Bill Moves to Allow Camera Coverage of Courts

S. 986, a bill to allow camera coverage of court proceedings, was approved in late November by the Senate Judiciary Committee. The bill, due to sunset three years after the date of enactment, would permit the photographing, electronic recording, broadcasting, or televising to the public of federal court proceedings, but only at the discretion of the presiding judge. Proceedings at the Supreme Court and appellate and district court levels would be affected.

The Judicial Conference has consistently expressed the view that camera coverage can do irreparable harm to a citizen’s right to a fair and impartial trial.

Chief Judge Edward R. Becker (3rdCir.) testifying before Congress on a similar bill, said, "We believe that the intimidating effect of cameras on litigants, witnesses, and jurors has a profoundly negative impact on the trial process. Moreover, in civil cases, cameras can intimidate civil defendants who, regardless of the merits of their case, might prefer to settle rather than risk damaging accusations in a televised trial."

Under S. 986, witnesses could request that their faces or voices be disguised or otherwise obscured to conceal their identities from the broadcast audience. The Judicial Conference also could promulgate advisory guidelines to which a presiding judge could refer in making decisions on the management and administration of media coverage. S. 986 now heads to the full Senate, but it is doubtful any action will occur before the end of the session. The House has not considered S. 986, but similar legislation has been introduced in the House.

Following a three-year pilot program allowing electronic media coverage of civil proceedings in six district and two appellate courts, the Judicial Conference recommended not to expand camera coverage in civil proceedings. Based upon data presented, a majority of the Conference concluded that the intimidating effect of cameras on some witnesses and jurors was cause for serious concern.

New Electronic Rules in Place

The federal Judiciary has taken another step into the electronic age with amendments to several Federal Rules of Procedure that authorize parties in a court case to serve various legal documents by e-mail, fax, or other electronic means.

The new provisions, which took effect December 1, 2001, expressly authorize the electronic exchange among parties of documents such as pleadings, motions, and briefs when parties have consented in writing. The rules also permit courts to serve court orders electronically if the parties consent.

The rules apply to all district and bankruptcy courts and are not limited to courts that accept electronic filing. The rules, however, do not extend to electronic service of process, which initiates litigation.

The amendments were approved by the Supreme Court and previously by the Judicial Conference and its Committee on Rules of Practice and Procedure.

Under the new provisions, a court need not amend its local rules to authorize electronic service among parties. But a local rule would be necessary to authorize use of a court’s own transmission facilities to serve documents.

Service by electronic means is complete on transmission unless a party learns that attempted service did not reach the person to be served, and electronic service is treated the same as service by mail for the purpose of giving parties an additional three days to respond.

The specific provisions amended are Federal Rules of Civil Procedure 5(b), 6(e), and 77, and Federal Rules of Bankruptcy Procedure 9006 and 9022. Civil Rule 5 is incorporated by reference into Criminal Rule 49 and Bankruptcy Rule 7005.

A Rules Committee note on the required written consent states that the "writing" may be electronic. Consent cannot be implied from conduct, such as a law firm listing e-mail addresses on its letterhead, but must be express. The committee note also encourages consents to specify their scope and duration, and says courts may "establish a registry or other facility that allows advance consent to service by specified means for future actions."

Judge Damon J. Keith (6th Cir.) (photo right); John Seigenthaler, founder of the First Amendment Center; and Chief Judge Deanell Reece Tacha (10th Cir.) (photo left), chair of the Judicial Conference’ Judicial Branch Committee, organized and participated in a recent meeting of judges and journalists of the Sixth Circuit. The day-long session was the third in a continuing series that is aimed at increasing the dialogue between judges and journalists. The programs are cosponsored by the First Amendment Center and the Judicial Branch Committee.

The Committee on Rules of Practice and Procedures wanted the rules governing electronic service to be parallel, to the extent possible, across all sets of rules. So relevant sections of Appellate Rules 25, 26, and 45 and Criminal Rules 45 and 49(c) are in the process of being amended in ways that will make their provisions similar if not identical.

In addition, Bankruptcy Rule 9014 is being amended to apply Civil Rule 5(b) to service of certain documents in contested matters. These amendments are on a track that would make them effective in December 2002.

To learn more about the rule-making process, click on Federal Rulemaking at the federal courts’ web site, www.uscourts.gov.