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Fall 2007 Bulletin
Court Access: Federal Law would Allow Cameras in U.S. Courts
The House Judiciary Committee passed the Sunshine in the Courtroom Act (H.R. 2128) Oct. 22, 2007, despite a lukewarm reception from federal judges and prosecutors at a September 27 committee hearing.
The bill would not force judges to allow cameras in federal trial courts, but it would give them the discretion to allow cameras in their courtrooms so long as the presence of cameras does not violate either party’s due process rights. At the trial level, the bill allows witnesses to request that their identity be obscured and prohibits filming jurors. The provision allowing cameras in district courts will expire after three years, but the appellate provision would remain in place.
Pursuant to a March 12, 1996 resolution of the Judicial Conference of the United States, Circuit Courts of Appeal may vote to allow cameras in courtrooms. Both the 9th Circuit and the 2nd Circuit currently allow cameras in their courtrooms.
The new law would give a “presiding” appellate judge the authority to allow cameras into a courtroom over which that judge presides. In the case of a three-judge circuit court panel, the most senior active judge would make the decision; when a circuit sits en banc, the chief judge would decide. Chief Justice John Roberts would decide whether to allow cameras into U.S. Supreme Court proceedings.
“Cameras in the courtroom offer an alternative – an unedited, unfiltered, unvarnished glimpse of the judicial process as it really is,” said Rep. Bill Delahunt (D-Mass.), one of the bill’s sponsors, in an October 25 news release issued by his office. “The goal of this legislation is to enhance our confidence in the American justice system.”
At the September 27 hearing, one U.S. district judge opposed the measure as a potential threat to fair trials, while another praised the bill as a way to provide meaningful access to the judicial system and educate the public about how courts work.
Judge John R. Tunheim from the District of Minnesota opposed the bill on behalf of the Judicial Conference of the United States. “Appearing on television could lead some trial participants to act more dramatically, to pontificate about their personal views, to promote commercial interests to a national audience, or to increase their courtroom actions so as to lengthen their appearance on camera,” he said, according to the transcript of the hearing.
Tunheim also expressed concern about a camera’s potential to intimidate witnesses, litigants, and jurors. He cited a 1994 Federal Judicial Center study that found 64 percent of judges who had presided over trials where cameras were present said “witnesses were more nervous in the presence of cameras, [and] many reported witnesses being intimidated or distracted by the cameras.”
The study found 46 percent of judges believed witnesses were less likely to appear if they knew cameras were present, and 41 percent of judges believed cameras distracted witnesses, he said.
“The concern about the impact on witnesses is at the heart of the Judicial Conference’s opposition to the bill,” Tunheim said. “Despite the fact that the bill gives the trial court judge discretion over permitting cameras – an inclusion which the conference appreciates – it is impossible to determine in advance how witnesses will react to the presence of cameras.”
Judge Nancy Gertner, District of Massachusetts, spoke in favor of the bill. “I come to this issue both as a judge and … as a former litigator; I was a trial lawyer for 22 years and participated in state court trials which were televised,” she said, according to the transcript.
Gertner said cameras maintain meaningful access in the modern media climate where people get their news from television and the Internet. Cameras also paint a true picture of the judiciary and instill public confidence.
“I believe that we’re at a point where judges in one sense have to prove their legitimacy, have to demonstrate their legitimacy; it’s no longer assumed by the public,” Gertner said. “And I would rather prove that legitimacy in my own voice with my own face and my own words than have my words described by a late night TV anchor.”
During questioning, Gertner responded to Tunheim’s assertions that cameras intimidate and distract witnesses. She said technological advances since the 1994 study was conducted have made cameras less intrusive.
She also said the media generally cover only high-profile trials. “I think that the question is, are witnesses more nervous in high-profile cases because of the presence of the camera or because the case is a high- profile case? And I’m not sure that one can disentangle one from the other... .” she said.
The House Judiciary Committee ordered the bill reported by a vote of 17 to 11. It has not been referred to any additional committees.
- Michael Schoepf, Silha Research Assistant
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