Federal civil trials: (possibly) coming to a TV screen near you

Monday, June 13, 2011

WASHINGTON — Starting July 18, you may begin to see news reports containing video footage from civil trials and proceedings taking place in federal courts around the country. But you may not see many of them, and you may not see them very well.

A committee of the Judicial Conference last week issued the rules that will govern a three-year experiment with camera access to 14 selected federal district courts from Chicago to Guam. It mirrors a similar test undertaken in the early 1990s. Aside from that experiment, cameras have not been allowed in federal trial courts for news coverage — unlike the practice in most states, where cameras have allowed in courts for years or decades.

But the rules for the federal pilot project are fairly restrictive, causing some to wonder whether it will result in enough coverage of proceedings to test the impact — or non-impact — of cameras in the federal courts.

The main hurdle is that under the rules, both parties must consent to the recording, and only civil — not criminal — proceedings can be aired. Many states, as well as the federal appeals courts that allow cameras, do not give the parties veto power over broadcast coverage. Other provisions also may limit the test’s effectiveness, including the fact that the cameras will be owned or operated by the courts, not the news media. Again, most states and the federal appeals courts that allow cameras envision the cameras being operated by the news media, not the court.

No live broadcast will be allowed, and the rules establish no technical requirements for the quality of the video. As a cost-cutting measure, the rules even suggest that the courts use cameras they already have on hand for other purposes.

C-SPAN general counsel Bruce Collins criticized the guidelines for giving judges and the parties too much power over the process.

“The judges are showing no courage in this, compared to the states,” said Collins. “We ought to be able to cover court proceedings the way we cover congressional hearings. What are they afraid of?”

But Davis Wright Tremaine partner Thomas Burke said he was not surprised by the “cautious approach” reflected in the rules, given the federal courts’ longstanding reluctance to allow cameras.

“The federal courts are never going to go from a crawl to a flat-out run” on this issue, said Burke, who has represented media organizations in disputes over camera access to trials.

Burke saw one advantage in the way the experiment is being set up: media use of the video will not require broadcast camera crews to actually be in the courtroom from gavel to gavel. The news media will be able to draw footage for their coverage from the courts’ online video file.

But Burke is troubled by the lack of technical requirements in the experiment. If the quality of the video is insufficient for the news media to broadcast, the experiment will be weakened, he said, though he added that in the end broadcasters may just “take what they can get.”

Kathleen Kirby, a lawyer for the Radio Television Digital News Association, said she had “mixed emotions” about the rules established for the program.

“On one hand, we haven’t had coverage of federal courts at all, so any baby steps in the right direction I welcome,” Kirby told the Reporters Committee for Freedom of the Press. “On the other hand, given how restrictive these rules appear to be, I wonder if they’re going to get a meaningful sample so they really can evaluate the effects of camera coverage on federal court proceedings.”

The Judicial Conference voted last September to launch the pilot project. The experiment in the early 1990s had generally positive results, but then the excesses of the O.J. Simpson trial set back the campaign for cameras in federal courts for years. The new experiment comes after pressure from Congress, which has considered several bills requiring camera access in federal courts. Since 1996, the federal appeals courts have been allowed to permit broadcast coverage at their discretion, but only the 2nd and 9th Circuits have voted to do so. The Supreme Court’s own longstanding ban on cameras continues without change.

Under the new rules, even if neither party to the proceeding vetoes the recording, the judge will have final discretion on whether it is recorded. The guidelines also state that “it is not intended that a grant or denial … be subject to appellate review.” Moreover, the judge must inform court participants that a proceeding is being recorded, and can impose additional restrictions on the recording. No photos of jurors, jury voir dire, or sidebar conferences will be permitted.

In addition, the rules say that the presiding judge must have the ability to switch off the coverage at any time and can do so to protect the rights of parties and witnesses, the dignity of the court, or “for any reason considered necessary or appropriate” by the judge.

The announcement of the rules also listed the courts that have been selected for the experiment. More than 100 judges are assigned to the participating courts, the announcement said, “including judges who favor cameras in court and those who are skeptical of them.”

The court districts selected are: Middle District of Alabama, Northern District of California, Southern District of Florida, District of Guam, Northern District of Illinois, Southern District of Iowa, District of Kansas, District of Massachusetts, Eastern District of Missouri, District of Nebraska, Northern District of Ohio, Southern District of Ohio, Western District of Tennessee, and Western District of Washington.

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