By Robert A. Clifford
Clifford Law Offices
A pilot program allowing cameras in Illinois' 23 circuit courts on a limited and experimental basis in civil and criminal cases was announced in January. Illinois Chief Justice Thomas Kilbride has long been applauded for supporting transparency in the courtroom and educating the public.
The announcement came on the heels of a pilot program allowing cameras in federal court for civil trials in 14 districts and includes up to 150 individual judges around the country. The Northern District of Illinois is the largest district to participate.
Last September, the Judicial Conference authorized the three-year pilot project to better evaluate the effect of cameras in the courts. Video recordings will be available at uscourts.gov. Trials will not be streamed or televised live, as we recall the O.J. Simpson case or infamous trials in Florida's state courts. Instead, it will be saved for later access, which will allow for editing, if necessary.
It comes with conditions: All parties and the judge must agree, three or four cameras would be set up in a courtroom at the Dirksen Federal Courthouse — one directed at the attorneys' podium, one at the witness and, if the judge allows, one on the bench. An additional inconspicuous camera may be pointed at the counsel tables. No cameras will show jurors.
The judge may terminate the recording at any time. The judge may stop the recording "to protect the rights of the parties, and witnesses, and the dignity of the court; to assure the orderly conduct of proceedings; or for any reason considered necessary or appropriate by the presiding judge," the guidelines say.
Courts that participate in the project must provide study-specific data for the Federal Judicial Center on behalf of the Court Administration and Case Management Committee (CACMC). Everyone involved in the experience, including jurors, will be interviewed to see if the cameras had any impact upon ensuring that all parties received a fair trial. At this writing, no trials have been recorded.
Some may recall that a similar three-year pilot project started in 1991 in the U.S. Courts of Appeals for the 2nd and 9th circuits and several U.S. district courts. In 1994, the Judicial Conference considered a report and recommendation of the CACMC that recommended expanding camera coverage of civil proceedings. "Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program," a Federal Judicial Center evaluation says. But a majority of the Judicial Conference still declined to authorize recording or broadcasting of any proceedings. It will be interesting to see if witnesses and jurors report back with a different take now that technology has so infiltrated our lives.
The pilot project is a good idea, said Sen. Dick Durbin, D-Ill., and Sen. Chuck Grassley, R-Iowa, ranking members of the Senate Judiciary Committee, who introduced legislation in December. The Cameras in the Courtroom Act of 2011 would require open proceedings of the U.S. Supreme Court to be televised. The timing of bringing this issue to light is intentional: Grassley wrote a letter to U.S. Supreme Court Chief Justice John G. Roberts asking that hearings scheduled for March 26 to 28 on the case of the federal health-care reform law be televised.
Grassley, who has repeatedly co-sponsored such legislation, wrote, "The decision in this case has the potential to reach every American. The law is massive in size and scope. The effect of the law, and the court's decision, will reverberate throughout the American economy." He goes on to note the "momentous" constitutional questions at issue as well as the ability to make the cameras "simple and unobtrusive" given modern technology.
At a hearing in December before the Administrative Oversight and the Courts Subcommittee, Grassley testified about a poll released last year that revealed that "62 percent of Americans believe that they hear too little about the workings of the Supreme Court."
The chairman and chief executive officer of C-SPAN, Brian Lamb, also wrote a letter to Roberts requesting if, being "respectful of the process," his station could cover the case. Roberts has not responded to either request.
The fraud case involving former Enron CEO Jeffrey Skilling, the Philip Morris case for fraudulent advertising, the Millennium Bomber's foiled 2000 attack on Los Angeles International Airport and others were denied same-day audio releases. Roberts released audio recordings the same day or oral arguments for about 20 cases including the Guantanamo cases, but in 2010 the court's policy changed to allow only audio recordings of its proceedings that are posted at the end of the work week — too late for most journalists' deadlines.
Now that its newest member, Justice Elena Kagan, has said publicly that cameras would bring a new confidence to the courts, it remains to be seen if the discretionary authority of the court changes. She replaced Justice David H. Souter, whose famous words still ring in the hallowed halls: "The day you see a camera come into our courtroom, it's going to roll over my dead body."
Most are waiting for the results of the current pilot project. The results cannot be underestimated, unless Congress acts first.