Cameras placed in federal courtrooms as part of a three-year pilot project will be controlled by judges and not instantly available to the media, according to guidelines announced Wednesday.
The pilot project, which begins July 18, will place cameras in courtrooms in 14 separate federal trial courts. According to the guidelines established by the Judicial Conference of the United States, only civil proceedings will be recorded, and both parties and the presiding judge have to consent to the recording.
“I have mixed emotions,” said Kathleen Kirby, a partner at Wiley Rein who represents the Radio Television Digital News Association. “On one hand, we haven’t had coverage of federal courts at all, so any baby steps in the right direction I welcome. On the other hand, given how restrictive these rules appear to be, I wonder if they’re going to get a meaningful sample so they really can evaluate the effects of camera coverage on federal court proceedings.”
The courts themselves, and not media organizations, will own and control the cameras, the guidelines say. The proceedings will be available on the courts’ websites several hours after the fact.
In September, the Judicial Conference decided to conduct the pilot project, which will last up to three years. The Federal Judicial Center will study the project, and report on it at the end of the first and second years.
The Judicial Conference is the policy-making body concerned with the administration of the federal courts, whereas the Federal Judicial Center is the research and education agency of the federal judicial system.
Kirby said the fact that all parties must consent to the recording is one of the most restrictive rules. “That will eliminate a lot of proceedings from the get-go,” she said. “There is no presumption of openness. There is no appeal process. It truly is an experiment, completely within the judge’s control with total power by the judge and the parties. That makes me wonder how many parties are going to consent.”
The federal judiciary conducted a similar study in the 1990s, and it was well received, Kirby said. “And then the O.J. [Simpson] trial happened, and everything fell off the rails,” she said.
The Simpson trial is something that everyone brings up to discuss the dangers of cameras in the courtroom, said media attorney Thomas Burke, a partner at Davis Wright Tremaine in San Francisco. “But I think that’s misleading,” he said. “It’s not the way to look at Simpson. Now, you have hundreds of thousands, or even millions of people who know what a criminal preliminary hearing is, who had no other connection with the criminal system.”
Other rules for the pilot project include:
The presiding judge will select cases for participation in the pilot, although parties to a case or the media may request video recording of the proceedings.
Parties must provide consent to the recording of each proceeding in a case. Consent to the recording of one proceeding will not be construed as consent to any other proceeding in a case.
Three to four cameras per courtroom are ideal. They should be inconspicuous and fixed on the judge, the witness, the lawyers’ podium and the counsel tables.
A presiding judge may refuse, limit or terminate recordings for reasons including: in the interests of justice; to protect the dignity of the court and the rights of the parties and witnesses; and “for any reason considered necessary or appropriate by the presiding judge.”
Recordings of the jury and jury selection proceedings are prohibited.
The guidelines aren’t intended to create a right of appeal from a decision to grant or deny recording access.
That the recordings will be controlled by court employees and not the media troubles Kirby, who said it interferes with editorial discretion. “The person manipulating the cameras is definitely exercising a degree of editorial control,” she said.
But Burke and Mark Kraham, chairman of the Radio Television Digital News Association, said it isn’t a large departure from current practice in state courts where cameras are allowed.
“I don’t really see that being a great impediment to the process,” said Kraham, who is news director of television station WHAG in Hagerstown, Md. “In many state courts, it’s already discretionary for the judges. As far as pointing the camera, as reporters, we are already dealing with certain criteria where the judges may specify that we not show jurors or certain witnesses.”
Burke said most courts that have extensive experience with cameras have come to see the benefits.
Courts develop a “comfort level,” he said. “It is very true that the more cameras are present, the more no one even notices. There are long-standing concerns from decades ago that lawyers or witnesses will play to the cameras, and that is a falsity. If cameras are always there, people forget about them. That has certainly been the state court experience. I wouldn’t expect the federal court experience to be any different.”