A Newer Look at Cameras in the Courts

GUEST: Mark C. Zauderer, Esq.
AIR DATE: 04/10/10

I’m Richard Heffner, your host on The Open Mind.

And I’ve been quite intrigued lately – disturbed, too, I’ll admit – by a seeming rekindling of interest in the matter of cameras in our courts — more importantly, to be sure, the matter of snippets of court proceedings broadcast into our homes at journalists’ own discretion, thus creating, if you will, new courts of public opinion largely devoid of the time-honored procedural protections of the American legal system.

“Rekindling of interest in cameras in the courts” well, that may in fact be the wrong way to put it.

For the masters of the media have never tired of seeking out in juicy, sensational trials ever new grist for their entertainment mills.

Surely California’s O.J. Simpson televised circus proved how extraordinarily attractive other people’s courtroom troubles can be for American television audiences. Never mind justice or order in the courts. Just look at the ratings!

Of course, presumably speaking for other Supreme Court Justices, too, Justice Scalia said in 2005 that “We don’t want to become entertainment”, adding, “I think there’s something sick about making entertainment out of other people’s legal problems.” Sometime ago as well, the Judicial Conference of the United States had urged the Federal Judiciary to keep cameras out of its courtrooms.

But in the West recently Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit opened up the issue of “cameras in the courts” once again, urging what the New York Times quotes him describing as “an experiment … designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”

And here in the East I find my distinguished attorney friend and good counselor Mark Zauderer, former President of the Federal Bar Council, eager to discuss the same issue. Indeed, a decade ago my guest was a key member of the New York State Bar Association’s Special Committee on Cameras in the Courtroom.

Well, in the service of full disclosure, I should point out that two decades ago I served as Chair of the New York State Judiciary’s Committee on Cameras In The Courts and in that role I dutifully reported to the State Legislature my Committee’s majority as urging that “legislation be enacted permitting cameras in New York’s Courts” … as governed by certain specific rules.

But as Chair, I did not feel constrained to be or act like an intellectual eunuch … and about cameras in the courts, I said for myself: “I don’t like them. I don’t believe that a free press requires them. And I don’t believe that in our best understanding of the phrase, due process can over time truly tolerate them”.

So, with that personal article of faith right out on the table — plus the admission that I’m no lawyer — let me turn to attorney Mark Zauderer to make up for my judgment … or lack of it. Mark, you’re on. I know you were for cameras.

ZAUDERER: “For” with certain caveats, which we’ll talk about. But let me comment on what you, you just said. You don’t have to be a lawyer to either appreciate the importance of this issue or understand some of the complexities of it.

Because this involves some of the most important principles, sometimes which are in, in conflict with one another of our society, our legal system and the, the … and popular democracy.

So let me try to untangle some of them for you to try to give some context to, to what, at least, the issues are now as we see them.

I think we have to go back historically and understand that the concept of a public trial is deep in our, in our collective bones.

In fact in all the … the Federal Constitution and the Constitution of the States, the right to a public trial was, was announced and commanded as something that the public wanted. Particularly with the experience that we had had with dictatorships and with what had happened in England.

And in fact if … it’s very interesting. If you go in New England, for example, nearby and you go through some of the old villages and some of the 19th century buildings …the old courthouses, they are always provided with benches for the public. And we see that in, in, in real life as though it were 150 years ago.

Because this was important to the community and it was important for the fairness of the process for the litigants and for the public to understand and appreciate the judicial system that they had created. And important for the integrity of the system because it would inspire public confidence.

Now, when we come to what technology so often does to us which is to change the whole picture, we have a very different issue. Which is, which is built upon our … these original concepts … that that what do we do with photographs, with television?

Now just as there is a Constitutional right to a public trial and the press has a right to be present and through it, the public to be informed about what’s going on. There is no such comparable right of the media, or the public to have television in courtrooms.

And yet we are now in an era in which understandably we have a fascination with the media, we get our information through the media and I think it cannot be contradicted that the media is a very, very important source of information because people cannot all be present at a trial.

Somebody in New York if certainly interested in a trial, particularly a criminal case that goes on in California, which may have implications for society at large and they simply cannot be in the court.

So, without considering other problems, certainly television has the potential to provide an educational function, an informational function and one which gives increased credibility to the process.

Now, I know where you stand and your introduction made it pretty clear. My view may be slightly different, but only slightly different.

I and some others who have had the occasional look at this issue are of the view that this is, this is the cat out of the bag. And not necessarily a bad thing.

We rely on television as I said and we rely on the media for information. And most of the objections to this had been based on speculation … understandable speculation that having a television camera in a courtroom is going to change the behavior of the parties, change the behavior of the judge and influence negatively witnesses who are essential to the trial process who may either be intimidated or conversely may want to perform for the camera.

And much of the original opposition over the last 40 or 50 years, including a case that went to the US Supreme Court … was based on the speculation that TV cameras would be intrusive and would alter, alter the behavior of the important participants in the system.

Yet over the past 20 years … now more than 30 … 33, 34 states in some form or another are either permitting as a matter of right or under certain conditions, under the control of the trial judge … to have cameras in the courtroom.

And it is a fact of life that it is what we now see in the, in the judicial system. We’ve seen this with the … with Court TV which was one of the first television stations to make a commercial matter of covering these courts.

Now you allude to one issue which is still a serious problem. And that is by nature of their work, the media will pick sound bites from the process. Sound bites from a trial. Which tend to distort the trial. A media source will naturally pick the most interesting, the most dramatic. They’ll focus on someone who’s undergoing a display of emotion. And, of course, that may not present a fair and balanced view of the entire process.

In fact that was recognized by the Special Committee on Cameras in the Courts in 2001 conducted under the auspices of the State Bar and we proposed a solution which in retrospect I don’t think is very practical, which was require media who cover these events to file an unedited and full videotape with the office of court administration of the entire trial, so for study purposes it could be seen whether or not the cases were being fairly presented.

Many feel, and feel today that’s just not the role of a court system or legislation to dictate to the media just what they should do once they’re provided with coverage.

Now, we talk about New York, which I think is a very interesting prototype of the way this situation has developed although we are not in line with most states.

We had from the late nineteen eighties until the late nineteen nineties four successive experiments in which cameras were permitted by legislation under the control of the trial judge to be allowed in the court.

And each of those Bills, each of those pieces of legislation had a “sunset provision” and would expire … a new one would be, would be enacted and right now we have none. We’ve not had one since 1997.

So what we have in New York is the governing statute which is called Section 52 of the New York Civil Rights Law which expressly prohibits photographing of proceedings in which testimony is taken, in which there are witnesses.

Now, in fact, I’m learning that throughout the State, some individual judges are interpreting that statute to permit them to allow television coverage of other parts of the proceedings other than the testimony … opening statements in the trial, for example. Closing statements because they would not be considered proceedings in which testimony was being given.

Whether or not that practice will continue or a court will, will rule that it can’t be done is something to be determined. But what we do have in New York is a bedrock principle which the New York Court of Appeals established in 2005 that there is no Constitutional right on the part of the media to be, to be televising trials.

The access that is afforded is granted, but it’s granted through the right of a media person or any other person to be present at the trial.

HEFFNER: Interesting that this is the last point that you make …

ZAUDERER: Sure.

HEFFNER: … that the Court of Appeals in New York … it’s highest court … has so ruled. In our experiment and ours was the first experiment, the media people would not even send us the material that appeared on the air because they said “hands off”, they just wanted to claim that this on-the-air material, even a snippet of the most salacious moment in a trial, increased public understanding of the court system.

Would not submit anything because it was a violation of their First Amendment rights. Now, where do you think this is going to go, Mark?

ZAUDERER: I think it’s going to go along the path that it’s going now and that we’re never going to be able to control the, the submission to the public of snippets in the discretion of the media, any more than we do with tabloids.

I mean we can look at the newspapers that are on the stand every day and look at the coverage of a salacious case and there are four or five of them as you turn … you know, the first five or six pages of the newspaper.

Does anyone think that this is a full, complete and accurate coverage of the proceedings? I know as a practicing lawyer I have some times picked up the morning newspaper, read about a case that I’m involved in and it’s almost as though it’s a different case. Because they’re not seeing the whole picture.

HEFFNER: What’s the principal on which you would base saying, “Well, the press, the printed press does it … let the television press do it now, too.”

ZAUDERER: I think we have to step back from trying to regulate what the press does.

I think we have to … in terms of what they cover and what they don’t cover.

HEFFNER: But you’ve already said, it’s not a matter of what they do or don’t do. It’s a matter of saying that there’s a Constitutional right for them to be in court.

ZAUDERER: There, there is no … there is a Constitutional right for them to be in court and report as they wish.

There’s no Constitutional right for them to televise and to present snippets. But I think for policy reasons, it’s important that we not insist on anything but the unfettered right of the press to decide what they publish.

Now that’s not to say that that shouldn’t be balanced by some very, very important restrictions and caveats in television coverage. And we suggested them in our report.

And I think they’re critical. And that is that the judge in every individual case have full discretion to regulate what the media does by way of cameras.

HEFFNER: Do you think the media will accept that?

ZAUDERER: I don’t …

HEFFNER: That presumption.

ZAUDERER: They will never accept it willingly. They will be dragged unwillingly, you know, to the, to the court house or rather to the state Senate and Assembly in Albany. They will never accept …

HEFFNER: But you don’t want to drag the press.

ZAUDERER: Well, I think they, they, they … they will have to suffer what they will regard as indignities by some restrictions if they are allowed access to televise court proceeding. Let me give you some examples …

HEFFNER: Yeah.

ZAUDERER: … if I may of some of the problems. I think the argument’s been made with legitimacy that witnesses may be intimidated in criminal cases by the fact that they’re on television.

This was a key subject in our, in our hearings on, on our committee. And what’s interesting, there was no ideological fault line between prosecutors and defense lawyers on that issue.

We heard, for example, from Federal prosecutors. A particular Federal prosecutor who prosecuted gang cases in the US Attorney’s office.

They rely very heavily on the cooperation of witnesses in the community to make the case against the drug dealer defendants and the alleged murders. The retort to that was “Well, we can now with technology digitize out the face, make a mosaic, so you can’t recognize the person”.

Of course that doesn’t work because the people for whom the person is most concerned, those in the community will know who the witness is.

We’ve been concerned about the effect on witnesses … on the judge. Just as there may be …and sometimes it’s speculative … that the parties will perform differently for the camera. The flip side of that is … they’ll be on very good behavior. And the public will get an opportunity to see how well the judicial system can work, which can present a much better picture of its operation than may be available in, in the tabloids.

Let me give you an example of a case that’s been widely touted as demonstrating the value of TV cameras. And I’m not saying whether I agree or disagree with it, because I don’t think it’s determinative … but it is another chip on this side of the scale.

You remember the Amadou Diallo case …

HEFFNER: MmmHmm.

ZAUDERER: … which was being tried around the time we were doing our, our hearings and report.

Now that was a terrible case. Poor man was shot in his doorway by police who were doing an investigation in the neighborhood. Somebody thought that when he was in his doorway he was pulling a gun … he had pulled something out of his pocket. And yelled “Gun” or something to that effect and many police officers starting shooting. And the man was killed.

The case was tried. The pro …there was an indictment. And because of the intense publicity in New York, it was moved to Albany. The case was then tried with television camera present.

Many people saw that trial, it was a very, very, very intensely watched trial. And as reported and apparently accepted by many, the police officers … who many were outraged at because of the shooting of an innocent man … who were watched on the TV … televised trial …some of whom broke down in tears. And ultimately there was a Not Guilty verdict.

The, the verdict was accepted in the community and there was no … there were no demonstrations … such as occurred in the Rodney, Rodney King case in California.

And many who have observed it, have said, and I think quite accurately that the ability of the public to see the actual trial in operation. To see the witnesses. To see the defendants who testified … created a great deal of credibility for what had to be a heartrending verdict for many in the community where the police officers were acquitted.

So, also, to answer the critics who, who say that, you know, we have a circus like atmosphere in the trial. Well, experience over the last 20, 30 years has not borne that out.

Ahh, for one thing cameras themselves have advanced with technology. The wires, the whirring motors that were once associated with cameras no longer exist. We all know how small and quiet a television camera can be.

Many people in the system report that after a while, they’ve forgotten entirely that the cameras are there.

So they are far less intrusive. At a time when we are much more used to seeing television cameras. You know we see them all over. We have them in our homes. They’re in home security systems.

So it’s sort of part of the mosaic, it’s part of the background, part of the wallpaper we have today. Which ameliorates the problem to a great extent.

HEFFNER: Let me ask you what you think the principal reason would be for running whatever risks which you may deny … others affirm … whatever risks there are …what would be the principal reason for saying “Nevertheless, cameras … maybe not have, of a Constitutional right, but of a right, should be in the courts”.

ZAUDERER: Because just as the public should have available to it, the availability to watch a trial and have a public event … because television is the way information is communicated today, it is an enhancement, rather than a diminution of the public’s ability to see what goes on in the court and therefore enhances the integrity of this system and the legitimacy of the decisions made.

HEFFNER: You say, the public seeing what goes on in the court … what does the public see? Do you know what the public sees? Does it see the trial that you applauded when you thought that a company, a company, for-profit company would, as it said it would, show trials in their entirety. And then didn’t?

ZAUDERER: Yes.

HEFFNER: What is it that you want to be seen? Trials in their entirety to educate the public?

ZAUDERER: And as, as … I would not enforce as a condition of access the requirement that the entire trial be shown.

HEFFNER: Would you, would you demand anything at all?

ZAUDERER: I don’t think we would. Or can.

HEFFNER: Why is that?

ZAUDERER: Unfortunately …

HEFFNER: What … excuse me … when you say …

ZAUDERER: Yeah?

HEFFNER: “Or can” … there is no Constitutional right for cameras to be in the courtroom and to carry information on television. You pointed that out yourself.

ZAUDERER: Yes. But if you granted access and micromanaged or prescribed rules for what can be shown or what can’t be shown. Now you get into a difficult area of interference with the press.

In other words, you can give with one hand and take away with the other. You can’t give … you, you can … it’s, it’s bad policy, as a minimum, to, to give a right of access and then seek to regulate the content.

HEFFNER: But there is no right of …

ZAUDERER: Which is what you’re doing.

HEFFNER: … of access. You’re loaning it to the press. And are, are you going to be happy about this new court of public opinion that sits in front of the television set, watches what the broadcasters chose to broadcast of a case and comes up with the conviction that this person is guilty, that person is not.

ZAUDERER: No. If I had my way I would say “It’s the entire trial, or nothing.”

HEFFNER: But then why not have your way?

ZAUDERER: Because I don’t believe I can impose my way, or should impose my way on the public or on the commercial media who have the incentive broadcast that which they want to broadcast.

And by the way, let me just add to that. I think I’m responding to your question. In general, the media which has a commercial interest in this and this is not an altruistic interest …

HEFFNER: What other interest would it have?

ZAUDERER: … of course, and we recognize that. Are going to broadcast the parts that are most interesting. Now they may omit certain parts, but they’re not going to want to spend 20 or 30 minutes of air time airing some obscure legal, and uninteresting legal argument over a piece of evidence.

HEFFNER: Then how educational … how, how educational will this process be?

ZAUDERER: Because “some” is better than “nothing”. And I think that the, the, the access for one thing is not always limited to one media source.

You know, different media may cover different aspects of it. When there appear on television images or parts of a trial, they’re often commented upon by commentators. Commentators have the ability to discuss what was seen, what may not have been seen. Other media may have covered different aspects of it.

So I, so I think that the … while it is unfortunate that the media cannot have … in fact, would not watch an entire trial … very few people would. I think that on balance, it’s much better to have the access, even if it’s burdened with the unilateral choices that, that media outlets make.

HEFFNER: And if it happens, Mark, and I’m your client …

ZAUDERER: Yes?

HEFFNER: … are you going to feel very happy about a snippet of me being asked the most difficult questions by the prosecutor, perhaps?

ZAUDERER: Well … might depend how you answer it. Might be happy with it. I might be worried about it. But it … just like many other things one has to adapt to in a courtroom … you would be counseled how to adapt to it.

Just as you would have to be counseled as to what to wear. What the jury’s going see. Because the people who are really making the decision in your case are the jurors … not the people who later watch the television show.

HEFFNER: And … but that, of course, is the point that many of us were making … that there is a new jury …

ZAUDERER: Yes.

HEFFNER: … a jury of public opinion. And you can’t tell me for a minute …

ZAUDERER: Right.

HEFFNER: … that that is what our Founders meant by trial by jury.

ZAUDERER: That is true. And if trial judges … if they’re going to allow in their discretion and under conditions they impose television coverage of a high profile trial … because those are the ones where it’s an issue. No one is going to watch … and they’re not going to film cases that are of no interest. The jury has to be monitored and instructed not to watch television coverage. As they are today. Just as they could pick up … ahmm, a tabloid on the streets of New York City and see on the front page … you know … a headline which will tell them the whole story.

HEFFNER: Would you give the judge the right, the power to say “No coverage of this trial? This particular trial.”

ZAUDERER: Yes. Yes. And, and the judge, subject to appeal rights, but the broad discretion of the judge to do it, with stated reasons.

And the proposed legislation that we came up with, and others as well, who have proposed legislation have done just that.

You have to allow the trial judge to control it. Now I don’t think a judge … if the judge had a record of denying TV coverage as a matter of course in every trial. I don’t think that would hold up.

But there would have to be in the particular case stated reasons. And I think that … and we suggest in our Report, there were specified factors which the judge is instructed to take into account … and if you were to write a decision denying coverage, he would comment on some or all of those factors and how he or she weighed those factors in the decision.

It would take into account, but not be controlled by the consent of the parties … the sensitivity of the witnesses, the nature of the, of the crime, whether it’s sensational or not, whether TV coverage would be … in some cases … so prejudicial that it could render the trial unfair which is the ultimate test.

Because nobody, nobody would propose to take away from the trial judge the right to determine in a particular case that coverage or any particular kind of coverage would deprive the defendant of a right to a fair trial or any of the parties involved in the case. That is the paramount concern, the one that we are … need to be concerned about.

HEFFNER: Mark Zauderer, this, to me, is an extraordinarily interesting and important issue. And you’ve got to come back because we’ve got to fight this out.

ZAUDERER: Okay.

HEFFNER: But thanks so much for joining me today …

ZAUDERER: Thank you …

HEFFNER: … on The Open Mind. And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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