RTDNA’s decades-long effort to open federal courtrooms to electronic coverage received some welcome news this week when the Judicial Conference of the United States approved a pilot project to evaluate the effect of cameras in federal district courtrooms and the public release of video of some civil proceedings.
The three-year program, which will be conducted nationwide, could produce some of the data necessary to support RTDNA’s longstanding arguments that opening federal courtrooms to cameras will not disrupt proceedings or otherwise compromise a defendant’s right to a fair trial, and would have tremendous public benefit.
Participation in the pilot will be at the trial judge’s discretion, parties in a trial must consent and recording members of the jury will not be permitted. The Federal Judicial Center will issue evaluations at the end of the first and second years of the program. The pilot program will not extend to the U.S. Supreme Court.
Federal courts are currently closed to cameras, with the exception of the Second and Ninth Circuits, which have adopted judicial orders allowing televised coverage of appellate proceedings only. While a few federal district court judges have determined that they have discretion to allow camera coverage of civil proceedings, such access remains the exception rather than the rule. Federal Rule of Criminal Procedure 53 prohibits photographs or radio broadcasts of Federal criminal cases.
In 1972, the Judicial Conference, the rulemaking body of the federal Judicial branch of the U.S. government, banned photographs and television cameras from all federal courts.
In 1990, the Judicial Conference began a three-year pilot program allowing electronic media in civil courtrooms in six district courts and two appeals courts. Despite the resulting study by the Federal Judicial Center which gave the program a favorable evaluation, the Judicial Conference voted by a slim margin in 1996 to permit each of the federal courts of appeals to “decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments.” Only the Second and Ninth and Second Circuits acted to permit such coverage.
In March 1996, Judge Robert J. Ward of the Southern District of New York allowed camera coverage of a civil proceeding in his court, reasoning that the rules of the Second Circuit and the Southern District did not prevent such coverage, and that the Judicial Conference did not possess enforceable power over district courts. In response, the Judicial Conference “strongly urge[d] each [circuit] judicial council to adopt an order reflecting the Conference’s decision not to permit the taking of photographs and radio and television coverage of proceedings in U.S. district courts,” and to abrogate of all permissive local rules for the federal trial courts. The Judicial Council of the Second Circuit declined to do so and at least four judges in the Eastern and Southern Districts of New York have admitted cameras to their courtrooms. The Fourth Circuit acted similarly, but most other circuits amended their rules in accordance with the Judicial Conference’s wishes. Thus, camera coverage of federal district court proceedings remains the exception, rather than the rule.
State courts have their own history of televised coverage. During the 1970s, many state courts started to permit camera coverage, generally with favorable results. Following the Supreme Court’s 1981 decision in Chandler v. Florida, holding that electronic media coverage of state court cases does not inherently violate the due process rights of witnesses or defendants, more and more states began to open their courtrooms to cameras. In fact, the vast of states now permit some form of electronic coverage.
Enter the O.J. trial. The television camera was blamed for most of the lurid sensationalism of the O.J. Simpson criminal proceedings. The impact on court coverage has been palpable—since the O.J. criminal trial, cameras have been barred not only from the O.J. civil trial, but also from any number of high profile state trials, and the momentum in favor of cameras in federal courts following the successful three-year experiment was stopped dead in its tracks.
Legislation that would allow television coverage of federal court proceedings, both trial and appellate, including those in the Supreme Court, has been introduced in Congress for more than a decade. In discussing why the conference decided “overwhelmingly” to reprise its 1990s experiment, Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit cited this "congressional interest." Sentelle also noted advancement in technology, and judges’ desire for new data on the impact of cameras on court proceedings.