Louisiana Insurance Litigation Blog
I. Introduction
There is no field of governmental activity concerning which the people are as poorly informed as the field occupied by the judiciary.
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It is highly inconsistent to complain of the ignorance and apathy of voters and then to ‘close the windows of information through which they might observe and learn.’ Generally only idle people, pursuing ‘idle curiosity’ have time to visit court rooms in person. What harm could result from portraying by photo, film, radio and screen to the business, professional and rural leadership of a community, as well as to the average citizen regularly employed, the true picture of the administration of justice? Has anyone been heard to complain that the employment of photographs, radio and television upon the solemn occasion of the last Presidential Inauguration or the Coronation of Elizabeth II was to satisfy an ‘idle curiosity’? Do we hear complaints that the employment of these modern devices of thought transmission in the pulpits of our great churches destroys the dignity of the service; that they degrade the pulpit or create misconceptions in the mind of the public? The answers are obvious. That which is carried out with dignity will not become undignified because more people may be permitted to see and hear.
– Justice Otto Moore of the Colorado Supreme Court, 1956
In this day and age of near constant, twenty-four hour news coverage, accessible through numerous television outlets (to wit, CNN, CSPAN, Fox News, MSNB, et al.), as well as through the more recent medium of internet distribution, access to the inner-workings of our government, on both the state and federal levels, is at an all-time high. While this statement is generally true for and applicable to both the executive and legislation branches, as sagely summarized by Justice Moore over fifty years ago, it can not be said to apply nearly as much to the judiciary. As for the Article III entities, it has been succinctly stated that there exists neither a constitutional prohibition against, nor a constitutional presumption in favor of allowing cameras in the courtroom. This being so, the debate surrounding this issue has naturally flourished and is no less heated today.
As will be explored in greater depth in later sections of this paper, currently, all fifty states allow at least some camera coverage of judicial proceedings, including thirty-seven states in which criminal trials may be televised. Only the District of Columbia bans camera coverage of all judicial proceedings. In the federal system, cameras are only permitted to be used in the Circuit courts of appeal and then only upon the discretionary approval of the presiding judges. The greatest hurdle to expanded camera coverage, the U.S. Supreme Court, has consistently remained opposed to cameras within its own hallowed halls. As discussed later, this stalwart opposition from the federal judiciary just may be softening, however.
Many state courts have sided with the supporters of electronic and video media coverage in the courts arguing that the rights of free speech and/or freedom of the press under the First Amendment and state constitutional equivalents. In contrast, for those opposed to the greater expansion of such media into federal courts, particularly at the district levels, it is argued that such media coverage and camera exposure infringes on a defendant’s Sixth Amendment right to a fair trial and also perhaps upon the Fourteenth Amendment right to due process.
This paper discusses both current and historical state and federal approaches to cameras in the courtroom. This paper also sets out the most cited arguments both for and against the expansion of cameras and of electronic media coverage in courtrooms. Last, this paper presents examples of pending legislation intended to expand cameras and electronic media coverage in courtrooms ultimately concluding that such legislation, if made law, will greatly serve the interests of justice through access, accountability, and education; that is, through the spreading of sunshine in the courtroom. Indeed, as Justice Brandeis once wrote: “Sunshine is said to be the best of disinfectants.”
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II. The States and the Louisiana Approach
Based in large measure on the nation’s revolutionary past, states have historically and for some time recognized the value in public access to courtrooms. Presently, and from this tradition, all states subscribe to the idea of “open courts” to at least some degree. Most states have a constitutional or statutory provision announcing that courts shall be public and open with the exception of particularly sensitive proceedings, such as those involving sexual abuse or certain domestic matters, for example, which may be closed to the public upon the court’s discretion. Exceptions aside, many states have carved out a niche for the media to operate within the courtroom. This is evidenced through legislative enactments, court rules, and judicial codes of conduct.
While access to state appellate courts is broad, it is clear that state practices at the trial level vary, from the broad allowance in a state such as Florida, where electronic media and still photography coverage of a proceeding is allowed in both appellate and trial courts, to the complete ban in our nation’s capital. (In fact, in Florida, the exclusion of the media is permissible only where it is shown that the proceedings will be adversely affected because of a “qualitative difference” between electronic and other forms of coverage. A “difference” apparently not even demonstrated in the circus-like antics of Broward County Judge Larry Seidlin, who presided over the Anna Nicole Smith probate proceeding). A number of states allow for near-unfettered access to both trial and appellate courts with discretion of the presiding judge as the only impediment. Examples of such states include California, Colorado, Florida, Georgia, Michigan, Nevada, and Tennessee, among others. However, as is often the case, Louisiana somehow finds itself left out of the list of states that espouse a progressive social view of their own court systems. Indeed, Louisiana finds itself amongst the minority of states that limit camera access to only appellate proceedings.
The public discourse in Louisiana regarding the expansion of cameras into trial court proceedings has, by all accounts, been rather scarce over the past several years. Anecdotally, in a moment of levity at the July 2003 swearing in ceremony for Judge Maury Hicks, Judge Richard Haik, chief judge of the U.S. Western District of Louisiana, remarked that “‘not only do we not allow cameras in the courtroom, we don’t even allow people to see what’s going on.'”
In 1993 the Louisiana Supreme Court commissioned a study, orchestrated by members of the state bar, to analyze and make recommendations regarding the effects of cameras in the courtroom and to also make recommendations regarding the proper extent of their presence in Louisiana courts. It is the Louisiana Code of Judicial Conduct that sets forth the state’s rules and procedures for allowing cameras in to cover judicial proceedings. Specifically, Appendix 3 to the Code, which was amended and took effect following the conclusion of the Supreme Court study in 1993, allows for electronic coverage of appellate proceedings leaving coverage at the trial level generally prohibited. At the appellate level, obtaining the consent of the involved parties is not required, although the Court may prohibit coverage upon its own motion or if an objection is made by a party. Notice of intent to cover a proceeding must be made at least 20 days in advance or, in expedited proceedings, within a reasonable time before the proceeding is schedule to occur. Further, no more than two television cameras, each operated by no more than one camera person, and one still photographer, using not more than two still cameras with not more than two lenses for each camera, are permitted in the courtroom during proceedings.
Since the institution of Appendix 3 to the Code in 1993, there has been no significant change to or expansion of such electronic coverage in Louisiana courtrooms. This, despite the fact that most other states provide for greater access to court proceedings than does Louisiana. Further, other states have demonstrated a greater commitment than has Louisiana to tracking the effects on trial proceedings and outcomes of such expanded electronic coverage. Iowa and Alaska are but two examples of such other states that have commissioned multiple-year programs to study the effects of cameras in the courtroom. The results of these two studies, as well as others, demonstrated that greater camera and media presence in courtrooms did not negatively impact the performance and/or focus of jurors, attorneys, judges, or witnesses. In other words, in the plain but effective words of Justice Moore, “[a] ‘show-off’ or a ‘strutter’ will be just that whether a camera is present or not. They are readily identified by any person of ordinary intelligence and are ultimately adequately and justly disposed of by the people.”
The variation among the states is further evidence of the ongoing debate over cameras in the courtroom, and suggests that there is indeed room for positive change. It is now the case that the number of states that have adopted more liberal standards, at least at the appellate level, outnumbers those that impose more restrictive standards.
The more progressive approach to allowing cameras in courtrooms taken by most other states, as well as pending federal legislation seeking to expand the presence of cameras in federal courts, discussed in greater depth in a later section of this paper, should be a signal to Louisiana to reconsider the issue. With the recent inauguration of a new governor in this state, who has indicated his desire to take up the issue of ethics in government as his very first priority, there can be no better time for such action.
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III. Federal Courts articulate the Cons: Bases for opposition to cameras in the courtroom
Although state courts have generally indicated a progression favoring cameras in the courtroom, in contrast, the Federal Judiciary remains largely opposed to the practice and has exhibited markedly slower advancement in opening federal courtrooms to the media. Federal courts are essentially closed to cameras. In 1972, the Judicial Conference, which makes the rules for the federal judicial branch, banned photographs and television cameras from all federal courts. In the early 1990s, a three year pilot program was allowed, to experiment with electronic media in civil courtrooms in selected district and appellate courts. As a result, the Judicial Conference voted to permit each of the federal appellate circuits to “decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments.” Most circuits declined; however, the Second and Ninth Circuits acted to allow such coverage. Although the United States Courts of Appeal retain the right to allow media presence at their discretion, the majority, including the Fifth Circuit, has opted not to implement televised broadcasting of any type. Perhaps the most stalwartly opposed institution to media attended courtroom proceedings, however, is the United States Supreme Court.
Lower federal courts’ staunch resistance is undoubtedly influenced by the Supreme Court’s position on the issue of cameras in the courtroom, on both personal and jurisprudential bases. The High Court rendered an undeniable preference for non-televised proceedings when it decided Estes v. Texas in 1965. In Estes, the defendant moved prior to trial to exclude photographic and broadcast coverage of the proceedings involving the financial fraud of several farmers. The trial judge ultimately permitted television coverage of the trial, restricting cameras to a constructed booth in the back of the courtroom. The defendant was found guilty of his charges and appealed his conviction, arguing that television coverage had denied him a fair trial. In its 5-4 decision in favor of the defendant/appellant, the Court held that television broadcasting coverage was distracting to jurors, judges and defendants and in particular, was likely to alter witness testimony. In such a situation, the court ruled that the rights of criminal defendants outweigh the interests of broadcasters to televise trials.
The High Court’s language in Estes could arguably be construed to rest the burden of opening the courtroom on the media’s ability to maintain a non-distracting posture during court proceedings. Although the Court’s ruling specifically contemplated the interruptive nature of technologically dated cameras at that time would not always be so, it held that “Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today.” In today’s climate, where technological advances have surpassed all expectation, it is reasonable to question if the rationale in Estes would have held true if decided today.
The Supreme Court further shed light on the issue in its 1981 ruling of Chandler v. Florida. In Chandler, the Court held 8-0 that consistent with constitutional guarantees, a state could allow radio, television and still photographic coverage of a criminal trial for public broadcast, regardless of objection by Defendant. In so holding, the Court clarified that Estes “did not announce a constitutional rule that all photographic, radio and television coverage of criminal trials is inherently a denial of due process.” Further, the Court ruled that a showing of prejudice of constitutional dimensions was absent, and accordingly:
An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, conduct of the broadcasting process or prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials by the printed media; so also the risk of such prejudice does not warrant an absolute constitutional ban on all broadcast coverage. A case attracts a high level of public attention because of its intrinsic interest to the public and the manner of reporting the event. The risk of juror prejudice is present in any publication of a trial, but the appropriate safeguard against juror prejudice is the defendant’s right to demonstrate that the media’s coverage of his case-be it printed or broadcast- compromised the ability of the particular jury that heard the case to adjudicate fairly.
Despite the ruling in Chandler, federal courts’ position on allowing cameras in the courtroom has remained largely unchanged. Although broadcasters have repeatedly requested and lobbied for access, the Judicial Conference of the United States–which establishes policy for the federal courts–has consistently refused to reconsider its rules prohibiting television and radio broadcasting from federal trials. In 1996, the Judicial Conference allowed experimentation with cameras in federal courtrooms, but subsequently decided not to renew that experiment.
The Supreme Court, in particular, has inexorably refused to allow cameras into the court, even notably denying the requests of broadcasters to televise the historic argument in Bush v. Gore. Despite the Court’s official stance, however, the Justices appear to be potentially conflicted on the issue:
“The day you see a camera come into our courtroom it’s going to roll over my dead body.” –Justice David Souter, Congressional Testimony, 1996.
“It runs the risk of undermining the manner in which we consider the cases. Certainly it will change our proceedings. And I don’t think for the better.” – Justice Clarence Thomas, Testimony before a House Appropriations subcommittee, April 4, 2006.
“Not a chance, because we don’t want to become entertainment. I think there’s something sick about making entertainment out of other people’s legal problems. I don’t like it in the lower courts, and I don’t particularly like it in the Supreme Court.” –Justice Antonin Scalia, CNBC Interview, October 10, 2005.
“If it were in the Supreme Court, I think it would become a symbol for every court, and therefore it would be in every criminal trial in the country. And when I start thinking about witnesses, I don’t want them thinking how they look to their neighbors…And I do think about the O.J. Simpson case.” –Justice Stephen Breyer, American Bar Association Rule of Law Symposium Panel on the Role of the Judiciary, November 10, 2005.
“I would not object, just for myself, to having proceedings televised, provided the control remain in the hands of the Court and that the coverage was gavel-to-gavel but I do not think a decision like that should ever be forced on judges who take a different view. Right now, the view is that our proceedings should not be televised. That may change based on the experience of state supreme courts. Several of our states are experimenting with televised trials. Televised appeals. And if it works, in time it will spread, and if it doesn’t, then it won’t…Our courtroom is generally packed, sometimes there are long lines to get in…and this would be another way of opening the court further.” – Justice Ruth Bader Ginsberg, Interview with Canadian Lawyers Weekly, October 2000.
“Sometimes if the system is flawed, the people ought to know it. And if television shows a flawed system, then let them see it…But television can be a teacher. And if we were going to have a debate on television in the courtroom, and you drew the affirmative side of the debate, you could make probably more positive points. And we sometimes wish lawyers were better prepared, but they haven’t seen us at work. If they had a videotape or DVD, then they could see it. So you can make a lot of arguments for it.” –Justice Anthony Kennedy, American Bar Association Rule of Law Symposium Panel on the Role of the Judiciary, November 10, 2005.
“I had the opportunity to deal with this issue actually in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if it wanted. We had a debate within our court about whether we would or should allow television cameras in our courtroom. I argued that we should do it…The issue is a little different in the Supreme Court. It would be presumptuous for me to talk about it right now, particularly since at least one of the justices have said that a television camera would make its way into the Supreme Court over his dead body. I will keep an open mind despite the decision I took in the third circuit.” –Justice Samuel Alito, Confirmation Hearing, January 11, 2006.
“There’s a concern (among justices) about the impact of television on the functioning of the institution. We’re going to be very careful before we do anything that might have an adverse impact.” – Chief Justice John Roberts, Remarks at the Ninth U.S. Circuit Court of Appeals’ annual conference, July 13, 2006.
“Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of. But I don’t have a view on that. I do think it’s something that I would want to listen to the views of – if I were confirmed – to my colleagues.” -Chief Justice John Roberts, Confirmation Hearing, September 14, 2005.
So why does televised coverage find such sparse support within the Federal Judiciary? As articulated above, the bases for denying cameras access to courtrooms, though not explicitly articulated in the Bill of Rights, often find their roots in constitutional law. The Sixth Amendment of the Constitution provides the right to a speedy and public trial with an impartial jury, Fourteenth Amendment provides Equal Protection and Due Process under the law. The Judicial Conference and the federal courts still maintain the position that live television coverage distracts trial participants, unfairly affects the outcomes of trials and diminishes the dignity of the courts, and thus, these constitutional guarantees are violated.
Opponents argue that televised coverage undermines a party’s fair trial rights both in court and out of court. Cameras displaying live proceedings are purported to negatively affect the tendency of witnesses to articulate completely and specifically, and jurors are supposedly distracted by the activity of the media, thus possibly failing to absorb significant testimony. Additionally, as many media outlets will only broadcast a short sound byte of the courtroom proceedings, some offer that public opinion will be shaped largely by the portions chosen to be broadcast. Because jurors, even if sequestered, will likely be affected by public opinion, they are indirectly impacted by which snippets of the testimony will be seen on TV.
In addition to constitutionally contemplated opposition, some opponents offer logistic difficulties for disallowing cameras in the courtroom. In permitting broadcasting, decisions must be made as to how many personnel will be allowed in a limited amount of space, as well as the manner of handling sensitive issues, such as minor children. The potential expenses of transmission, although usually borne by broadcasting companies, concerns protectors of a modest judicial budget. Morever, in a time where crowded dockets are the rule rather than the exception, some detractors offer that including media will inevitably lead to scheduling conflicts and technical difficulties, therefore resulting in longer trials and other proceedings.
Despite the arguments against, however, the pressure seems to be mounting to allow increased sunshine in all courtrooms. In the day of “reality tv”, the public is becoming accustomed to observing/critiquing formerly private situations. Additionally, countless political campaigns are centered around increased discussion and reform of government ethics. This “trend of openness” is sought by many to be extended to courtrooms, a crusade which appears to have reached America’s legislative branch.
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IV. H.R. 2128 and S.352: The Sunshine in the Courtroom Bills of 2007
There have been various efforts within the United States Congress to open federal courts to televised media coverage. Although not the first of these, the widely hailed “Sunshine in the Courtroom Act” was previously introduced on April 18, 2005 in the United States Senate to allow media coverage of court proceedings. The bill, cited as the “Sunshine in the Courtroom Act of 2005”, was a bi-partisan effort, sponsored by Senator Charles Grassley [R-IA] and co-sponsored by eleven other republican and democratic senators. The bill proposed to “give Federal judges the discretion to allow for the photographing, electronic recording, broadcasting and televising of Federal court proceedings.” As Senator Grassley noted in his introduction of the bill to the Senate on April 18, 2005, the bill “gives judges the discretion to use cameras in the courtroom…it does not require judges to have cameras in their courtroom if they do not want them..the bill also protects the anonymity of non-party witnesses by giving them the right to have their voices and images obscured during testimony.” Despite the Sunshine Act’s broadly supported sponsorship, the bill died in the Senate and never became law.
However, H.R. 2128 and companion bill S.352, the currently proposed “Sunshine in the Courtroom Acts of 2007”, now before the House and Senate Judiciary Committees, propose similar legislation authorizing the presiding judge of a United States appellate court or district court to permit the photographing, electronic recording, broadcasting, or televising to the public of court proceedings over which that judge presides, except when such action would constitute a violation of the due process rights of any party. The bill, chiefly sponsored by Congressman Bill Delahunt and Rep. Steve Chabot of Ohio in the House and Senator Chuck Grassley in the Senate, authorize the Judicial Conference of the United States to dictate advisory guidelines for use by a presiding judge regarding implementation of media in the courtroom as contemplated by the Act. Additionally, the Act directs a district court to order the disguise of a witness’ face and voice to render the witness unrecognizable to the broadcast audience of the trial proceeding upon the request of the witness (not a party), and also directs the presiding judge in a trial proceeding to inform each witness who is not a party of the right to make such request. Notably, the bill contains a specific provision restricting the televising of jurors. In promoting the bill, Congressman Delahunt explained its purpose: “Cameras in the courtroom offer an alternative – an unedited, unfiltered, unvarnished glimpse of the judicial process as it really is…the goal of this legislation is to enhance our confidence in the American justice system.”
H.R. 2128 was introduced to the House on May 3, 2007 and referred to the House Committee on the Judiciary, where it has remained, undergoing the processes of referrals, hearings, and markups, largely in the Subcommittee on Courts, the Internet and Intellectual Property. S. 352 was introduced in the Senate on January 22, 2007 and referred to the Committee on the Judiciary, where it has continued to undergo hearings and consideration. If passed, the Sunshine Act will give Federal Judges considerable discretion to determine the amount of media access to their courtrooms. Because of a Judge’s ability to restrict or allow such coverage, however, the future impact of such a measure is arguably undeterminable at this time.
V. The Pros: Historical and Constitutional Reference as well as the Practical Considerations of Education and Accountability
Based on our colonial past, the value of open access to the functions of our judiciary has long been recognized in our nation’s history. In fact, to some degree, the value placed upon open trials and the public jury system by our Founding Fathers can be said to have shaped the core principles that would later make up those parts of the Bill of Rights dealing with our trial system, i.e. the Sixth Amendment, as well as the First Amendment rights to the accessability of public proceedings as well as to free and open speech and press. As has been discussed, while the ideal of expanded media presence in our courtrooms today has been refuted by some, the concept is supported by strong arguments both of a constitutional nature and of a common sense nature. The arguments in favor of such expansion, it is posited herein, far outweigh those to the contrary.
More than any other amendment, the issue of cameras in the courtroom invokes those rights and liberties made the basis of the First and Sixth Amendment. Detractors would argue that there exists a natural tension between the guarantees of the Sixth Amendment and those secured by the First. In other words, those detractors argue that the more “public” a proceeding becomes, the less “fair” it gets. This is a cynical view that does not account for the inherent, but often subtle genius exhibited by our Founders. Indeed, the proper and more logical view would be to consider the two amendments as “mutually reinforcing,” a concept promoted by countless sources, both legal and academic. In essence, the idea or concept of reading these two amendments together goes as follows: public access to and participation in our courts and court system provides an extra-judicial check on dubious judges and potentially biased participants, thereby reinforcing a defendant’s Sixth Amendment right to a fair and public trial. Further, a jury’s power to consistently uphold the individual’s right to free speech if challenged likewise promotes the goals of the First Amendment by use of the Sixth. Thus, through the concept of “mutually reinforcing amendment,” the arguments in favor of greater access to our courtrooms, through media, clearly “shine” through.
Thus, on the constitutional front, the view in favor of expanded access to courtrooms is strong. However, this right of access, as promoted by and inherent in the guarantees of the First and Sixth Amendments, will not be fully vested in the people until the public is allowed access to all proceedings, or at least to those not involving highly sensitive and/or exceptional issues. This, it is argued, cannot occur without the expanded involvement of broadcast. Thus, a return to the core of those ideals originally envisioned through the First and Sixth Amendments is necessary. In other words, the rights guaranteed through these amendments would be greatly enhanced by harnessing for the good the often rightly maligned medium of broadcast.
Beyond these loftier constitutional ideals there lie very common sense and practical reasons supporting the idea of cameras in the courtroom. The practical argument contains two very simple and digestible parts: first, that the lens of media, acting not on its own behalf but on behalf of and for the public at large, provides an accountability check on the judicial branch, both judge and participant, and second, that the greater accessibility and ability to view the inner-workings of a court through media serves as perhaps the best tool for educating the citizenry about its heretofore least visible branch of government.
As to the accountability argument, a cameras impact on the behaviors and actions of a judge are fairly easy to comprehend. However, the accountability argument applies to others as well. Indeed, it can be said that, in so far as the administration of justice is enhanced by greater courtroom access and visibility, the public benefits from its own inclusion. Scholars pointing to early social commentators, including the influential Alexis de Tocqueville, have made clear that “the core interest underlying the jury trial is that of the jurors rather than the parties. And the citizenry’s interest in a jury trial transcends that of the twelve jurors. The public benefits from having ordinary citizens monitor judges, the police, and prosecutors.”
The educational component of the argument in favor of the proliferation of cameras in the judiciary is, in these modern times, perhaps even stronger. Of course today, much of what the populace learns of its government it learns through the medium of television. The benefits of greater visibility through broadcast can not be understated. As concluded by one observer: “students, educators, and lawyers would additionally benefit by being able to observe ‘firsthand,’ via the broadcast and videotape, the trial and its participants.” Needless to say, this type of benefit would greatly assist a populace already somewhat bewildered by and distrusting of the judicial process.
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