Cameras in the Courtroom: Access to Justice or Media Circus?

Our loyal Law Law Land readers already know about the intrigue that surrounds so-called court “reality” shows like Judge Judy and The People’s Court. (For those who missed it, I broke the shocking news that — brace yourselves, people — those “courts” aren’t really courts at all.) So where can avid followers turn for a glimpse of real-life justice? In many cases, the public’s view of the inside of a court trial is limited to the lifelike renderings of the courtroom’s sketch artist. But occasionally, a judge decides to allow a video camera into the courtroom and we can watch the proceedings for ourselves.

Last month, Los Angeles Superior Court Judge Michael Pastor ruled that a television camera will be allowed in the courtroom for the involuntary manslaughter trial of Michael Jackson’s former doctor, Conrad Murray, for which jury selection began last week. Judge Pastor asked for the “absolute least-intrusive placement” of the camera and prohibited cameras from being present at jury selection.

Judge Pastor was able to make that ruling because in state courts in California, pursuant to California Rule of Court 1.150, “Photographing, recording, and broadcasting of courtroom proceedings may be permitted as circumscribed in this rule if executed in a manner that ensures that the fairness and dignity of the proceedings are not adversely affected.” Specifically, a judge “in his or her discretion may permit, refuse, limit, or terminate media coverage.”

In making his decision, the judge must take into account a whole litany of factors, including: the importance of maintaining public trust and confidence in the judicial system; the importance of promoting public access to the judicial system; the parties’ support of or opposition to the request; privacy rights of participants; the maintenance of the orderly conduct of the proceeding; and any other factor the judge deems relevant. In sum, a state court judge has a ton of discretion, especially because he can consider “any factor [he] deems relevant.” (I, for one, would propose a few additional factors for consideration, like “how to best avoid an O.J. Simpson trial-style media circus” or, a closely related inquiry, “how to not be Judge Lance Ito.”)

On the other hand, there are some things that can’t be filmed, no matter what. Among other things, Rule 1.150 prohibits filming or photographing proceedings held in chambers, proceedings closed to the public, jury selection (which explains Judge Pastor’s ruling on that), and jurors or spectators. (Side note: this blogger learned this rule when she served on jury duty in the Metropolitan Courthouse, south of downtown Los Angeles, last month. According to the juror orientation, Brad Pitt was called for jury duty last year and lots of women wanted to take photos of him but weren’t allowed. I tell ya, only in L.A…) To my knowledge, Rule 1.150 could not have prevented the Simpson trial’s Judge Ito from reportedly bringing the trial lawyers into his chambers for a private screening of the Jay Leno “Dancing Itos” gag; only common sense could have done that, so I guess it’s no surprise how that played out.

In federal trial courts, on the other hand, cameras had long been banned altogether, with the exception of a couple of courts in New York. In September of last year, the Judicial Conference of the United States implemented a three-year pilot program under which judges in civil cases, where all parties consent to be recorded, may record and then disseminate proceedings in their courtrooms. This program was launched on the heels of the United States Supreme Court’s 5-4 decision rejecting an attempt by U.S. District Judge Vaughn Walker — who presided over the Perry v. Schwarzenegger trial relating to the constitutionality of California’s controversial Proposition 8 (anti-same-sex-marriage) — to record the proceedings in order to later post them on the Internet for public discussion. Only time will tell whether federal judges will take advantage of this program and allow cameras in their courtrooms or not — because all parties must consent, and most lawyers on opposite sides of a case find a way to disagree about just about everything, it may not make much difference.

But as you might imagine, there has been much debate over whether allowing cameras in the courtroom is a good idea in the first place. In favor of cameras, we have tabloid journalists, people who can’t help but slow down and stare at car crashes as they pass, and those who argue that the Constitution, which requires an open and public trial, mandates that it not just be, as one commentator put it, “only public if you have the time to go to the court and sit there.” This camp also includes Justice Alex Kozinski of the Ninth Circuit (principally famous for a number of extremely prominent judicial decisions, none of which are as entertaining as this amazing clip of Kozinski on The Dating Game), who even wrote to the Judicial Conferencearguing that media broadcasts cause no practical problems.

In the anti-camera camp are technophobes, people who expect cameras to do more harm than good to their cause(s) of choice, and those worry that cameras (1) help promote the transformation of trials into media circuses (see that bit about O.J. above), and (2) may alter the way that parties, attorneys and even the judge behave. The Supreme Court, in banning broadcast of the Proposition 8 trial, concluded that the demonstrated threat of harm from the broadcast outweighed the demonstrated threat of harm from banning it, in light of the representation that certain witnesses would refuse to testify at all if cameras were allowed.

So at the end of the day, whether in state or federal court, decisions about whether a trial will be videotaped and broadcast will be made on a case-by-case basis, governed ultimately by the judge’s discretion, judgment, and/or undisclosed desires for notoriety, book deals, and lameTonight Show sketches. In the meantime, we will all tune in to watch Conrad Murray stand trial…and otherwise, we will rely on our old friend the sketch artist, and our not-so-old friends, our Twitter feeds and Facebook updates. Nothing like justice in the modern age.

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