By Lyndon W. Vix
In 1954, Dr. Samuel Sheppard was tried and convicted in Cleveland, Ohio for the murder of his wife. The case was highly publicized; so much so that his conviction was subsequently overturned by the United States Supreme Court due to the prejudicial effect of the publicity and the manner in which the trial had been conducted.
One of the factors which led the Court to its decision was the pervasive presence of media in the courtroom during the trial. The Court described the atmosphere in and outside the courtroom in great detail and concluded that, “bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard.” Sheppard v. Maxwell, 384 U.S. 333, 355 (1966). The Court emphasized that, “[t]he carnival atmosphere at trial could easily have been avoided since the courtroom and courthouse premises are subject to the control of the court.” Id. at 358. In conclusion, the Court held, by a vote of 8-1, that “[s]ince the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom,” his conviction had to be vacated and the matter sent back to the state court for a new trial. Id. at 363. On retrial, Sheppard was acquitted.
It is often said that bad facts make bad law. The extraordinary and unprecedented circumstances of the Sheppard trial, and the Supreme Court’s reversal of the conviction, led the courts of many states to essentially close their doors to cameras. Opponents of media coverage pointed to the Sheppard case as an example of how courtroom broadcasts were intrusive, disruptive, and caused lawyers and witnesses to act unnaturally because they were performing for an audience. Proponents countered that limiting access to court proceedings was inconsistent with open government and harkened back to the days of secret trials so abhorred by the Founding Fathers that they crafted a Constitutional right to a public trial by way of the Sixth Amendment. Proponents pointed out that the Supreme Court had long held that “[w]hat transpires in the court room is public property.” Craig v. Harney, 331 U.S. 367, 374 (1947).
This trend toward closure began to reverse itself in the 1980s as states again considered how court proceedings could be broadcast to the public while still preserving the parties’ rights to a fair trial. Several factors contributed to this shift including the call for more transparency in government in the wake of the Watergate scandal, the greater pervasiveness of broadcasting through cable television and improved technology which made cameras in the courtroom less intrusive.
In 1988, the Kansas Supreme Court enacted Supreme Court Rule 1001, which provides guidance for media and the courts as to the conditions under which cameras may be utilized in the trial and appellate courts of the State. In the ensuing 23 years, cameras have become commonplace in Kansas courtrooms, with some high-profile cases, such as the 2002 Carr Brothers trial in Wichita, being broadcast nearly in full. On a national level, Court TV (now truTV) was founded in 1991 on the concept of providing live coverage of trials. In 1995, the telecast of the verdict in O.J. Simpson’s murder trial drew 51 million viewers—91% of all homes watching TV at that time.
Despite these advances, one forum in which cameras have continued to be unwelcome is the federal court system. Although the United States Supreme Court decides the most high-profile and significant cases in the country, the closest the public can come to being a part of the arguments presented to the Court is by listening to the archived audio recordings at the end of each week the Court is in session. In fact, in 1996 Justice David Souter famously told Congress, “I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body.”
This view prevails in the Court despite a 2006 Gallup poll in which 70% of those questioned said it would be a “good idea” to broadcast Supreme Court oral arguments. Bills have frequently been introduced in Congress that would require the Supreme Court to broadcast its hearings, but none have made it to the desk of the President, and there is some question as to whether such a mandate could survive Constitutional scrutiny (by the Supreme Court) or would be found to violate the separation of powers.
In the lower federal courts, the broadcasting of criminal trial has been prohibited by Federal Rule of Criminal Procedure 53 since 1944 and there appears to be no significant movement to change this rule. On the civil side, the Judicial Conference of the United States, which sets policy for the lower federal courts regarding such matters, adopted a prohibition in 1972 on “broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto.”
In response to the call for greater openness in the 80's, a three-year pilot project involving six federal district and two federal appellate courts was begun in 1991. At the conclusion of the program the Judicial Conference concluded that the intimidating effect of cameras on some witnesses and jurors continued to create cause for concern, and declined to approve a recommendation from the Federal Judicial Center (the research arm of the federal judiciary) to allow cameras in district court civil proceedings. The Judicial Conference did adopt a policy allowing federal courts of appeal to make their own decision as to the broadcast of appellate proceedings but, to date, only the Second and the Ninth Circuits have chosen to allows cameras in their courtrooms.
Recently, the Judicial Conference decided to revisit the issue and has implemented a new three-year pilot project involving 14 federal district courts. The District of Kansas is one of the districts participating, with Judges Vratil, Marten, Murguia, Robinson and Melgren agreeing to be a part of the project. During the three year pilot period, civil bench and jury trials, as well as civil motions hearings, will be recorded by local court personnel and published to a provider website where they will be available for viewing or download by parties, counsel, and the general public. Several courts have already recorded proceedings, which can be viewed at https://www.uscourts.gov/Multimedia/cameras.aspx. All parties must consent before a proceeding will be recorded and the presiding judge may also prohibit the recording or subsequent broadcast of any part of proceedings. The Federal Judicial Center will conduct a study of the pilot, and produce interim reports at the end of its first and second years.
The fact that the federal judiciary is still wrestling with the issue of cameras in the courtroom is support for the adage that technology evolves faster than the law. Technology, meanwhile, continues to move forward, as is well-illustrated by the fact that the Kansas Supreme Court is currently considering changes to Rule 1001 that would clarify the right of the media to provide real-time updates from the courtroom via Twitter or other social media. Stay tuned.