TV or not TV - that is the question.

• Author: Lassiter, Christo

The Courtroom Television Network, now in its fifth year, is the first serious commercial effort to televise selected trials nationally and to provide expert commentary on what happens in America's courtrooms.(1) More than twenty million viewers have access to the Court TV network.(2) Court TV has televised more than 340 trials.(3) Apart from its entrepreneurial aspirations,(4) Court TV hopes to permit the American public to see the inner workings of a trial courtroom.(5)

Televised coverage of trials is a growth industry, fueled by an oversupply of lawyers competing for clients in an information-intensive free market economy6 as well by a public eager for courtroom drama.(7) Forty-seven states have adopted legislation which allow television cameras in the courtroom in some form, subject to the judge's discretion.(8) However, the exercise of this discretion may yield to the siren call of the media. Only Indiana, Mississippi, South Dakota and the District of Columbia impose an absolute ban against in-court cameras.(9)

Despite the surge in popularity of televised court proceedings, the bar has always, at best, been ambivalent about embracing cameras in the courtroom. Television coverage of a high profile criminal case such as the O.J. Simpson trial - the new "trial of the century" and perhaps the most watched event in history(10) - has by its very success or excess renewed interest in the wisdom of allowing cameras in court.(11)

Contemporaneous with the excesses of television coverage, a discernible tide has risen against cameras in court, especially in simulcasts of high profile cases.(12) It is not yet determined how state courts will cope with the problems of televisions, impact on trials in the aftermath of the O.J. Simpson trial. This question is already under review in a number of influential jurisdictions. For example, the New York State legislature recently rejected a bill to continue its experiment with cameras in the state trial level courts.(13) The state legislatures from California(14) to Georgia(15) have re-examined or adopted more restrictive measures designed to limit cameras in court, while Tennessee has become less restrictive in allowing camera coverage since the O.J. Simpson trial.(16) In-court camera coverage has only on-again/off-again appeal in federal courts, where judges are appointed with life tenure and do not depend on high visibility for re-election. In the 1994 U.S. judicial Conference, the policy-makers for the federal courts rejected a proposal to allow television cameras in federal courts on a permanent basis,(17) effectively banning cameras from the federal court rooms.(18) In 1996, the U.S. judicial Commission reversed that absolute position by a fourteen to twelve vote to allow cameras in federal court rooms if the individual judge chooses to do so.(19) The United States Supreme Court has not formally considered, nor appears likely to approve, any request to televise oral arguments before the Supreme Court.(20) Other countries also hesitate to permit cameras in the courtroom. Reported resistance includes courts in Canada,(21) England,(22) Ireland,(23) Scotland,(24) and Italy.(25)

This Article discusses the prejudicial impact of cameras in the courtroom. At the outset, it is important to distinguish between the effect of cameras in the courtroom and cameras outside of the courtroom.(26) Likewise, it is important to distinguish between pretrial television publicity(27) and television publicity occurring during the trial. This Article focuses on the impact of in-court cameras on the judicial process it explores the ways that merely adding a camera to the reporter's arsenal of media tools significantly alters the judicial process in ways which pad and pen never did. The wisdom of hindsight presages reconsideration of current practices permitting cameras in the courtroom. TV or not TV in the courtroom is indeed the question. The answer is worth reconsideration starting from first principles.

The lens cap should be put back on cameras in the courtroom. Why not televised trials? The answer in a word is that television makes trials more political and less judicial. In the Anglo-American legal tradition, ideally, courts are elevated above the morass of public clamor, political crassness, personal bias, and petty idiosyncracies to perform the solemn task of deciding competing factual claims in accordance with objectively neutral law. The high mark of secular justice in the advanced stage of modem nations is the separation of justice from general politics.(28) Television is the newest of technology, but it take us back to the oldest problem for jurisprudence, the merging of justice and politics.

Here is how the eye of a camera brings a political focus to a trial process which is designed to minimize political considerations. To be gin, court television viewers are not screened by voir dire, their consideration of matters are not limited by the strict laws of evidence, no are they sworn to follow court instructions for evaluating the case under consideration. Somewhat like a boxing match, the television public emotes politically at what it sees in a free consciousness form round-by-round. The public reaction becomes the media's recognized perception of the trial - and just as frequently the media creates the news it wants to report. This political, non-deliberative reaction becomes known to the parties at trial via cameras outside of the courtroom through nightly analysis and investigative journalism. Knowledge of the public's reaction in the minds of the trial participants becomes a form of technological tampering that taints the proceedings with political input from the sidelines. Although the rights of a free press and the educational and inspirational potential of television are not easily denied, these considerations must be balanced against the infusion of general politics which television introduces to any process or event it showcases.

Television coverage of a trial would be worthwhile where major issues of law having societal significance were under discussion. And therein lies an argument for using the television as communicator and educator.(29) But in the vast majority of cases there is little in the way of precedent-setting issues.(30) In the main, courts adjudicate highly personal disputes involving intimate details amassed from the personal lives of people and comprising nothing of interest to the general public beyond that of prurient voyeurism. The trial process represents the best possible human effort to do justice in an imperfect world. Incourt camera coverage, which in the words of Steve Brill "gives people a feeling that we're doing this together,"(31) can be prejudicial to the very judicial process it seeks to showcase by infecting it with political bias of all kinds, petty, personal and demographic. Television cameras do so by creating a comprehensive and instantaneous feedback loop between the trial participants and the television audience. This feedback loop provides a medium by which the reactions of a remote public to the ongoings at trial become known to the trial actors. When the trial actors respond to public reaction, the trial loses its judicial character and becomes a bully pulpit for the reigning political concerns as orchestrated by the media.(32)

There are three prejudicial effects of cameras in the courtroom. First, the trial, in reality, operates on a larger theme than the matter under charge, the judicial process is corrupted by a substitution of the solemn, calm, deliberate judgment of the finder of fact for the outrage of an inflamed public. Second, the adversarial system, designed for neutral and dispassionate judicial prosecution, transforms into an instrument of a politically motivated persecution. Third, the public outcry leads to a political vice of judicial disposition against a disfavored minority.(33)

This Article is organized into seven sections. Part II develops the current state of the law regarding live television coverage of trials. Parts III and TV marshal the arguments favoring and opposing cameras in the courtroom, respectively. Part V describes the prejudicial impact of television on trials due to the comprehensive and instantaneous feedback loop between the trial and the remote public. Finally, Part VI offers some concluding observations on the continuing propriety of allowing cameras in the courtroom.

2. A BRIEF LEGAL HISTORY OF CAMERAS IN THE COURTROOM AND

   THEIR CURRENT STATUS IN THE COURTS

   The history of cameras in the courtroom began crudely in a New Jersey trial room in 1935.(34) The case before the New Jersey trial court concerned the alleged kidnapping of the Lindbergh baby by Bruno Richard Hauptmann.(35) Because the case involved a celebrated American can hero,(36) media attention was intense(37) and predictably adverse to the defendant. The Hauptmann case was the first to show trial proceedings by audio-visual technology to a remote public, albeit against the instructions of the court. After they had promised the judge that they would only film the trial during recesses, the newsreel cameramen at Hauptmann's trial persuaded the trial judge to allow a camera in the balcony, which overlooked the jury and witness stand. Films of the recordings, however, showed up in newsreel theaters during the trial.(38) The trial judge ultimately barred all in-court photographic equipment during the trial proceedings because the intense media interest created a chaotic and carnival-like atmosphere, which disrupted the dignity and decorum befitting a courtroom.(39) The jury subsequently found Hauptmann guilty and the court sentenced him to death.

   In the aftermath of the overwhelming media coverage of the Hauptmann trial,(40) the American Bar Association (AB

   1. House of Delegates adopted Judicial Canon 35, which recommended a ban of all photographic and broadcast coverage of courtroom proceedings.(41) Of course, ABA canons are...