TV invites its viewers to help it lobby states for greater access. The network and other supporters especially want the Federal Judicial Conference to reopen federal trials to cameras. Critics shudder at the thought, and after Simpson, many proponents concede that this is unlikely. Also unlikely is that camera opponents will get their way in state courtrooms, unless the effect of Simpson is so great that it can undo fifty years of legal reforms. As for federal trials, as of the early 2000s cameras are permitted in only two federal courts, the Second U.S. Circuit Court of Appeals in New York and the Ninth Circuit Court of Appeals in San Francisco. Legislation is pending in both houses of Congress that would give all federal judges the option of allowing television cameras to broadcast trials. Despite continued strong opposition, the camera fought a long battle to become a fixture in court, and it will be quite difficult to send the camera away.