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Federal Pilot Program on Courtroom Cameras Goes Live

By Oran F. Whiting, Litigation News Contributing Editor – July 26, 2011

Fourteen federal district courts are now participating in a three-year, national, digital video pilot program that began on July 18, 2011. The program will evaluate the use and effect of video recordings of proceedings, and the publication of those recordings, in cases before more than 100 judges.

The Judicial Conference of the United States approved the pilot program at its biannual meeting on September 14, 2010. On July 8, 2011, the Federal Judicial Center and the Committee on Court Administration and Case Management (CACM) of the Judicial Conference announced the districts selected to participate in the program on a voluntary basis. The participating districts include judges who favor the use of cameras in the courts and those who are “skeptical of” their use.

The Federal Judicial Center will conduct a study of the pilot and produce interim reports at the end of the first and second years. The study may include a national survey of all district court judges’ views on cameras in the courtroom.

Pilot Program Guidelines
The CACM promulgated guidelines for participating courts [PDF] on June 8, 2011. The guidelines include general provisions for digital recording, selection of cases, use of cameras and equipment, and storage of recordings.

Only civil proceedings may be recorded. The district courts’ chief judges will generally suggest cases for participation, at the trial judge’s discretion, though parties to a case may also ask to participate in the program. All parties must consent to the recording of each case proceeding.

Judges must inform all participants that a proceeding will be recorded, and may hold non-recorded hearings to address objections by parties, witnesses, or others. Decisions to grant or deny requests to record a proceeding are not subject to appellate review.

The courts will maintain sole control over the cameras and equipment at all times. Either the court or a court’s contractor must own the cameras used. Other entities or persons may not record proceedings.

Judges may stop recordings at any time for any reason considered necessary or appropriate. The guidelines do not permit recording of voir dire, juror activities, attorney-client privileged discussions, or sidebar conferences.

There will be no live broadcasts of courtroom proceedings. Instead, “[u]nless the presiding judge deems otherwise,” recordings will appear online within a few hours of the proceeding. Each district is also permitted to maintain a link to the recordings on its local district site.

Public Perception of the Courts
First Amendment lawyers praise the pilot program for exposing the public to more of the judicial process. “From the ABA’s perspective, we should be concerned about the public’s confidence in our judicial system. If the public does not see the system in action or is not exposed to the system, it will lose confidence and assume that money and power control the system,” warns George Freeman, New York City, cochair of the ABA Section of Litigation’s First Amendment and Media Litigation Committee. Freeman believes a more open process will inspire a higher degree of public confidence in the legal system.

“As a First Amendment lawyer, I believe any move to make legal proceedings more open to the public is a positive,” agrees Dori Ann Hanswirth, New York City, cochair of the Section of Litigation’s Trial Practice Committee.

Freeman posits that the pilot program should have been implemented sooner. “It’s about time. Federal courts are way behind the states. It’s the twenty-first century. There is no reason whatsoever for the courts not to have cameras. The technology has advanced so that the cameras are not intrusive,” he says.

Considerations for Litigators
Practitioners’ views on the effects of cameras in the courtroom appear to depend, in part, on their prior experiences with recorded proceedings. For example, litigators experienced with cameras in the courtroom do not foresee the pilot affecting trial preparation or strategy. “We’ve had cameras in the courtrooms in Kentucky since I started practicing 17 years ago,” offers Bart L. Greenwald, Louisville, KY, cochair of the Section’s Commercial and Business Litigation Committee. “I have found them to be an excellent teaching tool for me but have not found that they affect my trial strategy or my witnesses one bit. The cameras just provide a record for appeal.”

Kentucky Rule of Civil Procedure 98 [PDF], procedures for videotaped court proceedings and appeals, includes the videotape as part of the record on appeal. Under 6(f) of the Guidelines, digital recordings “from the pilot (as well as any transcripts made from the recordings) are not the official record of the proceedings, and should not be used as exhibits or part of any court filing.”

Others disagree. “Cameras are the sideshow that will take over the circus,” says Christina L. Dixon, Denver, cochair of the Section’s Trial Evidence Committee. Dixon believes that the presence of cameras will significantly impact her preparation for and actions at trial. “Age old instructions to the jury must be highlighted times 10 if cameras are present.”

Greenwald and Dixon agree the addition of cameras typically will have less effect on preparation and strategy for bench trials, as opposed to jury trials. “Depending on the players, one would already expect more grandstanding before a jury than a judge,” offers Dixon.

Cameras in Other Federal Proceedings
Rule 53 of the Federal Rules of Criminal Procedure generally prohibits cameras or recording of criminal proceedings in the federal district courts. Since 1996, the U.S. Courts of Appeals have had discretion to permit recording and publication of non-criminal proceedings.

Two federal appellate courts—the Second and Ninth Circuits—permit broadcasting of oral arguments and have instituted certain procedures for litigators. The Ninth Circuit has a form “Application for Permission to Photograph, Record or Broadcase from the Courtroom [PDF].” The Second Circuit offers its Guidelines Concerning Cameras in the Courtroom as an appendix to its Local Rules.

The U.S. District courts currently participating in the pilot program 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
Western District of Washington

Keywords: litigation, trial evidence, video pilot program, Federal Judicial Center, Committee on Court Administration and Case Management (CACM)


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