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Ninth Circuit begins live video streaming en banc proceedings

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The U.S. Court of Appeals in San Francisco (9th Cir.) announced in December that it would become the first federal…

The U.S. Court of Appeals in San Francisco (9th Cir.) announced in December that it would become the first federal appeals court in the country to live stream video coverage of its major cases. The court began providing streaming arguments over the Internet for the media and general public on Dec. 9, 2013.

“The Ninth Circuit has a long history of using advances in technology to make the court more accessible and transparent," the court's Chief Judge Alex Kozinski told the Los Angeles Times. "Video streaming is a way to open the court’s doors even wider so that more people can see and hear what transpires in the courtrooms, particularly in regard to some of our most important cases.”

The recent announcement limits video streaming to cases heard en banc, a procedure used to resolve intra-circuit conflicts or other complex or important legal questions. A typical appeal is heard by a three-judge panel; en banc cases are heard before the chief judge of the circuit and 10 other judges chosen at random, but only if enough judges on the circuit vote to review a panel decision. The Ninth Circuit currently hears approximately 20 en banc cases per year.

In addition, as of Jan. 6, 2014, the Ninth Circuit provides live audio streaming of all of its proceedings through its website.

With these moves, the circuit has also provided media outlets with an alternative to sending journalists to possibly far away locations to cover oral arguments. Kristina Davis, a federal courts reporter at The San Diego Union-Tribune, said the option is especially helpful because declining newsroom budgets mean that "travel expenses have more impact."

"It's good to be able to sit at my desk and write the story as I listen," Davis said.

The Ninth Circuit includes federal district courts in nine of the western states, as well as two Pacific Island jurisdictions and four appellate courthouses. All courtrooms in the Ninth Circuit’s appellate courthouses are now audio and video equipped, with three courtrooms in San Francisco, Calif., Pasadena, Calif., and Portland, Ore. all having high definition cameras.

An early tech leader

Unlike much of the federal judiciary, the Ninth Circuit has embraced the use of technology in its courtrooms since the early 1990s. At that point, it was only one of two circuit courts to allow outside cameras into its courtrooms at the request of the media. Since the early 1990s, the court has granted 378 media requests for still and video photographs. The Second Circuit also employs that practice, but only in civil cases where the parties are represented by counsel.

Through the 1990s and into the 2000s, the Ninth Circuit’s use of technology continued to grow, according to the website of the Administrative Office of the U.S. Courts. In 2003, the court began to provide the public with full access to digital audio recordings of all of its oral arguments across all four appellate locations within 24 hours of the argument. Shortly after this development, the court also began to provide video recordings through the use of courthouse cameras after the end of oral arguments.

Then, in 2010, the Ninth Circuit began to offer its first real-time streaming of en banc proceedings, but it only provided the service to all of its courthouses. It did not stream arguments to the general public.

That same year, the a district judge within the Ninth Circuit attempted to take the use of technology one step farther by providing coverage of a district court trial on the constitutionality of Proposition 8, a ballot initiative that banned same-sex marriage in California. It planned to remotely broadcast the trial to five federal courthouses across the nation, but the U.S. Supreme Court blocked the effort.

The Supreme Court’s ruling was not based on the merits of the argument, but, rather, turned on whether the trial court acted properly in allowing the remote broadcast of the trial.

“The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States," the majority wrote in an unsigned opinion. " It did so to allow the broadcasting of this high-profile trial without any considered standards or guidelines in place… [T]he order in question complied neither with existing rules or policies nor the required procedures for amending them.”

Other courts still low-tech

The federal court system has been long shied away from technology in the courtroom. This history dates back to the 1940s and continues through today.

The first formal acknowledgment of electronic coverage came in 1946, when the Federal Rules of Criminal Procedure explicitly prohibited the use of electronic media in all criminal proceedings.

In 1972, the Judicial Conference, the rule-making body for the federal judiciary, expanded the prohibition to include all “broadcasting, televising, recording, or taking of photographs in the courtrooms or areas immediately adjacent thereto.” This prohibition was written into the Code of Conduct for all federal judges and went beyond the 1946 prohibition in criminal proceedings to include all civil proceedings as well.

The strict stance on electronic media in the courtroom was based on two main policy concerns. First, the Judicial Conference was concerned that the presence of audio or video technology would have a negative impact on the presentation and consideration of all evidence in the trial-level courts. The concern was that witnesses or attorneys or even juries would act differently if they knew the trial was being viewed or heard by the public.

The second policy reason dealt with the standard of review afforded the appellate courts. Courts of appeal normally give deference to the trial court on matters such as credibility. The Judicial Conference was concerned that if there was a clear and detailed audio or video record of the trial proceedings, the courts of appeal might impede on the deference granted to the trial courts.

In spite of these policy concerns, upon the recommendation of the internal Ad Hoc Committee on Cameras in the Courtroom, the Judicial Conference commenced its first pilot program for cameras in the courtrooms on July 1, 1990. The pilot program was limited to the Ninth and Second Circuits, and six district courts. Circuit courts are the federal courts of appeal, while district courts are the federal trial-level courts.

At the end of the pilot program in September 1994, the Judicial Conference, disregarding the findings of the Federal Judicial Center’s research “Electronic Media Coverage of Federal Civil Proceedings,” declined to approve a recommendation that would have permitted photography, recording, and broadcasting of civil proceedings in federal trial and appellate courts.

Two years later, in March 1996, the conference seemingly reversed its stance. It authorized each circuit court to make its own determination as to whether it would permit any photography, television or radio coverage of oral arguments.

While that decision may seem to be a reversal, Karen Redmond, public information officer at the Administrative Office of the U.S. Courts explained it this way: “The pilot showed there might be a chilling effect on witnesses and jurors at the trial court level if cameras were present. [Since] there are no witnesses or jurors in appellate proceedings [there is] no chilling.”

It was after this change that the Ninth Circuit made a regular practice of granting media requests to record oral arguments in its appellate courts, as the Judicial Conference still strongly urged against audio and video coverage of proceedings at the trial-level district courts.

Moving forward

In September 2010, the Judicial Conference announced its second pilot program aimed only at trial-level district courts to evaluate the effect of cameras in the courtroom. The three-year program was limited to civil cases and also required the approval of the presiding judge as well as the consent of all parties prior to the proceeding.

In the U.S. District Court for southern Ohio, proceedings that were permitted to be videotaped would be recorded by court staff and distributed to the media outlets via the court’s website. This distribution would not be done in real time, however.

The pilot kicked off on June 18, 2011, includes 13 district courts spanning the nation, and was originally scheduled for completion in mid-2014. Last September, however, the Conference announced a one-year extension to the program, citing a need for more data.

With the conclusion of the pilot in the near future, the federal judiciary will yet again be faced with the question of whether it will permit the expansion of the use of cameras in the courtroom.

California media lawyer Kelly Aviles believes that there will be a move towards more open proceedings.

"It is destined to happen based on how technology is proceeding," said Aviles, who is vice president for open government compliance at Californians Aware, a nonprofit organization focused on open government. "The world is moving towards everything being accessible on demand. Court proceedings should be no different."

The district-court pilot does not affect other circuit courts, which are still under the guidance given by the Judicial Conference in 2010.

To Aviles, the Ninth Circuit's use of live streaming "will show other courts that it's not that scary” to allow for more transparency.

Journalists also remain optimistic that, following the lead of the Ninth Circuit, the federal courts will move towards broadcasting more hearings.

"[A]nything any federal court does that involves a camera in the courtroom, particularly live, is a very positive development, given the hidebound ways of the federal judiciary on this issue through the years," said Howard Mintz, a legal affairs reporter at the San Jose Mercury News.