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Cameras in Court

"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.

FURTHER READINGS

Court TV: Frequently Asked Questions, 2003. Available online at <www.courttv.com/about/ctvfaq.html> (accessed October 21, 2003).

"Senate Passes Cameras-in-Court Bill." 2001. Associated Press. (November 30).

West, Woody. 2003. "Will TV Cameras turn Trials into Survivor?" Insight on the News 19 (April 1).

Wolf, Dick, and Bill Guttentag. 2003. "Cameras in camera." The Wall Street Journal (July 9).

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Bryan Treaties (Bryan Arbitration Treaties) to James Earl Carter Jr. - Further ReadingsCameras in Court - Judge Wapner And The People's Court, "raise Your Right Hand And Try To Look Natural": The Courtroom Camera Debate