B. Cameras and other technology in the courtroom
The First Amendment right of access only protects physical access, not cameras or other recording equipment. See Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir. l984). Furthermore, the Second Circuit has held that the denial of recording devices in the courtroom is reasonable and does not violate the First Amendment. United States v. Yonkers Bd. of Educ., 747 F.2d 111 (2d Cir. 1984) (affirming lower court’s denial of newspaper reporter’s motion to allow a tape recorder in courtroom during a civil trial).
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.
While the First Amendment guarantees the press a right of access to attend and observe criminal trials, the Fifth Circuit has held that this does not include a right to televise, record, or otherwise broadcast them. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). Indeed, the federal rules prohibit the taking of photographs and radio broadcasting from the courtroom during a criminal trial. Fed. R Crim. P. 53. But television coverage of a trial does not necessarily violate a defendant’s right to due process. United States v. Edwards, 785 F.2d 1293, 1296 (5th Cir. 1997).
Whether television broadcasting in proceedings other than criminal will depend on the rules of the court. For example, in the Eastern District of Louisiana, television broadcasting of federal trials is prohibited by local rule. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). With regard to executions, the Fifth Circuit has held that there is no constitutional right to televise an execution. Garrett v. Estelle, 556 F.2d 1274, 1277 (5th Cir. 1977).
How the Fifth Circuit treats activities such as webcasting, liveblogging, or tweeting is not yet clear as the Fifth Circuit has not given any direction to reporters. But one reporter’s personal experience in the Northern District of Texas is recounted in a New York Times article, A Trial and a Twitterstorm: On Live-Tweeting from a Federal Courthouse, at the following link:
Seventh Circuit Rule 55 (“Prohibition of Photographs and Broadcasts”) states:
The taking of photographs in, or radio or television broadcasting from the courtroom or any other place on the 27th floor or judges' chambers or corridors adjacent thereto on the 26th floor of the Federal Courthouse located at 219 South Dearborn Street, Chicago, Illinois, without permission of the court, is prohibited.
Northern District of Illinois Local Rule 83.1 governs limitations on use of court facilities, and provides:
No Cameras or Recorders. . . . [T]he taking of photographs, radio and television broadcasting or taping in the court environs during the progress of or in connection with judicial proceedings including proceedings before a United States magistrate judge, whether or not court is actually in session, is prohibited.
N.D. Ill. Local R. 83.1(c).
Southern District of Illinois Local Rule 83.5 provides that “[u]nless otherwise authorized by Order of this Court, the taking of photographs, sound recordings (except by the official court reporters in the performance of their duties), and broadcasting by radio, television, or other means, in connection with any judicial proceeding on or from the same floor on which a courtroom is located is prohibited.” Northern District of Indiana Local Rule 83-3(a) likewise prohibits taking photographs, making sound recordings, and broadcasting (by “radio, television, or any other means”), “anywhere on a floor where a courtroom, jury assembly room, grand-jury room, or clerk’s office is located when they are done in connection with a judicial proceeding. . . .” See also S.D. Ind. Local Rule 83-3(a); E.D. Wis. Gen. Local R. 83(a).
Central District of Illinois Local Civil Rule 83.7 provides that “no electronic devices will be permitted into the courthouse” subject to certain limited exceptions; “Electronic Devices” is broadly defined as including cameras, video recorders, audio recorders, cellular or digital phones, computers, and all similar “forms and methods of recording, transmitting, or communicating.” See also N.D. Ind. Local Rule 83-3(c)(1), (3) (“[o]rdinarily, no one may have a cell phone or personal digital assistant (‘PDA’) in the courthouse,” and “[n]o one may use a cell phone or PDA in the courthouse for an improper purpose, including without limitation taking pictures or videos”; judges may confiscate devices or fine users if device makes “an audible noise in the judge’s courtroom while court is in session”); N.D. Ill. General Order 09-015 (Use of Text-Based Technology to Receive and Send Text Messages on Handheld Devices in Courtrooms), https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_media/GO09-015.pdf (“any Judge of the Court may, in his or her discretion, permit the use of text-based technology to receive and send text messages on handheld devices by persons in the public area of the Courtroom during Court proceedings, so long as such use of text-based technology does not include the use of any photography, broadcasting, radio, telephone or other audio transmission, or any audio or visual recording or transmission in violation of Local Rule 83.1(c), and does not emit sounds or otherwise disturb or distract from Court proceedings”).
Based on Federal Rule of Criminal Procedure 53 and a local district court rule barring cameras, the Seventh Circuit held a criminal defendant was properly denied permission to record and broadcast his trial on charges of failing to register for the draft. United States v. Kerley, 753 F.2d 617 (7th Cir. 1985). “All we have in the case before us is a limitation on the manner of news coverage; the media can do everything but televise the trial. The limitation can withstand constitutional scrutiny so long as it is reasonable and neutral, as with time, place, and manner restrictions generally.” Id. at 620-21. See also United States v. Torres, 602 F. Supp. 1458 (N.D. Ill. 1985) (networks allowed to copy tapes after they have been introduced into evidence and at convenient court recesses, but local court rule barring cameras, along with Sixth Amendment rights of defendants, precluded installation of wires in the courtroom in order to record videotapes simultaneously with their introduction into evidence).
“[T]he district court may, by rule, exclude photographing and broadcasting from those areas of the courthouse which would lead to disruption or distraction of judicial proceedings. . . .” Dorfman v. Meiszner, 430 F.2d 558, 561 (7th Cir. 1970). However, a court rule barring all photographs in the courthouse “environs” was overbroad because it included areas, such as the ground floor plaza and sidewalks, where “no foreseeable noise or commotion” could disturb the court's own proceedings. Id. at 562. Compare Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“the lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views”).
Subsequently, the Northern District of Illinois enacted rules establishing a “designated media area” in the Chicago federal courthouse lobby for interviews and photography. See N.D. Ill. General Order 07-001 (Guidelines Regarding Use of the Everett McKinley Dirksen U.S. Courthouse Lobby by Media Personnel) (amended 5/15/13 and August 5, 2016), https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_media/GenOrder07-001.pdf. See also C.D. Ill. Local Civil R. 83.7(A) (“[n]ews media representatives wishing to conduct interviews in relation to a court case may contact the presiding judge to seek permission to bring electronic equipment into the building for that purpose. If permission is granted, the judge will designate a specific area of the courthouse where such electronic equipment may be stored and used”).
Some Local Rules also codify the judges’ authority to issue special decorum orders in high-profile cases. See, e.g., S.D. Ill. Local R. 83.6(c), (d) (“In a widely publicized or sensational case, the Court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses which might interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters which the Court may deem appropriate for inclusion in such an order”); N.D. Ind. Local Crim. R. 53-1(a).
In the Northern District of Illinois, the district court and/or individual district judges will frequently issue additional guidelines for coverage by the news media in high-profile cases, including restrictions on the use of electronic devices in the courtroom. See, e.g., Guidelines for Proceedings in United States v. Hastert (June 8, 2015) (https://www.ilnd.uscourts.gov/_assets/_news/Guidelines%20in%20USA%20v.%20Hastert.pdf); Guidelines for the Media Covering United States v. Warner & Ryan (Sept. 20, 2005) (http://www.ilnd.uscourts.gov/_assets/_news/press/pr092005.htm).
The Seventh Circuit has discussed the circumstances in which audio tapes introduced as evidence may be released for copying by the media.
In an early decision, the Court found the district court’s refusal to release an audio tape in the midst of a criminal trial was not an abuse of discretion, but stated that its decision did not preclude the news media from seeking post-trial access to the tape. United States v. Edwards, 672 F.2d 1289, 1295 & n. 13 (7th Cir. 1982). Edwards noted that typically, a jury admonition to avoid news media reports is sufficient to avoid undue prejudice from publicity given to admitted evidence; however, “where an extraordinary level of publicity has made exceptionally difficult the selection of a jury and has created a circus atmosphere around the trial . . . , or where the administrative and mechanical difficulties attending inspection and copying would disrupt the progress of the proceeding . . ., denial of access may be warranted. We can state no hard-and-fast rule.” Id. at 1295-96.
United States v. Guzzino, 766 F.2d 302 (7th Cir. 1985) held it was an abuse of discretion in violation of the common law right of access for the district judge to deny CBS access to criminal trial audio tapes solely on the ground that the poor audio quality thereof could result in inaccurate and misleading news coverage. See also United States v. Shannon, 540 F. Supp. 769 (N.D. Ill. 1982) (television network has right to inspect and copy tapes played in open court during sentencing hearing; no demonstration that access would prejudice fair trial rights of either defendants or un-indicted third parties).
The Alabama Rules for Using Videotape Equipment to Record Court Proceedings set out guidelines on how to identify tapes, the costs for preparation, the judge’s trial log, exhibits, and depositions. Ala. R. U. V. E. 3. These rules apply in any trial or other proceeding where videotape equipment is used and take precedent over conflicting statutes and conflicting Alabama rules of procedure. Ala. R. U. V. E 2.
Under Rule 9.4 of the Alabama Rules of Criminal Procedure, the taking of television pictures or other photographs in or of the courtroom during the progress of judicial proceedings, or the radio broadcasting of judicial proceedings, may be permitted as provided in Canon 3(A)(7) and (7B) of the Canons of Judicial Ethics, or as otherwise may be permitted by law or other rule of court. Ala. R. Crim. P. 9.4.
The Alabama Canons of Judicial Ethics require the Supreme Court of Alabama to authorize a plan for the courtroom to ensure the dignity of court proceedings. Ala. Canons Jud. Ethics 3.A (7A) (2019). It also requires the court to obtain written consent from the accused and the prosecutor in a criminal proceeding and all litigants in a civil proceeding before allowing broadcasting by television or radio, recording or taking of photographs. Id. Similarly, Cannon (7B) requires appellate courts to have an authorized plan for the courtroom and obtain written consent from attorneys and parties involved in the hearing or trial. Id. at 3.A (7B).
Circumstances where cameras are permitted
Under the Alabama Canons of Judicial Ethics, a trial judge may authorize the use of cameras in a courtroom during a trial or other judicial hearing. Ala. Canons Jud. Ethics 3.A (7A) (2019). An appellate court may also authorize the use of cameras during a judicial hearing. Id. at 3.A (7B).
Limitations on use of footage
The Alabama Canons of Judicial Ethics requires the trial and appellate judge to stop using cameras “at any time that a witness who is testifying, the parent or guardian of any testifying witness who is a minor, or a juror, party or attorney expressly objects . . . .” Ala. Canons Jud. Ethics 3.A (7A) (c) (2019); see also id. at 3.A (7B) (b). The Order Adopting Courtroom Media Plan states that “no broadcasting, recording or photographing should detract from the dignity of the court proceedings.” Id. at app. 2. The Order also states that no more than four still photographers and two television cameras are permitted in the courtroom, but that all photographers and television stations are allowed to participate by pooling. Id. at 6.
Still cameras are permitted in the courtroom, but no more than four still photographers are permitted at one time. Ala. Canons Jud. Ethics app. 6 (2009). Photographers using still cameras “may sit anywhere in the courtroom designated for use by the public . . . but the Marshal, upon request of a party, attorney, witness or judge, may require them to take photographs only while standing behind the back row of seats.” Id. at 11. However, still cameras that produce distracting noise cannot be used. Id. at 10.
Live-blogging and Tweeting
Although there does not appear to be any Alabama case law specifically on point, members of the press engaged in both live-blogging and live-tweeting during the federal corruption trial of former Birmingham Mayor Larry Langford. See John Archibald’s play-by-play of the Larry Langford sentencing, Birmingham News, http://blog.al.com/archiblog/2010/03/john_archibalds_play-by-play_o.html.
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.
Arkansas Supreme Court Administrative Order No. 6 governs the use of cameras and other technology in the courtroom. The judge has discretion to authorize broadcasting, recording, or photographing in the courtroom and areas immediately adjacent to it during proceedings, recesses, and on other occasions. These restraints appear to be directed at the press. A party or his attorney may make a timely objection to preclude broadcasting, recording, or photographing of the proceedings. The Supreme Court of the United States has said that a state may provide for radio, television, and still photographic coverage of a criminal trial for public broadcast, even if the defendants object. Chandler v. Florida, 449 U.S. 560 (1981).
The Supreme Court of Arkansas has said that willful disobedience of an order not to use cameras could result in automatic reversal or retrial. See Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); see also Ford v. State, 276 Ark. 98, 276 Ark. 98, 633 S.W.2d 3 (1982). In order to receive an automatic reversal on appeal, the moving party would have to show that she or he suffered prejudice resulting from the taping. Smith v. State, 314, Ark. 448, 863 S.W.2d 563, 566 (Ark. 1993).
Administrative Order No. 6 states that the following will not be subject to broadcasting, recording, or photographing: (1) juvenile matters in circuit court; (2) probate and domestic relations matters in circuit court; (3) drug court proceedings; (4) in camera proceedings, unless the court gives consent; (5) jurors, minors without parental or guardian consent, victims in cases involving sexual offenses, undercover police agents or informants. In addition to restraints on the press, the Order restrains individuals from using unauthorized electronic devices to broadcast, record, photograph, email, blog, tweet, text, or post. See Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238, 247-248 (2011).
According to Administrative Order No. 6, the decisions a court makes as to the details of how broadcasting, recording, and photographing will be done are final and not subject to appeal.
The Georgia Supreme Court has long made clear that camera and electronic access is an essential component of Georgia’s constitutional commitment to an open court system. See, e.g., Morris Communications, LLC v. Griffin, 279 Ga. 735 (2005) (reversing a trial court order that denied camera access to criminal trial and stating that “a trial court should bear in mind this State’s policy favoring open judicial proceedings”); Georgia Television Co. v. Napper, 258 Ga. 68 (1988) (trial court erred in denying camera access to a hearing based on the court’s belief that the hearing was not newsworthy and that access would inhibit the Socratic dialogue beneficial to the free exchange of ideas between court and counsel).
Uniform Superior Court Rule 22, which is repeated in the uniform rules of the state’s other classes of courts, generally permits camera and other electronic access upon timely request absent specific findings, after hearing, of countervailing likelihood of harm. See also O.C.G.A. §15-1-10.1. See generally McLaurin v. Ott, 327 Ga. App. 488 (2014) (although the decision whether to allow electronic and photographic coverage of a trial is within the discretion of the trial court, if a trial court denies such coverage, there must be a factual basis in the record that supports the denial) (reversing a denial of law student request to videotape criminal calendar proceedings).
In 2018, the Georgia Supreme Court updated Rule 22 “to reflect developments over the last two decades in recording technology, in the news media, and, most significantly, in recording devices—namely, the smart phones and other mobile computers with recording capabilities that today are routinely carried and used by most people in this state.” The Court added a preamble, stating that, “Open courtrooms are in indispensable element of an effective and respected judicial system. It is the policy of Georgia’s courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media who report on the proceedings to the public.” The Court cautioned, however, that, “This must be done . . . while protecting the legal rights of the participants in the proceedings and ensuring appropriate security and decorum.” Uniform Superior Court Rule 22(A).
Under the updated rule, courtroom spectators, including news media, who seek to record a court proceeding must, as in the past, make a special request of the court for permission to do so, triggering notice requirements and a possible hearing. See Rule 22(F). See also Rule 22(G) (“A properly submitted request for recording should generally be approved . . . .”).
Whether to allow electronic devices to be used by spectators, including news media, in the courtroom for non-recording purposes is up to each trial judge. See Rule 22(C)(3). The rule permits but does not require a judge to “freely” allow such use “when he or she believes [it] would not be disruptive or distracting and is not otherwise contrary to the administration of justice.” The rule provides that when such is allowed, devices “must be silenced and may not be used to make or receive telephone calls or for other audible functions without express permission from the judge.”
The new Rule 22, which was promulgated February 6, 2018, to take effect May 1, 2018, is available at https://www.gasupreme.us/wp-content/uploads/2018/02/USCR_22_Order-FINAL_Feb-6.pdf.
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 “Cameras in the Courtroom” guide explains that the media must fax a request to be a candidate for the media pool covering a Supreme Court argument. In the Court of Appeals, the media must request permission from the three-judge panel to allow equipment in the courtroom. However, appellate oral arguments are webcast live as they occur in the courtroom. Videos of oral arguments may be found here: http://mycourts.in.gov/arguments/. Cameras and recording in the trial courts are prohibited as outlined in Canon 2 of the Code of Judicial Conduct, Rule 2.17. The rule provides:
“Except with prior approval of the Indiana Supreme Court, a judge shall prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
(1) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;
(2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;
(3) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:
(a) the means of recording will not distract participants or impair the dignity of the proceedings;
(b) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;
(c) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
(d) the reproduction will be exhibited only for instructional purposes in educational institutions.”
See also Van Orden v. State, 469 N.E.2d 1153, 1157 (Ind. 1984) (rejecting defendant’s claim “that she was denied a fair and public trial due to the failure of the trial court to televise the proceedings”) (citing Nixon v. Warner Comm’cns, 435 U.S. 589 (1978)).
The Indiana Court of Appeals held that Judicial Rule 2.17, which prohibits broadcasting during court sessions, also prohibits broadcasting of courtroom recordings after the court proceedings have concluded. WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017). The Indiana Court of Appeals also held that Judicial Rule 2.17 does not violate the First Amendment of the United States Constitution as an impermissible prior restraint. Id. at 449.
In another case, the Indiana Court of Appeals held that allowing the press to give live updates during a murder trial through Twitter did not deprive the defendant of due process. Compton v. State, 58 N.E.3d 1006, 1011–12 (Ind. Ct. App. 2016).
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/.
The Mississippi Supreme Court has stated that “prohibiting cameras does restrict the ability of the public to access the proceedings, and . . . the complete exclusion of cameras should be resorted to only after less restrictive measures have been considered and found to be inadequate.” See In re WLBT, Inc., 905 So. 2d 1196, 1199 (Miss. 2005).
The use of photography and video cameras is governed by the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC). Members of the media seeking to use electronic equipment must notify the clerk and court administrator at least 48 hours before the proceedings begin, although the presiding judge can waive or shorten this requirement. MREPC 5. Notification can be done by filing a Camera Coverage Notice, a copy of which is available on the Mississippi judiciary website. Any party can object to electronic coverage by filing a written motion no later than 15 days before the proceedings begin. MREPC 7.
The Mississippi Supreme Court set aside the trial court’s denial of a request to allow television coverage of sentencing proceedings, noting there was neither a constitutional presumption in favor of allowing television coverage of courtroom proceedings nor a constitutional prohibition against it. In re WLBT, Inc., 905 So. 2d 1196, 1198–99 (Miss. 2005). The court stated that prohibiting coverage restricts the public’s ability to access courtroom proceedings, and such exclusion should only be resorted to after less restrictive alternatives have proven inadequate. Id. at 1199. The Supreme Court held the circuit judge failed to provide sufficient reasons as to why allowing television coverage of the proceedings would have a substantial impact on the defendant’s right to a fair trial. Id. at 1200.
Under the MREPC, electronic media coverage is permitted in Mississippi trial and appellate courts, subject to the authority of the presiding justice or judge to (i) control the conduct of the proceedings, (ii) ensure decorum and prevent distraction, and (iii) ensure fair administration of justice in the pending case. MREPC 3(a).
Electronic media equipment can only be moved in or out of the courtroom before judicial proceedings begin, during recess, or at the end of the day. MREPC 4(e) (this does not apply to small, handheld electronic devices). Cameras must be “minimally intrusive”; the equipment is prohibited if it produces distracting light or sound. MREPC 4(a).
No more than one TV camera, radio audio system or still photographer is permitted unless the presiding judge says otherwise. MREPC 4(f). If a pooling arrangement is established, the information must be made available equally to all pool participants free of charge. MREPC 4(f).
No jurors or potential jurors can be shown until they are discharged; camera coverage is also prohibited during the jury selection process. MREPC 4(b). No audio recording is allowed for off-the-record conferences in the courtroom between the court and counsel, between counsel and co-counsel, or between counsel and clients or witnesses. MREPC 4(c).
Coverage of the following witnesses is prohibited: police informants, minors, undercover agents, relocated witnesses, victims and families of victims of sex crimes, and victims of domestic abuse. MREPC 3(d).
Coverage of the following matters is prohibited unless authorized by the presiding judge: divorce; child custody; support; guardianship; conservatorship; commitment; waiver of parental consent to abortion; adoption; delinquency and neglect of minors; determination of paternity; termination of parental rights; domestic abuse; motions to suppress evidence; proceedings involving trade secrets; and in camera proceedings. MREPC 3(c).
Electronic media guidelines also apply to still cameras.
The Mississippi Supreme Court and Court of Appeals broadcast their oral arguments via the Internet.
Supreme Court oral arguments are viewable in real time at: https://courts.ms.gov/appellatecourts/sc/scoa.php.
Court of Appeals oral arguments are viewable in real time at: https://courts.ms.gov/appellatecourts/coa/coaoa.php.
With permission obtained in accordance with the Nevada Supreme Court Rules on Electronic Coverage of Court Proceedings, matters that are open to the public are subject to electronic coverage. Nevada Supreme Court Rule (“S.C.R.”) 230(2) provides:
“[T]here is a presumption that all courtroom proceedings that are open to the public are subject to electronic coverage. A judge shall make particularized findings on the record when determining whether electronic coverage will be allowed at a proceeding, in whole or in part. Specifically, the judge shall consider the following factors:
(a) The impact of coverage upon the right of any party to a fair trial;
(b) The impact of coverage upon the right of privacy of any party or witness;
(c) The impact of coverage upon the safety and well-being of any party, witness or juror;
(d) The likelihood that coverage would distract participants or would detract from the dignity of the proceedings;
(e) The adequacy of the physical facilities of the court for coverage; and
(f) Any other factor affecting the fair administration of justice.”
See also Solid v. Eighth Judicial Dist. Court of State in & for Cty. of Clark, 393 P.3d 666, 672 (Nev. 2017). The rules further define “electronic coverage” to mean “broadcasting, televising, recording or taking photographs by any means, including but not limited to video cameras, still cameras, cellular phones with photographic or recording capabilities or computers. S.C.R. 229(1)(d).
S.C.R. 230(1) requires:
1. News reporters desiring permission to provide electronic coverage of a proceeding in the courtroom shall file a written request with the judge at least 24 hours before the proceeding commences, however, the judge may grant such a request on shorter notice or waive the requirement for a written request. The attorneys of record shall be notified by the court administrator or by the clerk of the court of the filing of any such request by a news reporter. The written order of the judge granting or denying access by a news reporter to a proceeding shall be made a part of the record of the proceedings.
But the Rules on Electronic Coverage of Court Proceedings “do not govern the coverage of a proceeding by a news reporter who is not using a camera or electronic equipment.” S.C.R. 229(2)(a). Further, “[e]xcept as provided by these rules, the use of cameras, cellular phones or other electronic devices to photograph or record courtroom proceedings without the express permission of the judge is prohibited.” S.C.R. 229(2)(b).
The Rules on Electronic Coverage of Court Proceedings set forth the following limitations:
• Limitations (personnel), S.C.R. 237:
“Operation of video or still cameras in the courtroom will be allowed only for news reporters designated by the pool coordinator or by the court pursuant to these rules.”
• Limitations (jury), S.C.R. 238:
“1. Requirements of sequestration of the jury. In any case where a jury has been impanelled, such jury shall not be sequestered solely because of any activity authorized by these guidelines. This rule does not affect the authority of the judge to order sequestration for any other lawful purpose.
2. Photography of jury. Consent of the jury shall not be required. News reporters will not deliberately photograph the jury or individual jurors. However, it is recognized that, because of the physical layout of some courtrooms and the general trial activity in any courtroom, it may be impossible not to photograph some jurors as part of the proceedings. To the extent possible, news reporters shall locate and focus their equipment in such a manner as to minimize photographs of the jury.
3. News reporters shall not deliberately photograph the jury or individual jurors during the pendency of the proceeding. News reporters or news organizations who violate this provision may be excluded from further participation in electronic news coverage authorized in these rules.”
• Limitations (conferences of counsel), S.C.R. 239:
“Camera coverage shall be limited to proceedings open to the public. In order to protect the attorney/client privilege and the right to effective assistance of counsel, news reporters shall not record or broadcast by audio or video transmission the content of any privileged conference, including, but not limited to, conferences occurring between attorneys and their clients, between attorneys, between clients or between or among attorneys, their clients and the judge when the judge calls for a colloquy at the bench.”
• Limitations (consent of parties), S.C.R. 240:
“1. Consent of participants. The consent of participants to coverage is not required. The judge, however, in the exercise of sound discretion, may prohibit the filming or photographing of any participant who does not consent to being filmed or photographed. This is in recognition of the authority reposing in the judge, upon the exercise of sound discretion, to hold certain judicial proceedings, or portions thereof in camera and in recognition of the fact that certain proceedings or portions thereof are made confidential by law. This provision does not apply to jurors during the pendency of the proceeding as they are covered elsewhere in these rules.
2. Consent not to be given for payment. No witness, juror or party shall give consent to coverage for any payment, of any kind or character, either directly or indirectly.”
• Limitations (use of broadcast material), S.C.R. 241:
“1. Video, photography or audio reproductions may only be used for educational or informational purposes, and may not be used for unrelated advertising purposes.
2. Official record. The official court record of any proceeding is the transcript of the original notes of the court reporter or court recorder made in open court. Videos, photographs or audio reproductions made in a court proceeding as a result of these rules shall not be considered as part of the official court record.”
• Limitations (restricted access), S.C.R. 242:
“1. Court discretion. During the conduct of any proceeding at which the print media is ordered by the judge to be excluded, all other types of news reporters shall also be excluded.
2. News reporters shall have no greater rights of access than the public.
3. Audio or visual equipment authorized by these rules must not be operated during a recess in a court proceeding unless otherwise approved by the judge, with notice to counsel.”
There are additional requirements concerning the number of camera persons and still photographers permitted, the use of a single audio system, and placement of equipment in the courtroom. The Rules on Electronic Coverage of Court Proceedings can be found in S.C.R. 229-246.
New Mexico Court Rules provide that the broadcasting, televising, photographing and recording of court proceedings in the Supreme Court, Court of Appeals, district and metropolitan courts of the State of New Mexico are authorized in accordance with the guidelines which contain safeguards to ensure that this type of media coverage shall not detract from the dignity of the court proceedings or otherwise interfere with the achievement of a fair and impartial hearing. Rule 23-107 NMRA.
New Mexico has stated that the common-law right to inspect and copy judicial records encompasses not only documentary and written records but also videotapes, tape recordings and other electronic evidence. Live coverage of proceedings shall not be limited by the objection of counsel or parties, except that the court reserves to the individual courts the right to limit or deny coverage for good cause.
Pursuant to Rule 23-107 NMRA, (1) media coverage in the courts is subject at all times to the authority of the judge or judges to: (a) control the conduct of the proceedings before the court, (b) ensure decorum and prevent distractions, and (c) ensure fair administration of justice in the pending cause; (2) the presiding district judge has sole and plenary discretion to exclude coverage of certain witnesses, including but not limited to the victims of sex crimes and their families, police informants, undercover agents, relocated witnesses and juveniles; and (3) neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed.
In New Mexico, any party may request, or object to, cameras in the courtroom by written motion, which may be supported by affidavits, filed not later than fifteen days prior to trial. Rule 23-107 NMRA. In determining that cameras should not be allowed in the courtroom, a showing of prejudice is required. State v. Hovey, 1987-NMSC-080, ¶ 6, 106 N.M. 300, 303, 742 P.2d 512, 515. Thus, when restrictions on media coverage are sought in criminal cases, evidence must demonstrate that there is substantial likelihood that the presence of cameras will deny defendants a fair trial. If limitation is sought to protect other interests which involve important constitutional rights, a higher test should be required and the proponent of the ban should prove that a serious and imminent threat to some other important interest exists. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 265, 648 P.2d 300, 305 (citing N.M. Const. art. II, § 17; U.S. Const. amends. I, VI).
When still cameras are permitted—and unless otherwise agreed upon by the court—equipment and personnel shall be limited to not more than two still photographers utilizing not more than one still camera. Rule. 23-107 NMRA.
New Mexico courts have not yet spoken directly on the webcasting of trials.
New Mexico courts have not yet spoken directly on the liveblogging and tweeting of trials. Discrete district court rules banning cell phones and laptops in court effectively foreclose such broadcasting. However, the Supreme Court of New Mexico has discussed the propriety of judicial use of social media, ultimately cautioning that “[w]hile we make no bright-line ban prohibiting judicial use of social media . . . ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety.” State v. Thomas, 2016-NMSC-024, ¶ 49, 376 P.3d 184, 198 (noting that judges must adhere to the Code of Judicial Conduct and avoid any appearance of impropriety when using electronic social media). The New Mexico Code of Judicial Conduct sets forth that “[j]udges and judicial candidates are also encouraged to pay extra attention to issues surrounding emerging technology, including those regarding social media, and are urged to exercise extreme caution in its use so as not to violate the Code.” Rule 21-001 NMRA. The Thomas opinion does not address other forms or uses of social media.
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 May 2019, however, the Vermont Supreme Court promulgated 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/promulgated. The new rule 79.2, effective September 3, 2019, replaces the previous rules with a statement making the civil rule applicable to proceedings in the criminal and probate divisions. No change has been effected 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. 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, 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 new rule governs both possession and use of recording and transmitting devices. Rule 79.2(c) broadly provides that a device may be used non-disruptively anywhere in a courthouse. Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a courtroom. The new 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 new rule provides that participants may use devices in the courtroom with some restrictions. The new 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 rule also contains provisions applicable to jurors. Rule 79.2(e) sets limits designed both to protect the decorum and the necessary confidentiality of certain proceedings. The new rule allows limits on use, but contains a presumption in favor of media access. 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 rule abrogates current Administrative Directive No. 28, which concerns use of electronic devices in a courtroom.
See Wis. Supreme Court Rule (“SCR”) 61.03:
(1) Except as otherwise provided in sub. (2), 3 television cameras, each operated by one person, and 3 still photographers, each using not more than two cameras, are authorized in any court proceeding. Priority consideration shall be extended to one the three cameras to televise an entire proceeding from beginning to end.
(2) The trial judge may authorize additional cameras or persons at the request of the media coordinator or may limit the number of cameras if circumstances permit the increase or require the limitation.
(3) One audio system for radio broadcast purposes is authorized in any court proceeding.Audio pick up for all media purposes shall be made through any existing audio system in the court facility, if practical. If no suitable audio system exists in the court facility, microphones and related wiring shall be as unobtrusive as possible.
See SCR 61.02(1):
The Wisconsin freedom of information council shall designate for each judicial administrative district a coordinator who shall work with the chief judge of the judicial administrative district and the trial judge in a court proceeding in implementing this chapter.
See SCR 61.02(2):
If possible, the trial judge shall be given notice, at least 3 days in advance, of the intention of the media to bring cameras or recording equipment into the courtroom. In the discretion of the trial judge, this notice rule may be waived if cause for the waiver is demonstrated.
See SCR 61.11:
(1) A trial judge may for cause prohibit the audio recording and the photographing of a participant with a film, videotape or still camera on the judge’s own motion or on the request of a participant in a court proceeding.
(2) Individual jurors shall not be photographed, except in instances in which a juror or jurors consent.
See also State v. Wakeman, 2008 WI App 148, 314 Wis. 2d 260, 757 N.W.2d 850 (unpublished) (Defendant presented no evidence of cause to prohibit cameras in courtroom); State v. D’Acquisto, 121 Wis. 2d 697, 359 N.W.2d 181 (1984) (unpublished) (no right to photograph jurors).