Lights, camera, mistrial: conflicting federal court local rules and conflicting theories on the aggregate effect of cameras on courtroom proceedings.

• Author: Marvelley, Jacob

1. INTRODUCTION II. EVOLUTION OF CAMERAS IN THE COURTROOM A. Supreme Court Jurisprudence B. Famous Shortfall of Cameras in the Courtroom: the Bruno Richard Hauptmann Trial C. ABA Canon Evolutions: 1937, 1952, 1982, and Removal of Camera Canons D. District of Massachusetts vs. Eastern/Southern District of New York Local Rules Split E. Federal Legislative Activity F. Three Regulatory Systems with Three Different Purposes III. CONCERNS DERIVED FROM CAMERA PRESENCE IN THE COURTROOM A. Physical Imposition of Broadcasting or Recording Equipment B. Psychological Impacts from Recording or Broadcasting Equipment, Size of the Equipment Notwithstanding IV. EVALUATION OF THE LOCAL RULES & PROPOSED LEGISLATION'S ABILITY TO ADDRESS CONCERNS V. CONCLUSION I. INTRODUCTION

Since causing a mistrial in the Bruno Richard Hauptmann kidnapping and murder case, cameras have been inconsistently used in courtrooms, but have always sparked contentious national debate. (1) In the beginning, the meddlesome presence of large machinery, lighting, and cabling threatened the court's ability to do justice. (2) More recently, jurors fear the possibility of convicts' allies using video footage to identify jurors and seek retribution against them. (3) Cameras in the courtroom are at the epicenter of a battle between two competing cornerstones of American jurisprudential theory: the public's right to attend trials versus the judiciary's intense aversion toward privacy invasions and distortions of justice. (4)

American jurisdictions have responded differently to the utility-obstruction debate over cameras in the courtroom: while all jurisdictions ban television coverage of jurors, federal district courts deal with cameras differently in their Local Rules. (5) In the District of Massachusetts, Local Rule 83.3 bans broadcasting of any proceeding. (6) In the Southern and Eastern Districts of New York, Local Civil Rule 1.8 confers the discretion to allow cameras upon the presiding judge. (7) Recently, Congress has considered a bill to confer discretion to allow cameras upon presiding judges in the United States District Court, which would preempt the District of Massachusetts Local Rule in favor of the Eastern and Southern Districts of New York. (8) Do the merits of the debate over cameras in the courtroom favor a total ban of cameras, a judicial-discretion rule, or some compromise?

Part II(A) of this Note explains the evolution of Supreme Court case law relative to cameras in the courtroom. (9) Part II(B) examines the 1935 Bruno Richard Hauptmann trial as an example of early media intrusion into trial proceedings. (10) Part II(C) summarizes the American Bar Association's promulgation, amendment, and eventual deletion of ethical rules governing cameras in the courtroom. (11) Part II(D) investigates the split between the District of Massachusetts and the Eastern and Southern Districts of New York concerning local rules governing cameras in the courtroom. (12) Part II(E) summarizes recent federal-level legislative efforts to create a uniform rule among federal district courts. (13)

Part III analyzes current arguments for and against broadcasting court proceedings, focusing on the effect on people in the courtroom. (14) Part IV matches Part III's theoretical pro/con analysis with the practical effects of cameras and recommends a model rule to address concerns with cameras while exploiting potential benefits. (15) Camera use would be best regulated by federal legislation conferring judicial discretion and requiring case-by-case analysis of a camera's potential effect on each proceeding.

PART II. EVOLUTION OF CAMERAS IN THE COURTROOM

The evolution of cameras in the courtroom is best described by addressing three areas. The first part is the United States Supreme Court's jurisprudence, starting in 1963 with Rideau v. Louisiana (16) Second is a discussion of the practical evolution of cameras, beginning with the 1935 trial of Bruno Richard Hauptmann (17) and ending with the 1995 case of O.J. Simpson. (18) Third is a summary of the current split between states permitting and banning cameras in trial and appellate settings.

1. Supreme Court Jurisprudence

   The first major consideration of video publicity of a trial was in Rideau v. Louisiana, where police videotaped an interview with the defendant, a suspect in a robbery, kidnapping, and murder. (19) The video contained an interrogation and subsequent admission to the alleged crimes by the defendant. (20) That video was broadcast the night of the interrogation, then for two subsequent days, with a peak viewership of 53,000 people during the middle day of the broadcast. (21) The trial court refused the defendant's motion to change venue. (22) The Supreme Court held that the pervasive broadcasting of the defendant's confession before trial was a denial of due process. (23) The Court held that when the community is affected by such a highly-publicized confession, no fair trial can be conducted in that venue. (24)

   The first leading Supreme Court case to consider cameras in the courtroom was Estes v. Texas. (25) The Estes trial was a macrocosm of the Rideau problem of broadcasting preliminary proceedings pervasively throughout the population of the trial venue. (26) Several pre-trial sessions involved twelve or more cameramen, wires and cables cluttering the courtroom floor, and many microphones strewn about the room, including near the jury. (27) During trial, "[a] booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room." (28) Additionally, the trial judge permitted only some parts of the trial to be broadcast live, which ultimately resulted in broadcasts of sound bites and video clips with reporter commentary. (29) The Court in Estes held that the Anglo-American court system's ability to provide fair trials depends on the trial atmosphere, which cameras disturb to the point of denaturing the proceedings. (30) Finding such a probability of prejudice resulting from cameras in the courtroom, the Court held that parties do not need to demonstrate prejudice to make a due process argument against broadcasting. (31)

   Estes enumerated several concerns over the probable, negative effects of cameras in the courtroom: the impact of televised newscasts on jurors; (32) the impact on witnesses when they discover they will be heard by a larger audience than those in the courtroom; (33) the increase in workload on the judge in supervising telecasting; (34) and the numerous effects on defendants, such as distracted and less-effective counsel and public prejudice. (35) Despite finding myriad negative effects of cameras, the Court remained open to changing the ban on cameras if technology and different tactics could prevent the aforementioned effects in the future. (36)

   In Chandler v. Florida (37) the Supreme Court reversed course from Estes, "hold[ing] that the Constitution does not prohibit a state from experimenting with the program authorized by revised Canon 3A(7)." (38) In Chandler, the Court re-opened the issue of allowing cameras in courtrooms by holding that Estes, a plurality opinion, did not bar "photographic, radio, and television coverage in all cases and under all circumstances." (39) The Court then attacked the Court in Estes' identification of the dangerous effects of cameras as lacking empirical support. (40) The Court found the existence of psychological impacts resulting from cameras were still debated by experts in the field and could not be readily proven for a total ban. (41) Since cameras were, at the time, run on an experimental basis and those experiments included guidelines to protect from possible bad effects, the potential risk of prejudice to the legal system did not warrant a ban. (42)

2. Famous Shortfall of Cameras in the Courtroom: the Bruno Richard Hauptmann Trial

   The first major trial to include televised broadcasts was State v. Hauptmann. (43) In 1935, Hauptmann was charged and tried for the kidnapping and murder of Charles Lindbergh's son. (44) Conflicting reports exist regarding the overwhelming quality of cameras' presence in the Hauptmann trial, but many sources agree that the press saturated the proceedings. (45) Reports do agree on the overwhelming presence of journalists covering the trial, with estimates of 700 reporters and 121 to 129 photographers inside and outside the courtroom. (46) Ultimately, as many as 275 spectators and 135 journalists were present inside the courtroom. (47) Lights were added to the courtroom to assist both the still-and motion-cameras, raising the ambient temperature in the courtroom. (48)

   While one report claimed Judge Thomas W. Trenchard tightly restricted photography and newsreel camera placement, (49) another explained that Sheriff John Curtiss permitted newsreel companies to record the trial if the cameras were hidden and no newsreels were played before the end of the trial. (50) The cameras, however, were obvious, and one newsreel was released prior to the trial's end. (51) Hauptmann was found guilty and appealed his conviction, claiming, in part, that the media's presence denied him a fair trial. (52) The New Jersey Court of Appeals rejected the argument, and held that the court was correct to afford reasonable access to the media, and that the judge's regulation of the media was adequate and not reversible. (53) Although the New Jersey Court of Appeals did not react to the allegations of media disturbance during the Hauptmann trial, some credit the case with sparking the development of American Bar Association Canons. (54)

3. ABA Canon Evolutions: 1937, 1952, 1982, and Removal of Camera Canons

   Although the American Bar Association ("ABA") originally contemplated the issue of cameras in the courtroom in 1924, the first relevant canons were created in 1937 in response to Hauptmann. (55) ABA Canon 35 banned photographs and broadcasting from the courtroom, citing the propensity to...