Mar 20, 2016

Fed Courts Find Few Harms From Cameras, Ban Them Anyway

An evaluation (which, tellingly, is not online) of the federal courts' recently concluded test of allowing cameras to record some proceedings in selected courtrooms found that a majority of judges and lawyers surveyed agreed that the positive impact of the cameras outweighed the negative, according to Law 360 (sub. req'd).

But the Federal Judicial Center, which sets policy for the federal courts, still announced Tuesday (Mar. 16) that it would not recommend any changes to the general policy that still and video cameras are banned from most federal courtrooms.

The courts' test of cameras involved court-operated cameras covering selected civil proceedings in 14 federal trial courts. For a case to be recorded as part of the pilot program, the judge had to actively volunteer, and then solicit agreement from all the attorneys and parties involved.
The FJC report announcing the decision focuses on the negative impacts mentioned by the lawyers and judges involved in court proceedings that were recorded in the experiment, including the cameras "influencing the behavior of or putting stress on attorneys, witnesses, and jurors." Such concerns, the report states, "were particularly troubling to the Committee given the fact that the judiciary’s most important responsibility is to ensure the availability of a fair trial."

The report says that "59 percent of the pilot courts judges opined that video recording distracted witnesses at least to some extent, while 64 percent found that cameras, at least to some extent, made 'witnesses more nervous than they otherwise would be.'"

But it relegates to a footnote the breakdown of this 64 percent statistic: that 31 percent of judges -- almost half who said that there was any problem -- found this to be the case "to a small extent," 12 percent found this to be the case "to a moderate extent," and 21 percent found this to be the case 'to a great extent.' So, while the FJC report characterizes these results as showing about two-thirds of judges seeing negative impact of the cameras on witness, the results could as easily be characterized as two-thirds of judges (the 36 percent who did not see any negative impact, plus the 31 percent who saw only minimal impact, for a total of 67 percent) seeing little or no impact because of the cameras.

"In fact," Law 360 reports, "the majority of attorneys and judges said that the only serious impact recording could have would be to increase public access, understanding and trust in the judicial process."

The FJC report dismisses these positive evaluations, pointing out that it "is not surprising, given the fact that participation was voluntary both for the judges and the parties."

The report also cites the supposed lack of interest in camera coverage. It notes that of the 1,512 proceedings eligible to be recorded under the program, there were only 158 in which the judge,lawyers and parties all agreed to recording, and the video was posted online. And that of the 198 judges in the courts participating in the program, only 62 volunteered to participate, and only 32 had at least one proceeding recorded. This shows, the report says, "a fairly low level of interest in recording proceedings, both from the parties themselves and the judges."

There are two problems with this analysis. First, barriers to participation skewed the rate of participation. Second, it is important to note that whole point of the recordings -- and of the entire argument for cameras in the courts -- is based on the ability of the public to view court proceedings when they cannot be physically present in the courtroom, not on the desires or convenience of judges or lawyers.

The report addresses this as well, saying the lack of public interest is shown by the fact that the archived videos were viewed by only 21,530 visitors during calendar year 2014. But lack of public interest in most court proceedings does not mean that courtrooms are closed to members of the public who are physically present, and should not be used as justification for barring cameras. And making the courtroom video available online facilitates coverage of cases by other media, which can have a wider reach than an obscure page on the website.

Finally, the report cites the expense of the camera experiment, which it estimates at $989,526, including $458,586 in equipment costs, $435,236 for labor, and $95,703 for video hosting, and not including "court staff personnel time and effort associated with the pilot, which was extensive." This is out of an entire federal courts budget of $6.78 billion.

This is not the first time the FJC has reached this conclusion. A similar test of camera coverage from 1991 through 1994 led to a recommendation that federal courts allow televised proceedings. But the FJC rejected this recommendation, concluding that “the intimidating effect of cameras on some witnesses and jurors was a cause for serious concern."

Despite the FJC decision, three of the courts in the latest experiment will continue to record court proceedings.  Meanwhile, most federal trial courts make audio available through the courts' online PACER service, and a few other federal trial courts and some circuit courts of appeal allow camera coverage of their proceedings. And while the U.S. Supreme Court obsessively bans cameras, it does release audio recordings of its arguments. Most state courts allow cameras.

But after the FJC report most federal trial courts remain closed to cameras. In short, it is clear that the conclusory report was meant to justify continued bans on cameras in federal court. And it has achieved this goal. But the losers are members of the public whose access to the courts are unnecessarily limited by an arbitrary ban on cameras in most federal courts.


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