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No Lights, No Camera, No Action Should
Minnesota lawyers object to electronic media coverage in the state
trial courts? The Supreme Court this month held a hearing on whether
to modify current rules that constrain camera coverage of trial court
proceedings unless all parties consent. Neither proponents nor opponents
seem able to prove the benefits or the harms they argue would follow
if the rules were changed to give media greater access. The
party veto has meant that while coverage is allowed de jure, it is barred de facto.
Media lawyer Mark Anfinson explains, “In the 1980s, when the experiment
began, the media tried to get consent on a number of occasions, and
invariably were refused if the case at issue was a criminal case.
The more important the case, the more likely the request would be
refused. … By some time in the 1990s, the media just quit asking because
the rejection rate was so high.” Because
Minnesota’s lawyers have routinely opposed allowing cameras into the
courtroom, there has been virtually no case in the state—certainly
no high-profile criminal case—in the last quarter-century in which
the news media have been able to make video or audio recordings of
trial proceedings publicly available. Thus, the experiment has yielded
no data on which to evaluate the harms and benefits of such coverage.
Lucy Wieland, Hennepin County’s chief judge, put it bluntly: “The
experimental program has been a failure.”3 Expanded
Coverage Rejected Given
that failure, Minnesota’s news media believe it’s high time to try
a different experiment. In March 2007, Anfinson’s clients, the Minnesota
Joint Media Committee, Minnesota Newspaper Association, Minnesota
Broadcasters Association, and Society of Professional Journalists,
who together represent nearly all of Minnesota’s journalists, newspapers,
and radio and television stations, petitioned the Minnesota Supreme
Court to reconsider the rules. They’d like the judge, not the parties,
to have the power to allow electronic media coverage of trial court
proceedings. So
far, the news for the news media is not good. The Court referred the
issues raised by the media’s petition to its Advisory Committee on
General Rules of Practice.4 After spending several months researching
and holding public hearings on whether cameras should be allowed in
the state’s trial courtrooms, the advisory committee issued its recommendations
on March 31, 2008. Though the report is not binding—the Minnesota
Supreme Court will issue the final decision—16 of 19 committee members
recommended that the parties retain veto power, concluding that there
was simply “insufficient evidence to support relaxation of the current
rules.”5 While
the advisory committee could not evaluate any data from Minnesota
itself (because there is none), the 35 other states that allow the
press to use courtroom cameras on a regular basis offer a rich source
of information.6 Three of the states with the most generous coverage
rules are Minnesota’s immediate neighbors: Wisconsin, Iowa and North
Dakota. Photographic, audio and video coverage is permitted in the
vast majority of trial court proceedings in those states, subject
only to the discretion of the presiding judge. Indeed, Minnesota news
media often televise those proceedings; the Chai Vang trial in Wisconsin
is a recent example.7 Judges,
lawyers, and victim advocates from states that allow generous electronic
media access to the courts offered uniformly positive reports on their
experience to the advisory committee, but for every out-of-state witness
with courtroom camera experience who was in favor of allowing such
access, there was a Minnesota witness who was against it. Committee
member Judge Mel Dickstein asserts that “no single factor was the
driving force” behind the majority’s decision, but it was clearly
prompted in part by the vehement objections of a parade of anti-camera
prosecutors, defense attorneys, and victim advocates. A Chilling Effect Why
does the prospect of allowing cameras in the courts remain so vexing
to so many Minnesota lawyers, despite the apparently successful experience
of neighboring states that have allowed camera coverage for many years?
The most commonly cited reason is fear of a chilling effect on crime
victims and witnesses. Several lawyers and victim advocates worried
that if there is coverage of any court proceedings, victims and witnesses
will refuse to report crimes or testify even in cases in which cameras
are barred, believing, albeit incorrectly, that merely “being in court
subjects one to camera scrutiny.”8 Charles
Glasrud, Stevens County Attorney, said he feared that even those brave
enough to come forward would likely “self-censor” if cameras were
present.9 And Tom Frost, an advocate for child abuse victims, predicted
that even if the rules flatly forbade coverage of testimony by children,
the chilling effect would persist. “I don’t think that [such a rule]
addresses the issue of how a child will see television,” Frost said.
“They will not, in their limited ability, be able to understand that
it won’t affect them directly.”10 To
Judge Dickstein, such testimony was especially persuasive: “These
children and other members of the community won’t know that exceptions
exist or understand how they apply. Once they see cameras in the courtroom,
the televising will silence some of the most vulnerable members of
the community: children, the poor, the uneducated, the uninformed.”
Dickstein continues, “These advocates were saying that once cameras
are in the courtroom, and people see the images, that will have an
inevitable impact on people’s willingness to come forward. That impact
may be difficult to measure, but the lawyers and advocates have real-life
experience with victims and witnesses, and they know these people
will be reticent.” While
many of the Minnesota attorneys and advocates who testified were united
in their belief that electronic
coverage of trials would silence victims and witnesses, however, none
cited any firsthand experience
of losing reticent victims or witnesses in a jurisdiction that allows
such coverage. Dickstein concedes, “The committee saw no evidence
that there has or has not been a chilling effect on victims or witnesses”
in jurisdictions that do allow courtroom cameras. Judge
Steven Cahill, who coauthored the advisory committee’s Minority Report
and Recommendation, found the absence of such evidence persuasive.
Joined by two other committee members,11 Cahill urged that the current
rules be relaxed to give the trial judge, in limited cases, the power
to permit electronic coverage of court proceedings. Like the majority,
the minority would bar coverage in “in every conceivable case where
privacy is a concern.”12 That would include specific types of proceedings
(e.g., sex crime cases;
juvenile, child custody, and divorce proceedings; evidence suppression
hearings), and cases involving specific types of witnesses (e.g., relocated witnesses, undercover agents,
police informants).13 They would also forbid coverage of any juror,
and of any witness who objected.14 The only difference between the
two recommendations is that, in cases in which electronic coverage
was not otherwise forbidden, the minority would eliminate the parties’
veto and give the presiding judge discretion to grant such coverage. Cahill
believes it is habit—not evidence—that motivated the majority to recommend
what amounts to a continued ban on courtroom cameras. “Resistance
to change comes from fear of the unknown,” he says. But as the minority’s
report recounted, “No judge from any state where cameras have been
permitted in the trial courts addressed the committee, either in person
or in writing, to express any reservations about the concept or to
tell us of any problems encountered in their states.” Further, no
lawyer—no prosecutor, criminal defense lawyer, or civil litigator—and
no victim advocate from such a state “appeared before the committee
to lend credence to the concerns expressed by Minnesota prosecutors,
criminal defense lawyers, civil litigators or victim’s rights advocates.
If, indeed, problems are likely to arise in Minnesota as a result
of the introduction of cameras in the courtrooms, one would expect
that such problems would have arisen in other states” and that the
advisory committee would have heard about them.15 Media
attorney Anfinson contends that there is
no evidence of such problems—and if there were truly a chilling effect,
such evidence would be plentiful. “If there was such an effect, we
would see it,” he claims. “It could be measured and quantified. We’d
see a sudden drop in the reporting of crimes. But the chief justice
of Ohio, and the former chief justices of Florida and Iowa, all say
that they’ve experienced no such problems. Why would they say that
if there had been cases in which victims were deterred or prosecutions
disabled?” Anfinson
adds, “In the 35 states that do let in cameras, no one has detected
any adverse effect on victims or witnesses. I don’t buy the idea that
people wouldn’t have noticed. It’s a very convenient argument that
there’s this terrible but unmeasurable, undetectable effect that we
all have to accept on faith and therefore, we can’t let the public
see the judicial system at work.” Marna
Anderson, executive director of WATCH, a victim’s advocacy organization,
agrees that any chilling effect “is
trackable. For example, you can look at people who go to victim’s
services organizations but don’t go on to pursue action in the legal
system. In states that have recently allowed coverage, we can find
out from prosecutors if there’s been a change in victim or witness
participation since cameras were allowed, and to what extent.” The
sole victim’s advocate from Minnesota to testify in favor of trying
cameras in the courts, Anderson urged the committee to approve a pilot
project in which such research could be conducted—a proposal seconded
by Judge Wieland and 7th Judicial District Judge Michael Kirk, who
both volunteered to participate in such a program.16 The Soundbite Problem A
second common concern is that radio and television broadcasters will
offer only “soundbites” from a given proceeding, and only in high-profile,
sensational cases. Taken out of context, the advisory committee majority
concluded, these soundbites would not “generally foster greater public
confidence in the judicial system.”17 Judge
Dickstein explains, “We hope that having cameras in the courtroom
will help inform the public and contribute to the community’s understanding
of the difficult decisions that courts make on a daily basis, but
… what we see are soundbites in sensational cases, which do little
to inform the community.” Contends State Public Defender John Stuart,
“The broadcast media won’t develop both sides of a case that takes
two weeks to litigate; they’ll go for an image that will grab people:
pictures of someone crying uncontrollably, or a mutilated corpse.” While
credible studies show that broadcast stations often distill the majority
of their coverage of a day’s court proceedings into soundbites or
images of less than one minute each,18 that is the nature of the news
media. Both print and broadcast journalists filter events for the
public, offering analyses and summaries, peppered with quotes and
images they believe are significant, exemplary or powerful. Reporter
Kupchella notes, “There’s always a level of editing involved in story-telling,
whether a person is writing, or shaping a message by editing footage.”
“There’s
great value even in a single still photo that represents what’s going
on in court, let alone in a 20- or 30-second soundbite,” Kupchella
adds. “The viewer still has the opportunity to see for herself things
that can’t be described all that well: the scene, the evidence, the
emotions.” Moreover,
Kupchella counters, to presume that an image or a soundbite is necessarily
“distorted” because it is not shown in the context of the complete
proceeding “is to believe that the press inherently misrepresents
what’s going on simply because editing is involved. … It is, in fact,
increasingly more common to have unedited, streaming video of an event
shown on the Internet, and that could be an added value. But to say
that if you want to show the operations of the government, you must
do it in full, in its entirety, gavel to gavel—even the President
of the United States doesn’t get to have that.” “The
images don’t replace analytic pieces,” observes Anfinson. “You’re
not going to get a montage of clips without analysis, without a coherent
story focusing on what’s important. When the public can see, even
for 20 seconds, a horrible murderer or rapist being sentenced, that
has a terrific impact on the credibility of the system. It provides
a powerfully reassuring message that justice will be done, and a powerful
catharsis for the community to discharge its anxiety. There’s no substitute—and
it may have a deterrent effect on other bad guys to show justice being
done.." O.J. and Anna Nicole A
few witnesses feared that courtroom cameras will affect trial participants’
behavior, creating spectacles of the O.J. Simpson and Anna Nicole
Smith variety. Criminal defense attorney Jeffrey Degree declared,
“Frequently, when the media turns its spotlight on a case, the reality
is that people behave differently; cases get handled differently.
We can only imagine the extent to which that would be exacerbated
by the presence of cameras in the courtroom.”19 But
on this issue, the majority and minority agreed there was no need
for concern, as they heard of no such “grandstanding” from witnesses
who work in states that allow cameras.20 As the minority’s report
noted, “When one considers the many thousands of trials and other
courtroom proceedings which have likely been covered by media with
cameras in the courtroom in 35 states, and the fact that only two
of them [Simpson and Smith] appear to have shown the court system
in a bad light, it seems that the chances of anything of a similar
nature happening in a Minnesota courtroom are slim, indeed.”21 The Time Cost A
fourth concern is that disputes over whether the judge in a given
case should grant coverage will take too much time better spent elsewhere.
State Public Defender Stuart remarks, “Because of budget cuts, [the
State Public Defender’s Office is] losing 72 out of 440 public defenders.
We don’t have time to be litigating camera issues with TV stations,
and judges don’t have time either. Trying to help people get a fair
trial takes all of our time.” The advisory committee concurred: “Some
judge time, some prosecutor time, and some defense counsel time is
inevitably expended dealing with concerns about whether camera coverage
should be allowed, hearing disputes over this issue, and monitoring
media compliance with any court-imposed guidelines. A majority of
the committee concludes that these costs outweigh any benefits of
changing the current rule.”22 However, no committee witness from a
state that allows camera coverage at the judge’s discretion testified
that the time necessary to negotiate and adjudicate coverage disputes
constituted a major problem. Weighing Costs and Benefits The
real issue, and the underlying dispute between the advisory committee’s
majority and minority, concerns how to weigh the costs, actual and
feared, against the benefits of allowing electronic media coverage
of trial court proceedings. While
the majority report largely discounted those benefits, several witnesses
reiterated that the primary advantage of courtroom cameras is, as
Anfinson puts it, that the reporter’s “secondhand description of what
occurred is replaced with the real thing: the real sentencing, the
real testimony.” And while Stearns County Attorney Janelle Kendall
argues that the “real thing” is already on full public view—“Come
on down; the door’s open,” she offers—reporter Kupchella finds the
invitation disingenuous. “People work; they have families; they can’t
get to court from 9 to 5, but they still want to know what’s going
on in their communities,” he says. The electronic media are the public’s
eyes and ears, “the chief means by which the public gets information.”
Many
witnesses stressed that allowing members of the public to see for
themselves what really happens inside a courtroom would enhance public
confidence in, and foster respect for, the decision-making process,
assuring the public that justice will be done. Victim advocate Anderson
testified that WATCH’s “experiences in the courts support the notion
that with increased transparency and public access come increased
judicial and system accountability. And increased accountability leads
to a more effective and responsive justice system, and a more informed,
educated and involved public.”23 Other
witnesses suggested that judicial control over whether the media have
camera access inside the courtroom may temper media behavior outside
the courtroom. Ann Gustafson, coordinator of a Wisconsin victim-witness
assistance program, testified that victims and witnesses find the
media’s intrusiveness in the courthouse parking lot, at their homes,
or at the cemetery during a funeral “much more traumatic … than having
the camera in the courtroom.” In contrast, they find the professional
behavior of the media crews inside Wisconsin’s courtrooms, and the
presence of just a single camera that provides a feed that other media
can use, allow them to “focus on the proceedings and to more or less
forget about the media presence.”24 Similarly, former Polk County,
Wisconsin, attorney Mark Biller remarked, “It is often media behavior
outside of the courtroom, that we have no control over, that can be
the most detrimental … . We found that if the news media wanted a
camera in the courtroom badly, that gave us a mechanism for control,
not only of what was happening in the courtroom, but also … over what
was happening outside of the courtroom, because … the news media did
not want to lose their feed.”25 To
camera proponents, these benefits are far less illusory than the costs
that camera opponents fear. For example, they contend that while a
victim/witness chilling effect would indeed be a serious concern,
the absence of any evidence of such silencing in states that allow
courtroom cameras is enough to merit a testing phase in which such
an effect could be tracked, and the rules revised if the data so dictate.
Similarly, they find misplaced the concern that soundbites taken out
of context will distort the public’s view of the judicial system.
That is really a complaint about the press in general, rather than
the broadcast media in particular; the prospect that the media will
recount only part of the story, focusing only on a trial’s most sensational
aspects, looms even if courtroom cameras are banned. Like broadcast
reporters, newspaper reporters may be prone to telling the stories
they believe will capture public attention, and there is no reason
to believe that television and radio reporters who wait outside the
courtroom to get audio or video recordings from trial participants
tell a more complete story than they would were they recording inside
the courtroom. Short of unconstitutionally barring press coverage
of the courts altogether or censoring news media stories,26 it seems
the better approach would be to allow the public to see more of the story for itself. In
the end, whether you come out pro- or anti-camera seems largely to
depend on how you weigh the mostly unproved costs and benefits, and
whether you demand evidence that the costs are real, or that the benefits
are real. The advisory committee majority wanted camera proponents
to establish that electronic courtroom coverage will aid the “search
for truth and the administration of justice.”27 The minority put the
burden on camera opponents, finding that “a more liberal rule should
be adopted unless it can be shown that doing so is likely to degrade
the administration of justice.”28 Because it is nearly impossible
to prove either the feared costs or the asserted benefits of courtroom
coverage, the choice of where to place the burden becomes outcome-determinative.29 Stay Tuned By
the time this article goes to print, the Minnesota Supreme Court will
have held its own public hearing, scheduled for July 1, and should
issue its decision before year’s end. There is reason to believe that
the Court will be somewhat more amenable to opening the state’s trial
courtrooms to cameras than was its advisory committee: Minnesota’s
Supreme Court, as well as its appellate courts, routinely allow audio
and video coverage of their proceedings.30 And whatever the Court
decides, the public may soon be able to see recordings of trials in
Minnesota’s federal courts;
congressional legislation that would authorize cameras in all federal
appellate and district courts is pending.31 Should
the Court choose to allow cameras in state trial courtrooms on a more
liberal basis, trepidatious Minnesotans can take heart from their
neighbors’ experience. As Wisconsin prosecutor Biller testified, “We
allowed cameras into our courtrooms time and again under well-drafted
rules and strict control by the court. We never met the bogeyman.”32
s
2
Canon 3A(11)(c)(2) of the Minnesota Code of Judicial Conduct. 3
See Lucy Wieland, “Cameras in the Courtoom,”
available at http://www.mncourts.gov/district/4/?page=1995. 4
The advisory committee’s voting members were: Hon. Elizabeth Anne
Hayden (chair), Hon. Steven J. Cahill, Hon. Joseph T. Carter, R. Scott
Davies, Hon. Mel I. Dickstein, Francis Eggert, Jennifer L. Frisch,
Karen E. Sullivan Hook, Hon. Lawrence R. Johnson, Hon. Kurt J. Marben,
Hon. Kathryn D. Messerich, Hon. Rosanne Nathanson, Dan C. O’Connell,
Linda M. Ojala, Paul Reuvers, Timothy Roberts, Daniel Rogan, Hon.
Jon Stafsholt, and Hon. Robert D. Walker. 5
Recommendations of Minnesota Supreme Court Advisory Committee on General
Rules of Practice, Final Report 6 (Mar. 31, 2008) (“Advisory Committee
Report”), available at http://www.mncourts.gov/Documents/0/Public/Clerks_Office/Order_Gen_Rls_Hearing.pdf. 6
Radio and Television News Directors Association (RTNDA), Cameras in the Court: A State-by-State Guide (“RTNDA Guide”), available
at http://www.rtnda.org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php. 7
Chai Vang is the Hmong hunter convicted of murder and attempted murder
after shooting eight people while on a hunting trip in Wisconsin,
killing six and injuring two. 8
Advisory Committee Report at 7. 9
Testimony of Charles Glasrud before the Minnesota Supreme Court Advisory
Committee on General Rules of Practice (Jan. 11, 2008), available
at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511. 10
Testimony of Tom Frost before the Minnesota Supreme Court Advisory
Committee on General Rules of Practice (Jan. 11, 2008), available
at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511. 11
The two other members of the minority were Hon. Elizabeth Anne Hayden,
the committee chair, and Linda M. Ojala. 12
Advisory Committee Report at 20. 13
Proposed Minnesota Rule of General Practice 4.02(c)(v), (vi). 14
Proposed Minnesota Rule of General Practice 4.02(c)(i), (ii). 15
Advisory Committee Report at 22-23. 16
Testimony of Marna Anderson, Lucy Wieland and Michael Kirk before
the Minnesota Supreme Court Advisory Committee on General Rules of
Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511. 17
Advisory Committee Report at 8. 18 See, e.g., Wendy Pogorzelski and Thomas
W. Brewer, “Cameras in Court: How Television News Media Use Courtroom
Footage,” 91 Judicature
124, 129-31 (2007). 19
Testimony of Jeffrey Degree before the Minnesota Supreme Court Advisory
Committee on General Rules of Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511. 20
Advisory Committee Report at 6. 21 Id. at 23. 22
Advisory Committee Report at 7. 23
Testimony of Marna Anderson before the Minnesota Supreme Court Advisory
Committee on General Rules of Practice (Jan. 11, 2008), available
at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511. 24
Testimony of Ann Gustafson before the Minnesota Supreme Court Advisory
Committee on General Rules of Practice (Jan. 11, 2008), available
at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511. 25
Testimony of Mark Biller before the Minnesota Supreme Court Advisory
Committee on General Rules of Practice (Jan. 11, 2008), available
at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511. 26
See, e.g., Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986); Near v. Minnesota, 283 U.S. 697 (1931). 27
Advisory Committee Report at 7. 28
Id. at 20. 29
The U.S. Supreme Court has not determined that the 1st Amendment either
requires or forbids electronic media coverage of courtroom proceedings.
See, e.g., Chandler v. Florida, 449 U.S.
560 (1981); Nixon v. Warner
Communications, Inc., 435 U.S. 589 (1978). Thus, the standard
will be whatever the Minnesota Supreme Court decides makes the best
sense as a matter of policy. 30
See “Procedures for Requesting Cameras
in Minnesota Courtrooms,” available at http://www.mncourts.gov/documents/0/Public/Court_Information_Office/ Procedures_for_Requesting_Cameras_-_Revised.doc. 31
See The Associated Press, “Senate Panel
Endorses Cameras in Federal Courts” (Mar. 7, 2008), available at http://www.firstamendmentcenter.org/news.aspx?id=19772. 32
Testimony of Mark Biller before the Minnesota Supreme Court Advisory
Committee on General Rules of Practice (Jan. 11, 2008), available
at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item. RALEIGH HANNAH LEVINE is a professor at the William Mitchell College of Law, where she teaches and writes on 1st Amendment and Media Law issues. |
