Legislative Memo: Cameras in the Courtroom

Fifteen years ago, the Board of Directors of the New York Civil Liberties Union voted to modify its policy on cameras in the courtroom from one of support, to the current position of qualified opposition.

The shift in policy reflected a balancing of competing constitutional rights – the rights related to freedom of the press and a criminal defendant’s right to a fair trial – and resulted in what the NYCLU considers a fair and equitable solution to the potential conflict.

Under the proposed legislative scheme, this balancing of rights and interests requires that a criminal defendant must be afforded the right to preclude the recording of court room proceedings.

We urge the legislature to reject the proposed legislation absent such an amendment. The principle of a free press and the guarantee of a public trial afford the general public and the news media the opportunity to attend and to report on all phases of civil and criminal trials unless a compelling state interest justifies a limited exclusion in narrowly defined circumstances.

While neither the public nor the media have a right to use electronic recording or broadcast devices in civil or criminal court proceedings, New York State may choose to allow the use of such devices in a courtroom¹ and has done so, in fact, over the course of a decade, from 1987 to 1997.

The sponsor’s memorandum supporting A.3950/S.2067 recognizes the public interest in making judicial proceedings more accessible and in providing for enhanced public scrutiny of court proceedings; however, the sponsor’s findings do not take into account the potential harm to the integrity of the judicial process that may be caused by the electronic recording and broadcasting of court proceedings.

Following the state’s most recent experiment in the use of cameras in courts (which was permitted by legislative enactment), the Feerick Commission surveyed judges regarding the experiment. The survey results demonstrated great concern among nearly half of the judges surveyed that the presence of cameras in courtrooms posed a potential threat to judicial independence and that television coverage of court proceedings distracted witnesses.

More than one-third of the judges surveyed said television broadcasting caused them to render rulings they would otherwise not have issued. There is, however, a dearth of scientifically sound empirical research regarding the effects and consequences of permitting the audiovisual recording and broadcasting of court proceedings.

(And for this reason, it seems ill advised to pass this legislation without a date of termination and without a mandated study by independent experts regarding the impact of cameras upon judicial proceedings.)

Given the potentially disruptive or prejudicial impact upon defendants in criminal proceedings and upon the judicial system, the state must take more affirmative measures to ensure that the use of electronic recording or broadcast devices do not compromise a criminal defendant’s right to a fair trial.

Other parties, including the state in criminal cases, do not have the same interests as a criminal defendant and should not, therefore, have the same veto power over the use of electronic recording and broadcast devices in the courtroom.

These parties should, however, be permitted to demonstrate that the use of courtroom cameras should be restricted in particular circumstances for narrowly focused reasons. Any authorization for the use of recording or broadcast devices in court proceedings should provide an opportunity for parties other than a criminal defendant to object to their use, in whole or in part, on the ground that they will prejudice the fairness or accuracy of the proceedings or otherwise violate their rights.

To its credit, the proposed bills seek to address some of these concerns by restricting or prohibiting audio¬visual coverage of children (except in the case of criminal trials and certain family court proceedings); of the families of parties in a criminal trial; and of individuals who have been the victims of sex offenses.

The proposed legislation gives victims and non-party witnesses the right to have their images or voices obscured during audio¬visual coverage. The bills also prohibit audio-visual coverage of the jury, with the exception of audio coverage of the foreperson delivering the verdict.

However, for the party who has the most to lose — the defendant — the bill does too little to protect his or her right to privacy and to a fair trial. Surely, in a judicial system that presumes a defendant is innocent until proven guilty, any procedural protections of privacy afforded participants in a judicial proceeding must be extended to the defendant as well.

The NYCLU does not take an absolutist position in opposing the use of electronic recording or broadcasting devices in the courtroom; however, as an advocate for civil liberties, the organization cannot support the use of such devices in court proceedings without providing a defendant the right to veto cameras at his or her trial. For this reason, we must take a position of qualified opposition to A.3950/S.2067.  

¹ Because we assume that the state would not authorize the use of recording and broadcast devices in family court or in matrimonial, competency and like proceedings, we do not address whether the parties to these proceedings have a privacy right entitling them to exclude these devices.