B. Cameras and other technology in the courtroom
Except as otherwise provided by statute or rule, the Federal Rules of Criminal Procedure expressly prohibit “the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Fed. R. Crim. P. 53. At least one district court in the Fourth Circuit has held that this restriction does not violate the public’s First Amendment right of access to judicial proceedings. See United States v. Moussaoui, 205 F.R.D. 183, 185 (E.D. Va. 2002).
The Fourth Circuit’s Electronic Device Policy prohibits photography and audio/visual recording devices in the courthouse absent the Fourth Circuit’s express authorization. Public Internet or broadband access is not available anywhere in the courthouse or annex except the Fourth Circuit law library. See http://www.ca4.uscourts.gov/oral-argument/visiting-the-court/electronic-device-policy.
The use of cameras and other technology in the courtroom is governed primarily by Arizona Supreme Court Rules 122 and 122.1.
Rule 122 relates to camera coverage, and explains that an appropriately submitted camera request should be granted unless the court makes specific, on-the-record findings that there is a likelihood of harm arising from one or more of the following factors, and that the harm outweighs the benefit of coverage to the public:
A. The impact of coverage upon the right of any party to a fair hearing or trial;
B. The impact of coverage upon the right of privacy of any party, victim, or witness;
C. The impact of coverage upon the safety and well-being of any party, victim, witness, or juror;
D. The likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding;
E. The adequacy of the physical facilities of the court;
F. The timeliness of the request;
G. Whether the person making the request is engaged in the dissemination of news to a broad community; and
H. Any other factor affecting the administration of justice.
Ariz. R. Supreme Ct. 122(d).
With regard to personal recording devices, Rule 122(h) provides that a person may use such a device, but must give notice to the court. A person is not required to submit a request to use a personal recording device. Recording devices, including cameras, may not be used while the judge is off the bench. Ariz. R. Supreme Ct. 122(k).
Rule 122.1 provides for the use of personal electronic devices in a courthouse and explains the limitations on their use.
Idaho Court Administrative Rule 45 governs cameras in trial courtrooms throughout Idaho, Rule 46a governs cameras in appellate proceedings held at the Idaho Supreme Court building in Boise, and Rule 46b governs cameras in appellate proceedings held outside of Boise.
Idaho court rules do not specify what proceedings may be photographed, leaving the decision largely to the presiding judge. The rules do identify which proceedings may not be photographed. Those include proceedings that are closed to the public, including grand jury proceedings, issuance of arrest and search warrant proceedings, adoptions, mental health proceedings, child protective proceedings, and termination of parent-child relations (I.C.A.R. 45(c)(3)), conferences between judges, attorneys and clients in the courtroom, notes on counsel table or exhibits before they are admitted into evidence (I.C.A.R. 45(c)(1)) and in-camera sessions or judicial deliberations (I.C.A.R. 45(c)(2)).
Photographing or videotaping of jurors is prohibited, including during jury selection. I.C.A.R. 45(h)(1). Unless the presiding judge allows otherwise, only one still photographer and one video camera may be allowed in the courtroom. I.C.A.R. 45(h)(9).
The presiding judge must give prior approval to all audio/visual coverage of courtroom proceedings, including the transmission of sounds and images via the Internet I.C.A.R. 45(g). Sample request forms are included within Idaho Court Administrative Rule 45 (I.C.A.R. 45(l)) and on the internet via The Media Guide to the Idaho Courts, http://www.isc.idaho.gov/resources/ISC_MediaGuide.pdf. The judge may, at his or her discretion, limit, restrict or prohibit without notice the use of motion and still cameras in the courtroom when the administration of justice requires. And, importantly, the judge’s decision is not subject to appellate review. I.C.A.R. 45(b).
Idaho Court Administrative Rules 46a and 46b provide for cameras in Idaho’s appellate courts— the Idaho Supreme Court and the Idaho Court of Appeals. Rule 46a governs all proceedings held at the Idaho Supreme Court building in Boise, while Rule 46b governs cameras in appellate proceedings held around the state as the Supreme Court travels around the state to hold hearings. Under either rule, prior approval must be obtained from the Chief Justice of the Supreme Court or the Chief Judge of the Court of Appeals and “will be limited to working media representatives and others approved by the Court.” For further guidance, see The Media Guide to the Idaho Courts, http://www.isc.idaho.gov/resources/ISC_MediaGuide.pdf, or the Idaho Press Club’s website, which includes a page entitled “Cameras in the Idaho Courtroom,” http://www.idahopressclub.org.
The Kansas Supreme Court historically has been accepting of the media’s use of cameras and other technologies to cover courts. In State v. McNaught, 713 P.2d 457 (Kan. 1986), the state supreme court reviewed how it had experimented with allowing media to use cameras in Kansas courtrooms beginning in 1981. In McNaught, cameras were an issue, because the appellant claimed that he had been convicted of a crime because of prejudicial pre-trial publicity. The supreme court rejected the claim, however, saying the appellant had “not shown that his rights were adversely affected by media coverage in the courthouse during the preliminary hearing, nor has he presented evidence that any individual juror’s ability to judge the defendant fairly was influenced by media coverage prior to trial.” McNaught,713 P.2d at 466.
Media coverage of Kansas judicial proceedings now is addressed by Kansas Supreme Court Rule 1001. A preface states that the rule applies to “various electronic devices including phones, tablets, and other wireless communication devices” in courtrooms. The preface includes an acknowledgement “that electronic devices have become a necessary tool for court observers, journalists, and participants.” According to the preface, courts “should champion the enhanced access and the transparency made possible by use of these devices.” At the same time, however, the preface states that courts must take care to protect “the integrity of proceedings within the courtroom.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf. Cameras have been allowed in Kansas courtrooms since 1981. Eric Weslander,“48 Hours” Sets Up for Murray Trial, Lawrence Journal-World (February 16, 2005).
Kansas Supreme Court Rule 1001 on media coverage applies to all types of judicial proceedings, and it prohibits use of laptops, cellphones and other electronic devices unless permitted by the presiding judge or justice. Rule 1001(e) specifies that the judge or justice may permit the “news and educational media and others” to use electronic devices. The permissible users are individuals “such as a publisher, editor, reporter, or other person employed by a newspaper, magazine, news wire service, television station, or radio station who gathers, receives, or processes information for communication to the public, or an online journal in the regular business of newsgathering and disseminating news or information to the public.” Those who want to use a device “must request specific permission in advance,” if they want “to record and transmit public proceedings, including real-time coverage, in Kansas courts.” In section (e)(2), the rule states that one who plans to request permission “to bring cameras, recording equipment, or other electronic communication devices into the courtroom” is required to give a week’s notice, although a judge may waive the requirement “for good cause.” According to section (e)(2), when individuals receive permission to use electronic devices, they may record video or audio, take photographs or otherwise engage in electronic communications “only for the purpose of education or news dissemination.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Kansas Supreme Court Rule 1001 does not impose particular limits on use of electronic devices to video-record or photograph evidentiary exhibits, although a judge has discretion to prescribe limits. Under section (e)(3), the rule makes clear that the judge has “power, authority, or responsibility to control the proceedings.”
The rule includes restrictions on where devices may be used in a courtroom. According to section (e)(13), audio-visual equipment and operators “ordinarily should be restricted to areas open to the public.” They must stay within an area authorized by the judge and “may not move about the courtroom for picture-taking purposes during the court proceeding.”
In addition, section (e)(4) states: “Audio pickup and audio recording of a conference between an attorney and client, or among cocounsel, counsel and opposing counsel, or among attorneys and the judge are prohibited regardless of where conducted.” However, the rule does not prohibit photographing of such a conference. Section (e)(5) prohibits “[f]ocusing on and/or photographing materials on counsel tables or in designated areas.”
Section (e)(12) applies to pool coverage of court proceedings. The rule states that: “When more than one television station, still photographer, or audio recorder desires to cover a court proceeding,” a court-appointed coordinator will designate a pool photographer and audio recorder. In case of a dispute about the designation and operation of a pool, “no audio or visual equipment will be permitted at the proceeding.” A representative of the pool is to receive requests for copies of audio recordings, video, or photographs and to supply copies to the media at no more than actual cost. Participation in a pool is not required of individuals “who provide text accounts via approved electronic devices.”
Various provisions of the rule apply to electronic devices that can be used to take photographs or audio- or video-record witnesses or other participants in proceedings. Section (e)(3) provides that a judge’s “authority to disallow possession of electronic devices at a proceeding or during the testimony of a particular witness extends to any person” who is subject to the rule.
Section (e)(6) Prohibits photographing of jurors. The rule states that: “In a courtroom in which photography is impossible without including the jury as part of the unavoidable background, photography is permitted as long as no close-ups identify individual jurors.”
Under section (e)(7), a trial judge “must prohibit the audio recording and photographing of a participant in a court proceeding if the participant so requests and (a) the participant is a victim or witness of a crime, a police informant, an undercover agent, or a relocated witness or juvenile, or (b) the hearing is an evidentiary suppression hearing, a divorce proceeding, or a case involving trade secrets. Subject to a court directive to the contrary, the news media may record and photograph a juvenile who is being prosecuted as an adult in a criminal proceeding as authorized by K.S.A. 38-2347.”
Section (e)(9) prohibits photographing or any recording of a criminal defendant who is in restraints while being escorted to or from a court proceeding.”
In addition, section (e)(9) imposes some limits on use of electronic devices outside of the courtroom. The rule prohibits recording of an interview for electronic transmission, including broadcast, “in a hallway immediately adjacent to a courtroom entrance if a passageway is blocked or a judicial proceeding is disturbed thereby.” The rule also prohibits taking photographs “or other recording through a window or open door of a courtroom.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Under Rule 1001(e)(15), a judge “may restrict operation of cameras or electronic devices which emit distracting sounds during court proceedings.” The rule recommends use of a “quieting device” with a still camera that is not designed to operate silently.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Although Kansas Supreme Court Rule 1001 on media coverage of court proceedings does not mention Webcasting specifically, a judge may allow it the same as television broadcasting. Oral arguments before the Kansas Supreme Court are streamed in real time. See Kansas Supreme Court Live and Archived Oral Arguments, http://www.kscourts.org/kansas-courts/supreme-court/arguments.asp. Webcasting of at least two trials had been allowed by Kansas District Court judges as of October 2013, according to Ron Keefover, former information-education officer for the Kansas Judicial Branch. One trial was for a defendant charged with murder and arson in Kingman County, and the other was a murder case in Barton County. Hurst Laviana, Brett Seacat sentenced to life for wife’s murder, The Wichita Eagle (August 5, 2013), https://www.kansas.com/news/local/crime/article1120305.html, and Deb Farris, Adam Longoria found guilty of capital murder, KAKE-TV (April 6, 2012).
Tweeting from Kansas courtrooms has been allowed for some time. A federal district judge permitted a Wichita Eagle reporter to report via Twitter in a case in early 2009. Paul Farhi, The Twitter Explosion, American Journalism Review (April/May 2009), http://ajrarchive.org/article.asp?id=4756. Other judges followed suit, although not always without difficulty. For example, in 2012, a state district judge declared a mistrial after a reporter inadvertently live-tweeted photos that included the profile of a juror. Rachel Bunn, Reporter’s tweeted photo of juror leads judge to declare mistrial in murder prosecution, Reporters Committee for Freedom of the Press (April 16, 2012), https://www.rcfp.org/reporters-tweeted-photo-juror-leads-judge-declare-mistrial-murder-pr/.
Criminal Proceedings: Rule 112 of the Pennsylvania Rules of Criminal Procedure states that courts “shall . . . prohibit the taking of photographs, video, or motion pictures of any judicial proceedings or in the hearing room or courtroom or its environs . . . .” The term “environs” is defined as “the area immediately surrounding the entrances and exits to the hearing room or courtroom.” Id.
The Pennsylvania Superior Court held in Commonwealth v. Davis, 635 A.2d 1062 (Pa. Super. 1993), that Rule 328 of Pennsylvania’s Rules of Criminal Procedure, which later was replaced by Rule 112, prohibited the photographing of jury views of a crime scene and any other location where criminal proceedings must be held outside of the physical courtroom. The language of Rule 328 prohibited “the taking of photographs in the courtroom or its environs or radio or television broadcasting from the courtroom or its environs during the progress of or in connection with any judicial proceedings.” (emphasis added). The court held jury views were considered environs of the courtroom, and that the Rule was a permissible “time, place and manner restriction” that did not violate the First Amendment, as the press and public were fully able to witness the jury view. Davis, 635 A.2d at 1070.
Rule 112 prohibits the transmission of communications by telephone, radio, television or advanced communication technology from the hearing room or the court or its environs during the process of or in connection with any criminal judicial proceeding. Some Pennsylvania courts have interpreted this rule to prohibit journalists from sending tweets, blog posts, texts and other internet postings from the courtroom, while others have permitted tweeting and other electronic communications from court.
In Commonwealth v. Hewlett, 189 A.3d 1004 (Pa. Super. 2018), an appellate court considered whether a trial court abused its discretion in a criminal case when it allowed the government to present evidence concerning a trial spectator’s cell phone use after a witness mentioned in her testimony that the spectator was using a cell phone in the courtroom, and the trial court found that the spectator was texting about the witness’s testimony. The appellate court ruled that the defendant had waived any challenge, and in a concurring opinion observed that the trial court had the authority to “enforce its order that a cell phone may not be used in its courtroom for any purpose, particularly during a trial and especially if the effect of such use is to intimidate a witness while she is testifying.” Id. at 1014-15 & n.3 (Bowes, J. concurring). The concurring judge agreed that a courtroom ban on cell phones was a “permissible restriction” on the “otherwise-protected First Amendment activity” of attending a trial. Id. at 1015 (Bowes, J. concurring). That judge explained that the cell phone ban was permissible “due to the overriding governmental interest in preserving the integrity of the trial.” Id.
Civil Proceedings: Rule 223 of Pennsylvania’s Rules of Civil Procedure, which gives the court authority to make orders and enforce rules “regulating or excluding the public or persons not interested in the proceedings,” includes an official note stating that “the exclusion of the taking of photographs or radio or television broadcasting is governed by” Pennsylvania Rule of Judicial Administration 1910. That rule provides that “unless otherwise provided by the Supreme Court of Pennsylvania, judges should prohibit broadcasting, televising, recording and taking photographs in the courtroom and areas immediately adjacent thereto . . . .” It makes exceptions for purposes of judicial administration; investitive, ceremonial or naturalization proceedings; and “instructional purposes in educational institutions.”
Rule 1910 also permits judges to exercise discretion to allow broadcasting, televising, recording and taking photographs of any trial court nonjury civil proceeding (excluding support, custody or divorce proceedings) if the parties consent. In such instances, each witness who is depicted or recorded also must consent, and a witness or party who objects should not be photographed or have his/her testimony broadcast or telecast. The rule further provides that the means of recording must not “distract [the] participants or impair the dignity of the proceedings.” Id. Permission for broadcasting, televising, recording and photographing any civil nonjury proceeding must first be expressly given by the judge.
The civil rules of procedure do not include a rule like Criminal Rule 112 concerning the use of “advanced communication technology” in court.
Local Court Rules for Civil Proceedings in the Court of Common Pleas: When considering the possibility of recording a civil proceeding in the Court of Common Pleas, one should always consult the local rules and individual practices of the presiding judge, some of which may contain special provisions for technology in the courtroom. While not an exhaustive list, below is a summary of certain counties that have adopted such rules:
In Adams County, Rule 140 of the Adams County Rules of Judicial Administration, prohibits “pictures or photographs to be taken immediately preceding or during sessions of [the court] or recesses between sessions, in any of the courtrooms or at any place in the courthouse within forty feet of the entrance of the courtroom unless specially allowed by the President Judge.” The rule also prohibits any court proceeding from being “broadcasted or televised,” or “mechanically or electronically recorded except by the official court reporter unless specifically allowed by the President Judge or the Judge presiding over that proceeding.” For pictures or photographs of any party to a civil or criminal action, juror, or witness, “knowledge and consent of the person or persons photographed” is required for photographs taken “in the law library or in any office or other room of the courthouse.”
In Westmoreland County, Rule W300 of the County Rules of Civil Procedure states that generally there “shall be no broadcasting, televising, recording or the taking of photographs in the courtroom and areas immediately adjacent thereto” in civil proceedings. This rule applies during sessions of court or recesses in between. There are exceptions for the “presentation of evidence,” “perpetuation of a record,” or “other purposes of judicial administration. There are also exceptions for investiture, ceremonial, or naturalization proceedings.”
The Westmoreland County Rules further specify that the “photographic, electronic, and reproduction of appropriate court proceedings” may be authorized at the discretion of the court, but must meet the following conditions.
“(1) The means of recording will not distract participants or impair the dignity of the proceedings; and
(2) The parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproductions; and
(3) The reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
(4) The reproduction will be exhibited only for instructional purposes in educational institutions.”
The rule for broadcasting, televising and photographing criminal proceedings in Westmoreland County is that all such activities are explicitly prohibited by Rule WC112 of the Westmoreland County Rules of Criminal Procedure. The prohibition of those activities applies “anywhere in the courthouse during the progress of or in connection with any criminal judicial proceeding.”
Before a District Justice: Photographing, broadcasting, televising, or recording of judicial proceedings is prohibited in all proceedings before a District Justice by Rule 2.8(C) of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges.
Before an Appellate Court:
Supreme Court: The internal operating procedures of the Pennsylvania Supreme Court lay out the general provisions of photographing, recording, and broadcasting proceedings in the Supreme Court. See 210 Pa. Code § 63.9.The Executive Administrator of the Supreme Court may permit photography, broadcasting, and recording at their discretion, and any request to photograph and or broadcast must be made at least three business days prior to the proposed date. In addition, the internal operating procedures set out specific rules for the Pennsylvania Cable Network (“PCN”) to record Supreme Court proceedings.
Commonwealth Court: The Commonwealth Court’s internal operating procedures allow recording by PCN of en banc proceedings before the Commonwealth Court. See 210 Pa. Code § 69.502. The internal operating procedures provide detailed rules about PCN’s recording.
Superior Court: There are no Superior Court rules regarding cameras and other technology in the courtroom.
In 1988, the Vermont courts enacted rules which focused primarily on the recording of court proceedings by news media using the video and still cameras and audio equipment common at that time for broadcasting or publication. See V.R.C.P. Rule 79.2 (civil proceedings); V.R.Cr.P. Rule 53 (criminal proceedings); V.R.P.P. Rule 79.2 (probate proceedings); V.R.A.P. Rule 35 (Vermont Supreme Court proceedings); see also V.R.F.P. 4.0(a)(2) and V.R.E.C.P. 3 (applying Vermont Rules of Civil Procedure, includingV.R.C.P. 79.2 to public proceedings in family and environmental proceedings). Subject to certain exceptions, these rules authorize the media “to record proceedings of the court, in the courtroom and areas immediately adjacent thereto which are generally open to the public” except when the judge assigned to the proceeding in question, on the judge’s own motion or on a motion of a party or request of a witness, directs otherwise prior to or during the proceeding in question. V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2; see also V.R.A.P. Rule 35 (“The news media may record proceedings of the Supreme Court, unless the Chief Justice directs otherwise.”). Proceedings are defined broadly to include any event which occurs in open court in an action or court case to which the Vermont Rules of Civil, Criminal or Probate Procedure apply. V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2.
Under the current rules, “recording” is defined as “the recording of sounds or images by microphone, tape recorder, camera or other audio or visual recording equipment for live transmission or for later transmission, broadcasting or other use, by a member of the news media, or any other person other than the person creating the official court record.” V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2; see also V.R.A.P. Rule 35 (containing substantially similar language). The rules exclude audio recording of bench conferences or conferences between members of the court, between co-counsel or between counsel and his or her client. Id. Moreover, the rules exclude recording in the courtroom during a recess, bench conferences, or proceedings in chambers, unless permitted by the presiding judge. Id.
In 2018, however, the Vermont Supreme Court proposed an order abrogating and replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure, Rule 79.2 of the Vermont Rules of Probate Procedure and Vermont Supreme Court Administrative Directive No. 28. See http://www.vermontjudiciary.org/attorneys/rules/proposed. The proposal seeks to replace those rules with a statement making the civil rule applicable to proceedings in the criminal and probate divisions. No change is proposed for V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3 so V.R.C.P. 79.2 will continue to apply to public proceedings in the family and environmental divisions.
These revised rules were developed by a special committee which included representatives of the media. Public comments were due on January 14, 2019. Although the new rules likely will not be effective until mid-2019, it is likely that the rules will be promulgated in their present form. The new rules “reflect extensive advances in technology that place the ability to record and transmit images and sound in the hands of any person in a courthouse or courtroom with a smartphone or other portable electronic device in his or her possession.” Reporter’s Note, Proposed Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure and Rule 79.2 of the Vermont Rules of Probate Procedure and Abrogating Vermont Supreme Court Administrative Directive No. 28.
The proposed rule governs both possession and use of recording and transmitting devices. Proposed Rule 79.2(c) broadly provides that a device may be used non-disruptively anywhere in a courthouse. Proposed Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a courtroom. The proposed rule, supplemented by Administrative Order No. 46, lays out a scheme for registration of media and their representatives entitling them to use devices to record and transmit courtroom proceedings. The proposed rule provides that participants may use devices in the courtroom with some restrictions. The proposed rule also allows nonparticipants to possess devices in the courtroom, but to use them only in limited circumstances. Devices must be turned off or in silent mode, except during non-evidentiary hearings when the jury or jury pool is not present. The proposed rule also contains provisions applicable to jurors. Proposed Rule 79.2(e) sets limits designed both to protect the decorum and the necessary confidentiality of certain proceedings. The proposed rule allows limits on use, but contains a presumption in favor of media access. Proposed Rule 79.2(f) states that the court may waive any of the limitations imposed by the rule on request for good cause and subject to any necessary or appropriate restrictions. The proposal abrogates current Administrative Directive No. 28, which concerns use of electronic devices in a courtroom.