A pilot program that put cameras in 14 federal trial courts for four years has ended with a decision to maintain the ban on video recordings of proceedings, despite reports that participating judges and attorneys were in favor of it.
The federal judiciary lifted its long-time ban on cameras in 14 of 94 U.S. district courts, allowing the recording and online publication of civil proceedings as part of a camera pilot program from July 2011 to July 2015.
After completion of the program, nearly three-fourths of participating judges and participating attorneys responded that they were in favor of video recording proceedings, according to a Federal Judicial Center Report analyzing the program. Additionally, nearly two-thirds of judges polled, including those who participated and those who did not, said they would allow video recordings if the judiciary permitted them.
However, the Judicial Conference of the United States, the policy-setting body of the federal judiciary chaired by U.S. Supreme Court Chief Justice John Roberts, decided in March to maintain its ban on cameras in federal trials courts after the Committee on Court Administration and Case Management did not recommend any changes to the Conference’s policy.
“Ultimately … the cameras pilot program did not produce sufficient or persuasive evidence of a benefit to the judiciary to justify the negative effect upon witnesses and/or the significant equipment and personnel costs associated with video recordings of district court civil proceedings,” the Committee concluded.
Although cameras will remain banned in federal trial courts, three participating courts from the pilot programs — the district courts for the Northern District of California, Guam and the Western District of Washington — will continue allowing cameras under the same terms of the pilot program “to provide longer term data and information to the Committee on Court Administration and Case Management,” the Judicial Conference explained.
The Judicial Conference’s decision means the news media will have to limit their reporting on federal trial courts to observations inside the courtroom, constricting the ways in which the press can portray the judicial system to the public, according to Sonja West, a media law professor at the University of Georgia School of Law.
“There’s a certain amount of information that cameras provide that journalists can’t convey to the public such as body language, tone of voice and facial expressions. Having audio and video would pass on those matters to the viewers themselves,” West explained.
Gabe Roth, executive director of Fix the Court, an advocacy group supporting greater judicial transparency, called the conclusion of the camera program without a change in policy “a real missed opportunity for the public and federal judiciary to finally start supporting modern expectations of transparency.”
Roth said the 245-page FJC Report conflicts with the findings of the Committee and the Judicial Conference decision.
In recommending no change in the camera policy, the Committee cited the negative effects of cameras on witnesses and attorneys. But the FJC Report found that two-thirds of judges believe cameras have little or no effect in motivating witnesses to be truthful, and more than half of judges think video recording has little or no effect in making witnesses nervous.
“Video recording in my court has been a total non-event — I do not believe it has impacted any aspect of our proceedings,” said one judge.
The Committee further cited concerns about attorneys pandering to cameras. However, one attorney who participated in the program said the cameras were hidden and largely unnoticeable during proceedings. “I could detect no noticeable difference in courtroom decorum and the demeanor of the parties and the lawyers,” the attorney noted in the FJC Report.
In refusing to recommend a modification to the camera ban, the Committee stressed worries about the $989,526 cost of the equipment, labor and video hosting. However, this amount represents less than 0.01 percent of the $6.78 billion federal judiciary budget.
“It’s a convenient excuse,” Roth said. “The costs of cameras and equipment are going down each year, and the individuals who work for the federal judiciary that know how to use the technology are getting younger. It’s a weak reason from both a monetary perspective and a hiring perspective.”
The Committee also attributed its decision to a “low level of interest in recording proceedings,” noting that only 158 proceedings were recorded and published on the judiciary’s website, only 33 of 198 judges in participating courts recorded a proceeding, and the recordings were only viewed 21,530 times in 2014.
But Roth, joined by judges participating in the program, believe these reduced numbers stem from design flaws in the pilot program. For example, judges participated in the program on a volunteer basis, and each recorded proceeding required the consent from all parties.
“As I anticipated [at the outset of the program], the provision giving the parties the right to decline to have a proceeding recorded greatly diminished, if not eliminated, the potential value of the pilot,” one participating judge wrote in the Report.
The future of cameras in federal courts remains uncertain after the most recent failed pilot program.
The federal judiciary previously tested cameras in courts between 1991 and 1994 by allowing video recording in the U.S. Court of Appeals for the Second and Ninth Circuits and six U.S. District Courts. Although the Committee recommended authorizing the recording and broadcasting of civil proceedings after the initial pilot program, a majority of the Judicial Conference voted to maintain the ban in U.S. District Courts.
The blanket prohibition on recording judicial proceedings was amended to allow the courts of appeals to decide for themselves whether to permit recordings. The Second and Ninth Circuits decided to do so while the remaining courts of appeals did not. The blanket ban still remains on federal trial courts. The Second and Ninth Circuits are currently the only federal appeal courts to allow recordings of proceedings. The Ninth Circuit even publishes its proceedings on its website and YouTube channel.
But the remaining 12 federal appeals courts, including the U.S. Supreme Court, ban all outside recording devices. The Supreme Court bans recordings devices from the public but records audio of its oral arguments and publishes the recordings at the end of each argument week.
Members of Congress have introduced legislation permitting cameras in federal courts. Recent attempts include the Eyes on the Courts Act of 2015 in the House of Representatives and the Sunshine in the Courtroom Act of 2015 in the Senate, but neither have advanced past the committee stage.
West explained that advancing technology, rather than pilot programs or legislation, may ultimately soften the judiciary’s stance on recording devices.
“At some point the technology is going to be too ubiquitous,” West said. “Cameras will be in peoples’ glasses or shirts, and it’ll be too difficult to find. [The judiciary] will realize it is better off having a formal program where they have control over the cameras.”
But until a change occurs, cameras will remain banned, journalists will continue being restricted to traditional newsgathering techniques, and the cloud will persist over sunshine in the federal courts.