October 2007

Judicial Conference Opposes Use of Cameras in Federal Trial Courts

Citing the Judiciary view that camera coverage can undermine the fundamental right of citizens to a fair and impartial trial, a representative of the Judicial Conference testified last month against H.R. 2128, the Sunshine in the Courtroom Act of 2007.

The bill was the topic of a House Judiciary Committee hearing at which Judge John R. Tunheim (D. Minn.), the chair of the Judicial Conference Committee on Court Administration and Case Management, testified.

“The Judicial Conference strongly opposes H.R. 2128 to the extent that it allows the use of cameras in the federal trial courts,” he told the Committee. “The Conference also opposes the bill’s provisions allowing the use of cameras by any panel in all courts of appeals, rather than allowing that decision to be made by each court of appeals as a whole, which is the present practice.”

Also testifying at the hearing were Judge Nancy Gertner (D. Mass.); Representative Ted Poe (R-TX); U.S. Attorney John Richter from the Western District of Oklahoma; Susan Swain, President of CSPAN; Barbara Cochran, President of the Radio-Television News Directors Association, and Court TV anchor Fred Graham. Of the panel participants, only Tunheim and Richter pointed out the pitfalls of camera coverage.

U.S. Attorney Richter testified on behalf of the Department of Justice. In DOJ’s view of H.R. 2128, “the potential harm to fair trials and the cause of justice are many, are likely, and would be severe. In contrast, the benefits, if any, would be small.”

Electronic media coverage of criminal proceedings in federal courts has been expressly prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in 1946. In 1972, the Judicial Conference adopted a prohibition against “broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto,” a prohibition applying to criminal and civil cases.

The Judicial Conference began a three-year pilot program in 1991, allowing electronic media coverage of civil proceedings in six district and two appellate courts. The Conference subsequently concluded that cameras had a potentially intimidating effect on some witnesses and jurors and that it was not in the interest of justice to permit cameras in federal trial courts.

“The Conference is convinced that camera coverage could, in certain cases, so indelibly affect the dynamics of the trial process that it would impair a citizen’s ability to receive a fair trial,” Tunheim said. “Since a United States judge’s paramount responsibility is to seek to ensure that all citizens enjoy a fair and impartial trial, and since cameras may compromise that right, allowing cameras would not be in the interest of justice.”

In 1996, the Judicial Conference made a distinction between camera coverage for appellate and district court proceedings.

“Because an appellate proceeding does not involve witnesses and juries, the concerns of the Conference regarding the impact of camera coverage on the litigation process were reduced,” Tunheim said. The Conference agreed to authorize each court of appeals to decide whether or not coverage would be permitted. The Second and Ninth Circuits presently permit camera coverage in appellate proceedings.

“This is not a debate about whether judges would have personal concerns regarding camera coverage,” Tunheim explained. “Nor is it a debate about whether the federal courts are afraid of public scrutiny or about increasing the educational opportunities for the public to learn about the federal courts or the litigation process. Open hearings are a hallmark of the Federal Judiciary.

“Rather, this is a decision about how individual Americans—whether they are plaintiffs, defendants, witnesses, or jurors—are treated by the federal judicial process. It is the fundamental duty of the Federal Judiciary to ensure that every citizen receives his or her constitutionally guaranteed right to a fair trial . . . . [T]he Judicial Conference believes that the use of cameras in the trial courtroom could seriously jeopardize that right.”