Florence Kelley, Robert Swezey, Telford Taylor

Television in the Courtroom

VTR Date: October 12, 1958

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THE OPEN MIND
October 12, 1958
NBC Television

Moderator: Richard D. Heffner
Guests: Robert Swezey, Florence Kelley, Telford Taylor

ANNOUNCER: THE OPEN MIND, free to examine, to question, to disagree. Our subject today, Television and the Molding of Opinion.” Your host on The Open Mind is Richard D. Heffner, historian, teacher, and author of A Documentary History of the United States.

HEFFNER: Canon 35 of the Judiciary Ethics of the American Bar Association essentially prohibits the use of television…have a right to be in the courtroom, and should be there….We are here to discuss this question today with three distinguished lawyers who have a great deal to say about it. Let me introduce you. My first guest is Mr. Robert Swezey who is Chairman of the Freedom of Information Committee of the National Association of Broadcasters and Vice President and General Manager of the Station WDSU in New Orleans. My second guest is Miss Florence Kelley who is attorney in charge of the Criminal Courts Division of the Legal Society here in New York. My third guest is Telford Taylor, attorney, and former General Counsel of the Federal Communications Commission. I think I’d like to ask you, Mr. Taylor, the first question and ask you what I suppose is on the minds of a great many people, and that is whether despite the fact that in Colorado and Oklahoma recently the high courts have permitted the use of TV in the courtroom whether you find that there might be some conflict between a defendants’ right to a fair trial and the presence of TV in the courtroom?

TAYLOR: Well I do find a problem there, Mr. Heffner, yes. Could I say first I don’t think Oklahoma did admit TV to the courtroom? What they did do was say that if you allowed pictures to be taken during a recess that it itself didn’t prevent…but there was no simultaneous televising of courtroom proceeds in that case, and it is that which gives me pause. There is to be in with, the problem of machinery and equipment. Now it is perfectly true that with care and expense, television equipment can be concealed and it can be made very unobtrusive. Even if it is done there remains these problems that the purpose of a public trial is not to disseminate information about the trial as widely as possible but to make sure that these are friends of the accused parties there, representatives of the public, so as to be sure that justice procedures. The courts have not found it necessary to hold trials in big arenas for that purpose. A very limited audience is sufficient for that purpose and as soon as you get enormous audiences either physically present as in Yankee Stadium or Madison Square Garden, or as it should be in television with millions of pairs of eyes watching, it seems to me you begin to build up pressures on the proceeds, on the judge, on the parties, on the witnesses, that may have a very bad effect on the doling of justice, and that was after all the important purpose of the trial.

HEFFNER: Mr. Swezey, how do you react to this?

SWEZEY: There are so many things to react to. Let us face them in order. In the first place, Mr. Taylor, I think there isn’t…we can use it in the courtroom and in a most unobstrusive manner. We have demonstrated this under actual trial conditions in several courts, and the courts have agreed at least in Texas and in Oklahoma and Colorado, that this can and will be done. We have a code of ethics, the Broadcaster’s Code of Ethics, which has a section covering court trials, and part of that is an assurance that we will use equipment, the best equipment and use it in an unobtrusive manner. Now I would go this far with you: If we don’t use good equipment and if in any way we are obtrusive that is to the point that we would interfere with an orderly procedure in the courtroom I say we shouldn’t be there.

HEFFNER: Miss Kelley?

KELLEY: Well I may be off the point on this but my mind keeps going to the defendant himself, and I suppose that’s from the criminal law process because I am a defense lawyer and have…so that my primary jumping-off point is thinking of how any of this would affect what I consider the rights of the defendant, not only to a fair trial but to generally a fair judicial process in the criminal area because it is very true that the defendant may decide to plead guilty rather than go to trial. Well the surrounding circumstances in which he pleads guilty seems to me too should be a fair one. Now the criminal courts in the main are open to the public. There are very few courts that are actually closed to the public entirely and I think that it’s….that probably makes for a better process, that they’re open, and open to criticism, open to view.

TAYLOR: Of course they have to be under the Constitution.

KELLEY: Yes.

SWEZEY: All we’re doing is extending the courtroom to the full public…for the public to be there. You say it’s perfectly all right for some…Where do we draw the line? Does a defendant get a worse trial in a courtroom that will seat a thousand people than one which will seat twenty?

KELLEY: Sure, absolutely.

SWEZEY: Is he more disturbed?

KELLEY: He may be more disturbed.

SWEZEY: Are you a psychologist?

KELLEY: No, I’m not.

SWEZEY: How do you know what the pressure is, Miss Kelley?

KELLEY: …I have seen certain things happen in cases where there was heavy press coverage that I don’t think ever happened in courts where for one reason or another the public wasn’t sufficiently interested or the press wasn’t sufficiently interested so there wasn’t that kind of press coverage.

SWEZEY: But the coverage from the press is already there so what have we added?

KELLEY: You asked me if I was a psychologist and I said no and you said what did I base my position on and I say…my position on the fact to a certain degree I think less coverage will give me some experience so I would have a right to make this point.

TAYLOR: After all, one doesn’t have to be a psychologist to speak from the basis of history and historical experience from all this. Justices have accumulated some experience with how trials are conducted and they thought it wise to do this in Yankee Stadium or Madison Square Garden, they might have done it in the vast because there have been plenty of judicial proceedings which interest was very wide…I would certainly agree that the Constitution covers freedom of TV and…just as with press. There’s not doubt about that. But the fact that they’re entitled to equal Constitutional rights doesn’t mean that they’re identical medium. They have very different features and qualities. Television has an immediate and wide scale impact. I mean the idea of many people looking at a…it’s actually in process in entirely different from the effect, psychological and emotion…Then, furthermore, the main purpose of the newspaper is news. News is only part of the purpose of the television medium. It is a far more inflexible medium in terms of meeting shifts-of time schedule and such than the….is because it has many other things to do besides report the news—and properly.

HEFFNER: Mr. Swezey?

SWEZEY: Miss Kelley, did you want to add anything to that?

KELLEY: I want to bring up another point so if you are going to answer maybe you had better go ahead.

HEFFNER: I’m going to ask a question of Mr. Swezey, one that’s very simple. You’re a lawyer, are you not?

SWEZEY: I’m a renegade lawyer.

HEFFNER: Renegade lawyer. And there are a good many renegade lawyers, you’re one of them…do you want TV brought into the courtroom? No one answered this one yet. What is the purpose?

SWEZEY: Hell, more and more it seems to me that we’re taking over many of the functions of the newspaper. Mr. Taylor says we are a different medium—of course we are—but we’re developing a tremendous faculty in news coverage. In my little station in New Orleans, for example, we have a staff of twelve news people including four cameramen. And we cover locally everything that goes on in the city eventually.

KELLEY: Why do you say a job from the public? Realistically, I don’t see how a trial could be telecast. I’m not talking about the equipment. I grant you, I assure you that I will accept that you have all kinds of wonderful equipment that no one could see and that wouldn’t cause any sound or anything like that. However, a trial is actually until conviction, say, an entity. To heal, or see on the television screen testimony of one witness or part of the testimony of one witness can only be a part of that trial. What is it that the people would get from this?

SWEZEY: They’d get a very true picture of a part of the trial.

KELLEY: If they couldn’t see the whole trial—

SWEZEY: You’d be in exactly the same position as the newspapers are in the sense that our coverage has to be partial in the sense of being less than whole. I mean the newspaper can’t print—could print the record but it would be so dull.

TAYLOR: If I can interject, it seems to me verbatim coverage of part of the trial is not the same as descriptive coverage of the whole trial. Verbatim coverage of part of the trial is kicking out a segment of it. Now I am sure that if television set about to cover a trial, the proprietors of the station would do their very best to do a fair job on it, but it simply is not equipped to respond as rapidly to perhaps the parties want…conferences in chambers. Long legal arguments on points of views, things which don’t have public interest.

SWEZEY: And which we wouldn’t continue to cover.

TAYLOR: You wouldn’t want to cover. Stations like to have advertisers on too with commercial programs don’t they? Otherwise they’d have a hard time getting along and it isn’t easy to jump on the front page in television as it is in news. That’s what I’m trying to say. It cannot respond as rapidly to these things.

SWEZEY: Looking at the other side for a moment, Mr. Taylor, isn’t it better to have the full pictures than somebody’s remembered account of something that happened that might be again be rewritten?

TAYLOR: I think that’s an overstatement.

SWEZEY: It would at least give the actual picture. It wouldn’t be the whole story, no, but there’s no reason…we have also voices, you know, we can talk. There’s no reason why we can’t have a complete summary of what happened during the day and say, for example, this is a highlight.

HEFFNER: Could I raise this question? A few months ago, Miss Kelley will remember, she was on the program, we did a show on our courts and a free press. The question came up whether there was any conflict between the right to a free press and the right to a fair trial and what is being said here, it seems to me is, well, if the press does it why shouldn’t television? But if there is an implication that television can do some damage possibly to the defendant’s right to a fair trial, this doesn’t seem to be quite adequate because the answer can be carried out to the notion that the press can do damage to defendant’s right to a fair trial. I wonder whether as a lawyer you feel that the defendant’s right to a fair trial in any way be diminished by the use of television in the courtroom.

SWEZEY: It might possibly, yes. Although that again is a psychological question completely. It depends, I would assume, on the mental complexes of the person.

KELLEY: Wait a minute! I can think of witnesses that you might be able to induce to appear in a courtroom to testify on behalf of a defendant, perhaps, who himself had been in trouble at some time, and he will have to admit if he is cross examined as to whether he himself has a record. He is willing to do that but I think on television camera he would not be willing to, and I think thereby that the defendant would lose that witness or whatever he could be to him…

TAYLOR: It is not just the pressure on the defendant, in other words, it is the people involved in the trial: witnesses, jurors.

KELLEY: Sure. Jurors I think is a very important area, prospective jurors.

HEFFNER: Prospective jurors? Why? You must have an answer there.

SWEZEY: Well I don’t think that is nearly as important a point. But our position has always been, Miss Kelley, that the judge is really the captain of the ship. I think he should be in a position—or we think he should be—to say when television and televising might interfere with an orderly procedure or actually cause some miscarriage of justice.

KELLEY: The judge would never know about the case I am talking about. This could come in preparation of trial as to whether I could get a certain witness or not.

SWEZEY: We can go in and out of camera so easily it isn’t funny.

KELLEY: You don’t follow my point. I am talking about a prospective—

SWEZEY: He assumes he is going to be televised.

KELLEY: Who may be, who possibly may be, that would be enough for him to say no, I won’t come down.

HEFFNER: Well I wonder about this matter. Some time ago the Kefeuver Committee, and after the Yefauver Committee proceedings had been televised. This discussion between Halley, Marquis Childs, Jack Gould, and Judge Rivkin here in New York, resulted at one point in Judge Rivkin saying the court is not an educational institution but a place of business. The question is will television bring a fairer trial? I would not give a minute’s thought to the right to cover that trial… Is there a right to this knowledge that we must defend?

SWEZER: I would think so. You are worried always about the guilty defendant or the guilty witness.

KELLEY: Or the possibly innocent ones.

SWEZEY: If I were an innocent defendant believe me I would be like Coleridge’s wedding guest. I would want everybody to know my innocence.

TAYLOR: That’s you.

SWEZEY: I am no psychologist.

TAYLOR: Individual feelings about this are not the important thing.
KELLEY: There are even some defendants I think would rather plead guilty to something they have not done than go through a trial they thought was going to be televised.

SWEZEY: I can’t believe this.

TAYLOR: I can readily believe it, Miss Kelley.

KELLEY: Oh yes sir.

TAYLOR: This is one of the reasons I think why people are worried about the prospects. Could I make one observation in response to what you said, Mr. Heffner? The critical question here is whether television will bring added dangers to the process of fair trial. You said the press may. That is perfectly true, and judges have been wrestling for a long time how to best handle press coverage of trials. There is an importance having the press there just as having the public there but at times reporting is too colorful, too immediate. We are always having troubles with that. The Hauptman trial was a good example of that.

SWEZEY: That is what started—

TAYLOR: Yes. When we come to television it may be many trials could be held on television without damage. The trouble is the risk that in a case or two it may not work well. To use an illustration, I remember reading in the paper this week about the gentleman who landed his airplane on the corner of Amsterdam Avenue and 187th Street, and by a combination of luck and skill he landed it safely and nobody was hurt; but this does not mean this is a very good place to land airplanes even if he had done it before. There is danger in certain cases that will work out badly because of the pressures and added publicity that comes from immediate viewing by millions. The hazard is not worth the gain.

SWEZEY: Isn’t that like saying because certain people can’t handle automobiles we ought to ban automobiles? You are just saying there might be some danger in some of the cases of some slight injustices.

TAYLOR: We will stick to automobiles, and what I am really saying is the fact you or I may violate the speed limit 99 times out of a hundred and get away with it; it’s an argument against speed limits. There are situations where the one chance in a hundred is awfully important and the doing of justice is just such a case.

SWEZEY: All we have here really is improved medium of communication. I think a few years from now this thing will all be completely accepted. I do not think there is any reason why it shall not be.

TAYLOR: I would like to find some common ground with you now to this extent; it seems to me if the precautions about machinery and devices are taken so that televising is unobtrusive the idea of making a visual record of the trial is a very good one.

HEFFNER: Why?

TAYLOR: Because it is a more complete record than a written one. It is not necessarily altogether true because the television camera has one eye and only one.

HEFFNER: I would love to stop the program right now and ask our director to come down. When he is looking at his monitors and deciding which camera to punch up he as to select, choose, and pick; and that is why when you talked before, Mr. Swezey, about this full picture, I had the feeling our other guests sort of went alone with you.

KELLEY: I was questioning what the full picture was going to be.

SWEZEY: The complete picture of any second.

KELLEY: No, it is not. If you have a camera on the witness you do not have it on the judge and on the jury.

SWEZEY: But how would you compare it with the newspaper story which comes first from the scribbled notes of the reporter?

KELLY: But he saw with his own eye the whole courtroom, which the camera may not.

SWEZEY: No, he isn’t looking everywhere. He doesn’t have time.

HEFFNER: Let us put it this way. A moment ago I scratched my head and I literally looked over at the monitor and I wondered whether Mr. Miller had the picture on the screen. Maybe he didn’t see it. Maybe he did and said all right, we won’t do this to Heffner. We will take another picture and not show him scratching his head. This is the director’s decision and in the courtroom the same thing is going to be true. There is still another question. I wondered whether sometime ago it was with you that Horris Ernst was debating.

TAYLOR: I think it was Justin Miller.

HEFFNER: It was Justin Miller. When he…it was before a gathering and there was considerable opinion amongst broadcasters there whether there should be television in the courtroom, and he said, “Well, I know statistically a good proportion of you gentleman have been in the divorce courts and I would like to know how many of you really would have liked the cameras in on the trail procedure in each instance?” And I think this may be one of the most basic questions, who decides, just as in the press, who decides hat’s to be printed and what is to be seen? The judge, the television industry?

SWEZEY: You see, there is no distinction between the press and the broadcaster, it seems to me. Each one would have the same editorial responsibility to select the news that he thought was worth printing. And when you can draw a distinction between television an the press, you see the whole basis of argument is that we must be admitted.

HEFFNER: Yes, but we are involved now in a series of programs—this is one of them—on the impact of television on American life, and one of the first points that was made in our program is that possibly this is the massest of the mass media that possibly television has added responsibilities because it…so reflect again and again and again. It is like standing and looking in a succession of mirrors in which I guess if you look long enough you think there might be fifty people standing there, and whether you don’t intensify what goes on in the press by putting these things on television. Would you make no distinction?

SWEZEY: I am just wondering whether you can over-intensify the truth? I mean this is what is happening and we are giving the public the picture of what is happening.

TAYLOR: I think you are also far from the truth. Simply because there is a visual picture you are not getting the whole truth. You are getting a different kind of truth than you get from the written word but not the complete truth in either case.

SWEZEY: At least there is similitude. This is the fact.

HEFFNER: What is your objective as a broadcaster and a lawyer?

TAYLOR: What would be gained?

HEFFNER: Why do you want the TV in the courtroom?

SWEZEY: Because we want to perform our full service as a news medium and we can’t do it if we are prevented from going into public places and with the tools of our trade…answer to us that we have the same right as the newspaper reporter to take a pen and pencil and go in and scribble some notes. We have got particular tools of our trade and we assert that they are unobtrusive or can be made so, and if they are not made so, I’ll agree with you, Mr. Taylor, we ought not be there…

TAYLOR: I don’t believe that is the problem.

KELLEY: I don’t think that’s the problem either. I would trust the people going in there and would think they would not do that.

SWEZEY: That is the problem as far as the Constitutional rights are concerned. I saw if we deport ourselves properly and don’t interfere with the due process we have a right to be there.

TAYLOR: I do not believe there is a matter of Constitutional right here. There is a right to a public trial under the Constitution that is true. But public trial doesn’t necessarily mean—

SWEZEY: I am talking about freedom of the press.

TAYLOR: All right, freedom of the press ought to have access to public events. This does not mean—

SWEZEY: That’s all I am asking for.

TAYLOR: That is all you say you are a looking for but in fact what you are saying is because television is an organ of mass communication it must be treated identically with the press. There seem to be more occasions where television would…I do not think the courtroom is one of them. I have tried to state the reasons. This results in an enormous expansion of the immediate audience, and Miss Kelley has pointed out some of the reasons this does not work out well. There are many other things that could be cited.

SWEZEY: I think Miss Kelley had a point, but that is about the only one I can think of, where you might actually intimidate some people with guilty consciences or consciousness of guilt.

KELLEY: No, I wasn’t talking about a person with a consciousness of guilt. I was talking of a person who simply didn’t want to be revealed or run the risk of being revealed in any way in front of such a large audience an therefore would take some other means of disposing of his case even to the point of pleading guilty where he did not think he was. But I wanted to ask you a question, Mr. Swezey. Do you think…

SWEZEY: Not in…certainly not. But as I say, locally a lot of us now are doing considerable photographic camera coverage, et cetera, and we would obviously like to cover a trial of particular note in the community. I mean that it is of the news. In other words, right now we are trying to do as good a news job as the newspapers.

KELLEY: But in other words, certainly at the outset, if you were allowed to go into a courtroom you would go into one which for some reason or other had aroused the most public interest.

SWEZEY: Notoriety.

KELLEY: Just as the newspaper would.

SWEZEY: Just as the newspaper would.

KELLEY: Because actually it would seem to me that would have to be, and there again I am troubled because if what gets televised is the most exciting trial—

SWEZEY: We wouldn’t stop there, Miss Kelley.

KELLEY: But the interest in the day to day workings of the court amongst the public is certainly not great because there are courts all over this city that are open to the public and…
SWEZEY: Because it is difficult—most of them don’t even know where the courts are.

TAYLOR: I don’t think it is that. I think it’s because Miss Kelley is right, most people are not particularly interested in going to most court cases.

KELLEY: The general process, the workings of the court…Where they pack the court is where they think it is a particularly sensational case. It would see to me then in your seeking an audience on television whatever cases you telecast are going to be again pitched to these, which would seem to me to give the general public a distorted idea.

TAYLOR: And that is the very case these safeguards are likely to be the most important, when the pressure is the greatest.

SWEZEY: Well, we would obviously broadcast only those proceedings, which would be of reasonable interest to a large amount of our audience, but they need not all be murder and divorce cases.

HEFFNER: Do you think the response has been good where cases have been televised?

SWEZEY: Yes, excellent. That is my point. I think the Bar Association takes a very fine attitude toward this.

TAYLOR: Oh by all means this thing has got to be studied, and carefully.

HEFFNER: I am afraid our time is up, but I would like to quote one thing. Circuit Judge Sam C. Blair, after coverage of a trial said: “Hardly anyone knew you were there. Hope you come back again. The public has a right to know, a right to hear, and a right to see.” We will be back next week on The Open Mind for the, at least for the time being, concluding part of our series on the impact of television on American life with the program on TV and the molding of opinion. Our guests then will be Nicholas Samtag, John Cunningham, and Professor Paul Lazarsfeld. See you then.