Should cameras be banned from California's courts?
by Daniel M. Kolkey, legal affairs secretary and counsel to Gov. Pete Wilson.
It is time to make it clear that we are not part of a soap opera, playing roles in an entertaining script
by Bryan Goebel, managing editor of radio station KFBK in Sacramento and on the board of directors of the California First Amendment Coalition. He is president of the Central California chapter of the Society of Professional Journalists.
Nothing is more accurate than the unfiltered eye of the camera and the uncensored ear of the mike
Twelve years ago, the California Judicial Council reversed decades of practice and amended Rule 980 of the California Rules of Court to authorize on a case-by-case basis televising court proceedings.
On Oct. 3, 1995, after the verdict in the O.J. Simpson trial was rendered (and after the nation had been subjected to endless evenings of "Dancing Itos," countless commentaries on Marcia Clark's latest hairdo and nightly footage of the latest attorney sniping in the Simpson case), Gov. Wilson asked the Judicial Council to reexamine Rule 980 and consider reinstituting the ban on film and electronic media coverage of criminal trials, as is the case in the federal courts.
The governor is right to call for the withdrawal of the privilege (it is not a right) of broadcasting our criminal trials for at least four reasons:
Chilling the witness
Let's turn to point one. Televising trials can distort the truth-seeking process of a criminal trial and chill witnesses' willingness to cooperate. Witnesses can watch the testimony of other witnesses, permitting them to shape their testimony. And contamination of the jury pool is a concern if a new trial is required. For example, in denying an application to broadcast the second Menendez trial, Judge Stanley Weisberg observed that "[t]he visual images from television coverage of the first trial remained in the minds of many potential jurors long after memories of details faded."
Televising a trial can affect the behavior of witnesses, lawyers, jurors, and even judges. As George Gerbner, dean emeritus of the Annenberg School of Communication has observed, "When you change the audience, you change the proceeding."
Anyone who doubts that televising trials alters behavior need only be reminded that televised legislative proceedings have led to legislators pontificating before an audience of empty seats. Cameras are not merely an observer of, but an influence on, behavior, transforming trial participants into instant celebrities and serving as tremendous lawyer advertising.
Point two: Televising trials interferes with the privacy of victims, witnesses and defendants. Victims and witnesses do not normally participate in a criminal trial by choice, but out of civic responsibility.
Yet, a Los Angeles Superior Court committee commenting on the effects of television on witnesses noted, "People who lived in relative obscurity, as we all have the right to do, have received death threats by the bushel basket . . . It is inescapable that the frenzy has been fueled . . . by the availability of images from the trial."
The privacy rights of the defendant - who is, after all, presumed innocent until proven guilty - also are threatened. The Supreme Court in Estes v. Texas observed, "A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or a nationwide arena."
Point three: The decision whether to televise trials does not lend itself to a case-by-case determination. In U.S. v. Hastings, the 11th Circuit upheld the federal rule prohibiting the broadcasting of federal criminal trials, even though the defendant requested that his trial be televised.
It noted that "[p]romulgation of the current rules in a legislative-type manner is more appropriate than a case-by-case approach in light of the difficulty of detecting the adverse impact of media coverage . . ." In other words, a case-by-case approach works best when the court can weigh evidence which will vary with the circumstances.
In contrast, specific evidence will rarely exist in advance indicating that broadcasting the trial will alter a witness's testimony or contaminate a future jury pool. Thus, an overall rule is more appropriate.
Point four: Televising trials can transform them into a form of entertainment which can undermine the dignity of, and respect for, our judicial institutions. When a trial becomes a soap opera, or is commercialized, the dignity upon which the process relies is slowly stripped away.
For instance, the black robes worn by a judge do not improve his or her analytical skills, but they do add to the prestige and solemnity of the proceedings. Transform a trial into entertainment and you disrobe the judge.
By day, by night
Can anyone dispute that televising the O.J. Simpson trial during the day led to the parodies of Judge Ito during the night? How many "Dancing Itos" will it take to recognize that cameras can become a cancer that gradually gnaws away at our courts' dignity? Sadly, if we inadvertently undermine our judicial institutions by making them another programming alternative, it will be difficult to rebuild them.
In sum, the effects of televising criminal trials may often be subtle, but they are nonetheless extensive. And it is not just the privacy of victims and the fairness of the trial which is at stake, but the integrity of our judicial institutions.
To quote from the Los Angeles Superior Court's study again, "[I]t is time for the judiciary to make it clear that we are not merely a part of the entertainment industry, existing to provide a convenient soap opera set and script."
Although the O.J. Simpson trial in Los Angeles brought the issue into the public spotlight, the California First Amendment Coalition was working even before then to seek changes in Rule 980.
It had become painfully obvious that broadcast reporters and still photographers were being subjected to arbitrary discrimination in the state's courtrooms.
Many judges currently interpret the rule as giving them unbridled discretion as to whether or not they'll allow camera coverage. Requests can be denied for any reason, and, in fact, no reason has to be given. Some judges aren't even familiar with Rule 980 and have limited knowledge of other public access laws.
Electronic coverage is routinely denied, for example, in courtrooms where judges have had little or no experience working with the media.
In the 1990 preliminary hearing of mass murderer Ramon Salcido, the judge called the use of cameras in the courtroom "unique" and refused to "experiment" with them.
It was more than 70 years ago when the issue arose, beginning with cases such as the 1925 "Scopes Monkey Trial" in Tennessee. Chicago's WGN radio broadcast the trial, setting up loudspeakers around town for what the announcer described as an attempt to accommodate the throngs who wanted to know what was happening, but might endanger the old, historic courthouse.
While the U.S. Supreme Court has so far failed to give broadcast journalists and still photographers a constitutional blessing to cover a trial with all the tools of their trade, it should only be a matter of time before the courts catch up with technology.
The Commission on the Future of California's Courts said in a recent report that "press and public access to court proceedings should be virtually unrestricted." It envisioned that by the year 2020, technology would make "justice more efficient, more accessible, more understanding and high quality."
The press does have a constitutional right to be in the courtroom and tell the public what it sees. Yet there is nothing more accurate than the unfiltered eye of the camera and the uncensored ear of the microphone.
The circus atmosphere which developed outside the Simpson courtroom was not created by or for the cameras, but was inevitable due to the extraordinary circumstances of the defendant's celebrity status. Both history and ratings have demonstrated that the public is fascinated with such high-profile cases.
Banning cameras from California courtrooms in criminal proceedings would be tantamount to turning back the clock and allowing "hearsay democracy" to prevail. It would run contrary to the judiciary's goal of California courts being accessible to everyone.
Instead of building and promoting public confidence in the judicial system, such a ban would only serve to build more suspicion.
Should there be any surprise at the post-Simpson anti-camera sentiments? Of course not. The same misguided perceptions have arisen after many of the nation's notorious trials.
Also present in this case was the opportunity for politicians to grab some of the spotlight. Case in point: Within hours after the verdict in the Simpson case, Gov. Wilson was telling reporters at the state Capitol that he wanted a ban on cameras in the courtroom.
But what Wilson and some other politicians and lawyers are doing is using the camera as a scapegoat, blaming it for all the real and perceived wrongs associated with the trial. The culprit is not the camera, but the often-sensationalized coverage in high-profile trials.
Justice William Brennan summed it up well: "Commentary and reporting on the criminal justice system is at the core of First Amendment values, for the operation and integrity of that system is of crucial import to citizens concerned with the administration of justice." Since opponents of cameras can't gag the press, they seek to blindfold the public.
The argument that cameras have a negative effect on witness testimony, or that they make witnesses reluctant to testify in the first place, is clearly wrong.
There is no evidence to support claims that cameras have any greater psychological effect than a packed courtroom of strangers. Likewise, there's no evidence to indicate that the cameras undermine truthful testimony.
Several decades ago, there was some substance to the claim that cameras were intrusive in courtroom proceedings. There was a time when electronic equipment could disrupt the dignity and decorum of the courtroom, as noted in the Supreme Court's landmark 1965 ruling in the case of Texas businessman Billie Sol Estes.
But the argument no longer has merit, since technology now allows cameras to operate quietly and unobtrusively.
There are always exceptions to be noted. For example, a molestation victim or a witness in a drug case where anonymity is essential: in such cases, electronic coverage is justifiably curtailed.
But if the O.J. Simpson trial taught us anything about cameras in the courtroom, the lesson was that their use benefits both the public and the criminal justice system.
Justice Brennan himself encouraged coverage of trials because it improves the quality of the system by "subjecting it to the cleansing effects of exposure and public accountability."
For that reason, Rule 980 should not be scaled back, but should be broadened. It's time that California made the presumption that cameras and microphones have a vital place in the courtroom.
The burden should not fall on the broadcaster to prove their value, but on the objector to document their harm. Let's not wait for another "O.J." to bring the issue into focus.