Media coverage of court proceedings has been a controversial subject for years because it presents potential conflicts between the public’s right to be fully informed of public proceedings and the parties’ right to a fair trial. With the advent of media outlets like Court TV, the controversy over cameras and other recording devices in courtrooms has taken on an even higher profile. Televised coverage of the O.J. Simpson murder trial served to heighten scrutiny, as some observers believed the coverage contributed to what they saw as a circus-like atmosphere in the courtroom. However, others saw the coverage as important to the education of the public in legal matters. Issues related to electronic coverage have exploded now that wireless devices allow the tech-savvy public to watch live proceedings while riding a train to work or sitting in a doctor’s waiting room.
Recognizing important issues affecting coverage of legal matters, California Supreme Court Chief Justice Ronald Georges created the Bench-Bar-Media Committee in 2008 under the auspices of the California Judicial Council. The Committee is comprised of jurists, executive officers of county courts, journalists, broadcasters, and attorneys. In August 2010, the Committee release a draft report entitled A Balancing Act – Accommodating the Needs of the Bench, Bar, and Media in the Pursuit of Justice which can be found at http://www.courtinfo.ca.gov/invitationstocomment/documents/bbmc-draftreport.pdf. The report addresses three broad subjects: 1) Access to Court Proceedings; 2) Enhanced Education and Training; and 3) Conflict Resolution Among the Bench, Bar, and Media. The focus of this article is on access and, particularly, on video and audio recording of court proceedings.
The report’s discussion of access to court proceedings is further broken down into three subjects: 1) Use of Cameras and Other Recording Devices in the Courtroom; 2) Gag Orders; and 3) Orders Sealing Records. Obviously, the manner in which each issue is addressed may greatly enhance or restrict public access to information about court proceedings. Within these subjects, we will focus primarily on the use of recording devices in the courtroom.
The procedure for requesting media coverage by camera or recording device is laid out in Rules of Court 1.150. ( http://courtinfo.ca.gov/rules/index.cfm?title=one&linkid=rule1_150) After making a salutary statement about the importance of media coverage, Rule 1.150 gives the individual judge almost unlimited discretion in deciding whether to allow recording, as indicated in these relevant portions:
Media coverage may be permitted only on written order of the judge as provided in this subdivision. The judge in his or her discretion may permit, refuse, limit, or terminate media coverage. This rule does not otherwise limit or restrict the right of the media to cover and report court proceedings.
(1)Request for order
The media may request an order on Media Request to Photograph, Record, or Broadcast (form MC-500). The form must be filed at least five court days before the portion of the proceeding to be covered unless good cause is shown. A completed, proposed order on Order on Media Request to Permit Coverage (form MC-510) must be filed with the request. The judge assigned to the proceeding must rule on the request. If no judge has been assigned, the request will be submitted to the judge supervising the calendar department, and thereafter be ruled on by the judge assigned to the proceeding. The clerk must promptly notify the parties that a request has been filed.
(2)Hearing on request
The judge may hold a hearing on the request or may rule on the request without a hearing.
(3)Factors to be considered by the judge
In ruling on the request, the judge is to consider the following factors:
(A)The importance of maintaining public trust and confidence in the judicial system;
(B)The importance of promoting public access to the judicial system;
(C)The parties’ support of or opposition to the request;
(D)The nature of the case;
(E)The privacy rights of all participants in the proceeding, including witnesses, jurors, and victims;
(F)The effect on any minor who is a party, prospective witness, victim, or other participant in the proceeding;
(G)The effect on the parties’ ability to select a fair and unbiased jury;
(H)The effect on any ongoing law enforcement activity in the case;
(I)The effect on any unresolved identification issues;
(J)The effect on any subsequent proceedings in the case;
(K)The effect of coverage on the willingness of witnesses to cooperate, including the risk that coverage will engender threats to the health or safety of any witness;
(L)The effect on excluded witnesses who would have access to the televised testimony of prior witnesses;
(M)The scope of the coverage and whether partial coverage might unfairly influence or distract the jury;
(N)The difficulty of jury selection if a mistrial is declared;
(O)The security and dignity of the court;
(P)Undue administrative or financial burden to the court or participants;
(Q)The interference with neighboring courtrooms;
(R)The maintenance of the orderly conduct of the proceeding; and
(S)Any other factor the judge deems relevant.
(4)Order permitting media coverage
The judge ruling on the request to permit media coverage is not required to make findings or a statement of decision. The order may incorporate any local rule or order of the presiding or supervising judge regulating media activity outside of the courtroom. The judge may condition the order permitting media coverage on the media agency’s agreement to pay any increased court-incurred costs resulting from the permitted media coverage (for example, for additional court security or utility service). Each media agency is responsible for ensuring that all its media personnel who cover the court proceeding know and follow the provisions of the court order and this rule.
In its report, the Committee recommends that Rule 1.150 be amended to create a presumption that recording devices should be permitted in the courtroom unless the judge makes specific findings to support either prohibiting them or limiting their use. The Committee also recommends that the current form used to request media recording be modified to require the judge to list findings supporting a ban or limitation. The Committee also recommends that court security personnel be provided with any applicable order related to the use of cameras or other recording devices.
We have a tradition of making the public’s business open to the public. In California, the Brown Act ensures that the public is notified of matters to be considered by public agencies at their hearings and has the right to attend and be heard. The ability of the public to “attend” such hearings electronically has greatly increased as recording and broadcast equipment becomes less expensive and more accessible. In 2010, almost all public agencies in California make live broadcasts of public meetings available through television or the internet.
With limited exceptions, courtroom proceedings are open to the public and pertain to the public interest. Members of the public can attend courtroom proceedings as spectators and have even camped out and gone through “lottery” systems to obtain seats at certain high-profile trials. Public interest in certain court proceedings warrants media coverage through video coverage. Whether the proceedings are criminal or civil, the public has the right to full media coverage, with the court retaining the ability to restrict coverage where specific facts warrant the restriction.
The Committee’s report indicates that some opposition to the proposed changes to rules affecting in-court recording has come from judges and criminal defense attorneys. Although their concern for preservation of the right to a fair trial is admirable, courts will retain the ability to prohibit or modify coverage where necessary to ensure a fair trial. Where media coverage is warranted, courts should not have almost unlimited ability to prevent it. Courts cannot generally bar the courtroom doors to interested observers who appear in person. They should not be able to accomplish the same by depriving electronic coverage to those who cannot go to the courthouse to remain informed.
Michael M. McMahon firstname.lastname@example.org