XI. Cameras and other technology in the courtroom

Overview

Constitutional concerns neither mandate, nor prohibit, televising of trials. The Supreme Court ruled in 1978 that “there is no constitutional right to have [live witness] testimony recorded and broadcast …. Nor does the Sixth Amendment require that the trial – or any part of it – be broadcast live or on tape to the public.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 610 (1978). But in Chandler v. Florida, 449 U.S. 560, 583 (1981), the Court confirmed that “the Constitution does not prohibit a state from experimenting with” cameras in the courtroom, and all states have done so to one extent or another. Jurisdictions vary widely, and the issue is governed by state law rather than a constitutional access right.

Judges often rely on Standard 8-3.8 of the American Bar Association’s Criminal Justice Section Standards. It provides that “under rules prescribed by a supervising appellate court or other appropriate authority, a judge may authorize broadcasting, televising, recording and photographing of judicial proceedings … consistent with the right to a fair trial and subject to express conditions, limitations, and guidelines which allow such coverage in a manner that will be unobtrusive, will not distract or otherwise adversely affect witnesses or other trial participants, and will not otherwise interfere with the administration of justice.”

In federal criminal trials, Fed. R. Crim. P. 53 provides that generally “the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Some federal districts allow broadcasting in civil cases. See S.D.N.Y. R. 1.8; E.D.N.Y. R. 1.8. But others follow the admonition of the Judicial Conference that “it would not be appropriate to require … non-ceremonial proceedings to be subject to media broadcasting.” In re Sony BMG Music Entertainment, 564 F.3d 1, 7 (1st Cir. 2009) (quoting Guide to Judiciary Policies and Procedures, Vol. 1, Ch. 3, Pt. E.4.; in overturning decision of district court to allow webcast of hearing). The Judicial Conference allows federal appellate courts to permit cameras in appellate arguments if they chose to do so. The Second and Ninth Circuits have voted to allow recording of some oral arguments.

Trial courts increasingly also allow liveblogging or Twittering of proceedings. See Ahnalese Rushmann, Courtroom coverage in 140 characters, 33 News Med. & L. 2 at 28. These rules vary between (and often within) jurisdictions.

6th Cir.

The Sixth Circuit adheres to Federal Rule of Criminal Procedure 53, prohibiting photographing or broadcasting judicial proceedings. See Conway v. United States, 852 F.2d 187 (6th Cir.), cert. denied, 109 S.Ct. 370 (1988).