Recent Action In Two Circuits Highlights Issue Of Cameras In The Federal Courtroom

The Judicial Council of the Ninth Circuit authorizes a pilot program for the “video recordings in civil non-jury matters only”; policy applies to 15 district courts in the nine western states and the U.S. Territory of Guam and the Commonwealth of the Northern Mariana Islands; Recent censure issued in the Seventh Circuit concerning district court’s permission to use of a video recording and broadcast of a civil proceeding.

Under current policy of the Judicial Conference of the United States established in 1996, each circuit council may determine if cameras may be permitted in their courts and under what circumstances. See Report Of The Proceedings Of The Judicial Conference Of The United States, at 17 (March 12, 1996) (“The Judicial Conference agreed to authorize each court of appeals to decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments, subject to any restrictions in statutes, national and local rules, and such guidelines as the Judicial Conference may adopt.”); see also Report Of The Proceedings Of The Judicial Conference Of The United States, at 17 (Sept. 15, 1996) (“In light of the Judicial Conference’s strong opposition to cameras in courtrooms, determined to oppose the judiciary’s federal courts improvement bill if it includes a provision authorizing presiding judges of district and appellate courts to permit media coverage of court proceedings.”). Cameras are prohibited in criminal proceedings under Fed. R. Crim. P. 53 (“Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”).

Recent action in two circuits implicated the Judicial Conference policy. In one circuit, authorization for using cameras in civil proceedings has been granted. In the second circuit, a district court judge was censured for permitting a video recording and broadcast of a civil proceeding. The Second Circuit previously adopted guidelines to allow cameras in the courtroom in civil proceedings, but not in pro se matters. See Cameras In The Courtroom - Second Circuit Guidelines (March 27, 1996).

Judicial Council of the Ninth Circuit

The Judicial Council of the Ninth Circuit has unanimously approved experimental “dissemination of video recordings in civil non-jury matters only”. While details of the pilot program remain to be worked out, under the announcement, “Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge.” The decision applies to the 15 district courts within the Ninth Circuit which includes the nine western states (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) and the U.S. Territory of Guam and the Commonwealth of the Northern Mariana Islands. Since 1996, the Ninth Circuit has barred the use of photographs, radio and television coverage in courtrooms. See Ninth Circuit Judicial Council Approves Experimental Use of Cameras in District Courts.

Judicial Council of the Seventh Circuit

This issue of cameras in the courtroom was highlighted in a recent video recording and broadcast of a civil proceeding concerning a school consent decree in the Central District of Illinois. Since 1996, the policy in the Judicial Council of the Seventh Circuit has barred electronic broadcasting in district courts (other than ceremonial occasions). See Judicial Council of the Seventh Circuit Resolution (Oct. 15, 1996). In September 2009, a district judge in the Central District of Illinois permitted a live broadcast, video camera and photographer in a civil case. Seventh Circuit Chief Judge Frank Easterbrook censured the judge for violating the policy of the Judicial Conference of the United States and the Judicial Council of the Seventh Circuit. In his Memorandum, Chief Judge Easterbrook noted:

“The role of cameras in the courtroom is a subject of ongoing debate in the legislative and judicial branches, and among members of the public. People of good will advocate photography and broadcasts; other people think that cameras would have ill effects. No matter what one makes of these contentions, once the Judicial Conference of the United States and Judicial Council of the Seventh Circuit have adopted a policy, a judge must implement it without regard to his own views.”
See Memorandum (dated September 28, 2009). The district court judge issued an apology, and the matter was concluded.

Impact Of Cameras In the Courtroom

Whether cameras should be allowed in federal courts has been a subject of controversy for many years. Many questions are raised concerning the impact of cameras in the courtroom, including a few of the following:

  • Will participants change their courtroom behavior with cameras in the courtroom, as some have suggested? See Cameras in the Courtroom: Limited Access Only, Texas Bar Journal (Oct. 2004) (“The Hawthorne effect occurs when people aware that they are being observed alter their behavior (in this case adopting vast eloquence and extreme circumspection) to meet what they imagine to be expectations of the observers.”) (citation omitted).
  • Further, how would the review of evidence be affected by recorded proceedings? On many evidence issues, including credibility findings, the court of appeals applies a deferential abuse of discretion standard of review the trial court ruling. If a video record is made of the proceedings, would a reviewing court be inclined to review the record itself, with less deference to the trial court?
  • For what levels of court should cameras be permitted? Beyond district courts, should televised coverage of appellate and Supreme Court cases be allowed?

Pending Legislation

In the current Congress, legislation has been introduced in the House and Senate to permit television coverage. On March 19, 2009, Senator Grassley (R-IA) introduced the "Sunshine in the Courtroom Act of 2009.” See S. 657, 111th Cong., 1st Sess. (2009). A similar measure was introduced in the House of Represenatives on June 25, 2009. See H.R. 3054, 111th Cong., 1st Sess. (2009).

A related issue concerns television coverage of Supreme Court proceedings. Measures have been introduced in both houses of Congress to permit the televising of Supreme Court proceedings. On January 9, 2009, Representative Ted Poe (R-TX) sponsored H.R. 429, 111th Cong., 1st Sess. (2009), and on February 13, 2009, Senator Specter (D-PA) introduced S. 446, 111th Cong., 1st Sess. (2009).

On November 5, 2009, Senator Arlen Specter (D-PA) introduced S. Res. 339 to express the sense of the Senate in support of televised Supreme Court proceedings. See S. Res. 339, 111th Cong., 1st Sess. (2009); see also 154 Cong. Rec. S11218-21 (daily ed. Nov. 5, 2009); Sen. Rep. No. 448, 110th Cong., 2d Sess. (Sept. 8, 2008) (reporting a measure to permit the televising of Supreme Court proceedings).

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