The Modern Public Trial:
Issues surrounding Cameras in the Court,
Commercial Media and
Epistemological Relevance
“If we had God booked and
O.J. was available, we’d move God.”
CNN’s Larry King
By Peter Konefal
With much of lawmaking and regulation, a range of application exists between the law and its interpretation and execution in the judicial system. The case for or against camera coverage of court proceedings usually involves a concession against one of several constitutional laws meant to equally weigh the right of the defendant to a fair trial and the imperative of promoting public faith and transparency in the judicial system. Both the US and Canadian Court systems have recognized the balance between these two competing interests, although in general Canadian courts are far more averse to courtroom television coverage than US courts have been . In and of itself, the issue of whether a camera should or should not be allowed to record court events is usually fairly straightforward. It is how the media deals with those images, what audiences they reach and how the coverage is portrayed and selected that has greater potential for aggravating the judicial process. It might be possible to see how the issue of cameras in the courtroom might become a routine procedure if those recorded images were used strictly for post-trial educational purposes, and yet even that concession is problematic, as will be seen. Its political and social affects are really apparent and amplified when it becomes a portal through which emotional and vivid trial moments will be broadcast to a potential audience of millions. By elevating the primary purpose of the courts (fairly determining the guilt of the accused), above secondary concerns whether they are to provide education to the public, or entertainment for the masses – become superfluous and involve dangerous compromises.
Perhaps the strongest argument for the inclusion of cameras in the court is the constitutionally enshrined principle of a public trial. Even the opposition to courtroom television coverage agree that public trials are threatened if only a few members of the public are allowed access to the judicial process. The most common and pressing case for television coverage of Canadian court proceedings is often S(2b) of the fundamental freedoms in the Canadian Charter of Rights and Freedoms invoking freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. The US Constitution First Amendment also states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Given these rather lofty and sweeping statements its not difficult to see how free media and public access to the judicial arm of the government is necessary and crucial to ensure and safeguard transparency and freedom of access and information in a democratic society. The idea that the workings and implementation of justice can be conducted behind closed doors is anathema to a free and democratic society. And yet where does the responsibility lie in ensuring that the courts are democratic? The power and weakness of democracy is in the public’s willingness to educate and empower themselves.
Although the media have a powerful advantage in obtaining information compared to the average citizen, they aren’t necessarily motivated by a concern for public service. Why is the argument made that television is the ultimate pathway to public inclusion and knowledge of the court system. Isn’t it just as valuable to listen to an audiotape of a trial? The assertion that a modern ‘public’ trial can only be had with televised court proceedings is skewed toward a public that only understand filmic representation. Logic and deduction are designed to be at the heart of a criminal trial, and by rewarding the arena of subjectivity and emotion a higher place in that hierarchy; we are dangerously misconstruing what it means to have ‘public’ access to a criminal trial . R.W. Power describes the world-wide-broadcast 1982 Von Bulow trial in just those terms:
“…the camera while now unobtrusive in the courtroom in the wake of improved technology permitted viewers to see von Bulow’s every blink and wrinkle….the audience scrutinizes the face and hands for reaction – a momentary tightening of the fingers, no perceptible change in facial expression, narrated for those viewers who were momentarily distracted at the vital instant, or who want their own impressions verified or corrected” . It is doubtful that this the purpose for which ‘transparency’ of the courts was intended, and the contention that that a public trial only really exists if it reaches an audience of millions on TV ignores the validity of audio and written record.
Given that courtrooms cannot realistically provide enough seats for the public wishing to attend, an alternative must be proposed to accommodate constitutional law stating in the US that the ‘..accused shall have a right to a speedy and public trial’, and in Canada “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” (Cohn, 1998 p. 39) . Although tape and written court record are both compelling alternatives, do they have the same comprehensibility and appeal to a national audience? Probably not. In an American case of national urgency and importance such as in the 1984 CBS News v. US Military libel trial in which the US military was alleged to have understated military losses in the Vietnam war, no television media was present . Is it fair to say the trial was public to the extent that 70 members of the public were included? How incendiary could that trial have become if the issue of government and military conspiracy and collusion had become a public fact? Clearly ‘democracy’ and ‘transparency’ could have been advanced by a closer inspection and understanding of the hearing and its results, especially considering many critics’ contention that real conflict between the US government and the private media is almost nonexistent .
A second aspect of the right to a public trial is that the public and media are able to act as a counterbalance to possible indiscretion on the part of the judge. Judges who impose undue restrictions on the constitutional rights of the defendant or hamper due process in any manner are much less likely to do so under the constant supervision of a national broadcast feed . Although judges are allowed to prohibit television cameras if they impede the dignity and proceedings of the court, such a prohibition would require a justification and warrant .
Another element of consideration, again already alluded to, is the freedom of the press to gather information, upheld in both US and Canadian constitutional law. Freedom of the press to publish and broadcast information is forfeit without a commensurate freedom to gather information - which implicitly includes court proceedings. Within the domain of discretion and allowance granted by the judge, “…the press must be free to comment upon court proceeding to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of pubic scrutiny” Edmonton Journal v. Attorney General for Alberta. (Cory J.). In this last case, presided over by Judge Cory the right of individual privacy took precedence over the freedom of the press to divulge personal information to the public . And yet, freedom of the press can exist without permitting visual record of the events taking place in court.
Before investigating how and why television complicates the constitutional process governing the conduct of a fair trial, the relevant laws informing the process are worth mentioning . In both Canadian and US law, an impartial jury is necessary to provide for the fair prosecution of the accused. A trial must also be conducted speedily and publicly which fulfills a variety of purposes including “…[assuring] the criminal defendant a fair and accurate adjudication of guilt or innocence, [providing] a public demonstration of fairness, [discouraging] perjury, the misconduct of participants, and decisions based on secret bias or partiality. The Court has also expatiated upon the therapeutic value to the community of open trials to enable the public to see justice done and the fulfillment of the urge for retribution that people feel upon the commission of some kinds of crimes” .
However, while both constitutions entail the mandate of a ‘public’ trial, neither universally state that television substitutes for a lack of public inclusion, and both confer the final decision and authority of whether a trial is to be conducted publicly on the judge. If the judge can fairly assert, based on evidence, that the defendants right to a fair trial will be compromised by media publicity and public access and no ‘reasonable alternative’s can be found then the court can be completely closed to ensure as fair a trial as possible.
Although there are many examples of trials in which the media have served a detrimental effect, several particularly notorious televised trials have chastised the legal establishment and created solid opposition to any prospect of cameras in the courtroom. These are the Paul Bernardo Trial (1995), the OJ Simpson trial (1993), the Rodney King trial(s) (1992, 1993), the Billie Sol Estes trial (1965), the Claus von Bulow trial (1982) and many others. Chiefly the complaints that arose from these trials was that far from the televised coverage serving as enlightening and educational material, they became prime time ‘reality TV’ drama. Served up by media outlets with no real interest in public education, they became yet another forum for television delivers best. Incoherent, cheaply produced mass-entertainment starring sports stars, corrupt attorneys, racist cops, sexual deviants and murderers spliced with commercials and flashy production values to satisfy the deep seated voyeurism of millions of people worldwide . The spectacular and unusual nature of these trials mandated that they be covered exclusively to the detriment of more realistic, everyday and arguably more educative trials. At one point the OJ trial time slot conflicted with the US presidents state of the union address, ‘forcing’ some television stations to split the screen and broadcast both! So given the potential mire of publicity that can arise with high profile cases, what threats exist to the conduct of a fair trial?
For one, television is criticized as having an undue and unwelcome affect on witnesses called to the stand. A caveat to mention beforehand is that witnesses may potentially present a more accurate and credible testimony if they know or can be reasonably assured that a potentially large audience will see their testimony . However, the converse – that being called to the stand may cause potential witnesses not to testify at all, is far more deleterious an affect than any potential benefit. This issue can become especially worrying in sexual abuse cases involving fragile witnesses who are already terrified by the prospect of testifying in public . In the Menendez twins murder trial, defence attorney Jill Lansing voiced concerns that an important witness who refused to testify might have done so due to the case’s publicity and political issues surrounding consequences of her appearance on TV (Cohn 68). Conversely, a trials ‘speediness’ and due process can be interfered by unscrupulous ‘volunteer’ witnesses who embellish and falsify stories in order to be given a brief part in the national TV drama that televised trials often become (Cohn, 68). Even witnesses who have a worthy testimony may be tempted to exaggerate and fortify their stories unnecessarily on behalf of the television cameras.
A second major complication involved by television media coverage of court events is the degree to which justice is obstructed in pursuit of viewer ratings, entertainment value and other criteria that have nothing to do with justice. As the media pursue commercial aims, they often broadcast or publish incriminating evidence that isn’t admissible as court evidence and nonetheless creates a public body usually prejudiced against the accused. Jury prejudice and concern over ‘taint’ of the jury pool has existed long before the advent of television, although the difficulty in obtaining an impartial jury has certainly been heightened by the ability to broadcast to entire towns and nations. In cases of overwhelming press coverage, extreme measures are often required to ensure a balanced, un-prejudiced and impartial jury tries the defendant with little or no access to prior (and current) media hype or inadmissible evidence. Measures taken to ensure that the jury remains sacrosanct and untainted include extensive voir dire , sequestration , venue changes , trial continuances or delays , gag orders , publication bans , and camera bans (see footnotes for an explanatory note on these measures). In addition to the threat posed to jury impartiality by television media and media in general, further inquiry and argument has explored how the presence of news cameras can subversively alter the performance of the judge and defence and prosecution attorneys.
Again, the judicial system is really as fallible as the people who perform their duties, and this is no less true of officers of the court. Attorneys especially have long been known to dissect their juries’ ethnic, class and status backgrounds in order to specifically craft an argument exploiting emotional and ideological bias. In several high profile cases, attorneys have been known to wage tense argumentative battles for the juries benefit and resume to a cordial banter when they are not ‘on stage’ . Charles Winick’s (1961) in depth exploration of attorney-jury relations found that an attorney’s perceived credibility, honesty, paralinguistic quality and argumentative eloquence significantly impacted jury verdicts before evidence even came into consideration. In the Jack Kevorkian trial, Judge Jessica Cooper opined
“they would do things…to posture and preen. And I think that was pretty much for the camera…They were playing to the camera when the jury went out, and they were playing to the jury when the jury was in” .
Add to this the possibility for an attorney to simultaneously attain a degree of celebrity and advertise him/herself to future clients through television media and there quickly become several layers of subjectivity and mediation in a judicial process already fraught with perception bias and non-factual judgements . While attorneys might have a great financial and personal interest in winning cases through the employment of meretricious arguments and methods, judges are not immune to the affects of the camera.
While I have already mentioned beneficial aspects of television media and media in general in that they act as a balance to possible judge indiscretion, the flip side of that equation is television media’s role in increasing the judge’s celebrity status and fostering egotistical motives . US Supreme Court judge Earl Warren criticized a trial judge in the Estes v. State of Texas, trial for deliberately tailoring his speech to the television viewing public, and “…[taking] the initiative in placing himself before the television audience and in giving his order, and himself, the maximum possible publicity .” While Warren’s criticism of the judge and of the inevitability of such acts reoccurring when there is a motive for it are sound, such a criticism is invalid when the camera is not used to broadcast to a large television audience . It is when a large public has access to the court and the decisions and pontificating of the judge that the court serves a purpose other than its primary one ‘to ascertain the guilt of the defendant’.
Any argument for the inclusion of cameras in the courtroom, no matter the cirumstances, is therefore subject to Warrens assertion that the courts are there for this one reason – the ascertainment of the guilt of the defendant, and the complication of the courts unnecessarily for educational value or others is secondary at best. Quoted at length for its eloquence and severity he writes
“There would be a real threat to the integrity of the trial process if the television industry and trial judges were allowed to become partners in the staging of criminal proceedings. The trial judge in the case before us had several "conferences [with] representatives of the news media." Post, p. 606. He then entered into a joint enterprise with a television station for the construction of a booth in his courtroom. The next logical step in this partnership might be to schedule the trial for a time that would permit the maximum number of viewers to watch and to schedule recesses to coincide with the need for station breaks. ”
Similarly, arguments that television provides the public with a vicarious seat in the criminal courtroom are open to the same mediation and subjectivity that threatens the rational judgements of the jury.
One qualm that has not died since televisions emergence and global acceptance as a leading source of information and knowledge is its suitability as a medium and carrier of information. The entire news broadcast industry is founded upon the implicit assumption that television is a worthy carrier of news and information to anyone who can tune in. Concerning court documents, Chemerinsky is a champion of court broadcast television as an ‘educator’ and platform in which to view and understand the court process. For what reason have televised broadcasts of trials been granted a higher knowledge value than written transcripts of the exact same trial? What precisely is it that makes television so remarkably worthy of such a high epistemological status? The short answer is that it doesn’t. Viewing television is far more passive an act than deciphering strings of text in one’s mind, and furthermore is subject to a galaxy of commercial interruptions and imperatives that in no way compare to individual contemplation of a court transcript. There are no ratings and viewership vs educative value games being played when a professor actively chooses a particularly instructive trial transcript and hands it to students to interpret and learn from.
Although I would in no way adhere to the entire gamut of media critic Neil Postman’s anti-technological vendetta , his criticism of television in particular is not only persuasive, but critically relevant concerning the concept and basis behind televised court trials. Postman writes
“television has achieved the status of ‘myth’ [in Roland Barthes definition of that word]… a way of understanding the world that is not problematic, that we are not fully conscious of, that seems, in a word, natural….our culture’s adjustment to the epistemology of television is by now all but complete; we have so thoroughly accepted its definitions of truth, knowledge, and reality that irrelevance seems to be filled with import, and incoherence seems eminently sane. ”
Arguments for the broadcasting of court events to a national audience often ignore the capacity for television to carry ‘un-truth’. All the political, scientific and enlightenment thought which laid the foundation for institutions such as the court were founded largely in the 18th century, an age in which the novel and political tract reigned supreme. As Postman documents in ‘Typographic America’, which just as easily could have been ‘Typographic Canada’, the written word was the epistemological medium of choice, within which truth could be found. Fiercely critical of television as a platform for serious thought, Postman argues convincingly that we have ‘poisoned’ rational and coherent discourse by subverting it to the biases of television. These biases include commercialism (i.e. commercial intervention and advertisements disturb, interrupt and corrupt potentially crucial and important cultural and political/news programming with impunity), selectivity (channels can be flicked with ease, rendering any ultimate transmission incoherent, which in turn produces fragmented and brief content and programming to attract distracted viewers), and disengagement (television is a unilateral medium which entails a passive viewer engagement) among many others. For what rational reason was television chosen to showcase and include the public in the ‘educational’ project of the judiciary system? To invoke Judge Warren again, “…the function of a trial is not to provide an educational experience; and there is a serious danger that any attempt to use a trial as an educational tool will both divert it from its proper purpose and lead to suspicions concerning the integrity of the trial process ”. While an initial endeavour was made to compromise between anti and pro-camera advocates, ultimately, for all the regulation and control that such a compromise would involve, and having discounted the imperative of ‘education’, it will be concluded that tape recordings, made available to the public and media are all the concessions that need to be made.
While the judicial system may concurrently be open to human error and fallacy by allowing visual contact between the parties of court, ultimately the balance that needs to be made is whether subjectivity is more valuable and capable of producing worthy verdicts than a purely rationalist trial. It is wondered whether a court trial could be conducted entirely by transcription, without any visual or oral ‘interference’ at all. Are we willing to conduct a trial in such a manner? If we were we would likely minimize and eliminate several negative biases that have become ‘natural’ and ‘normal’ circumstances of a modern criminal trial. For one, the jurors would be unlikely to have a higher propensity of judging a defendant on the basis of looks, speech impediments, a particular arguments rhetorical or specious flair, or the number of arguments made by either attorney. It would really come down to logical induction and deduction, evidence and other more rational means. The attorneys would be unable to discern the anatomy of their jury (whether it was largely black, white, rich, poor, female, male etc.) and would be forced to eliminate arguments designed to exploit a juries’ particular demographic makeup. Do we have faith in a rationalist reduction of the court system, or should we neglect these concerns and continue to invest faith in its current incarnation - as a platform upon which the range of human subjectivity is given free range? While an experimental court system (one might think of it as a virtual court) would seem to have its advantages, it would have to undergo an experimental phase before it could be compared to the traditional open courtroom. In ending, if the imperative for the court system to be accountable to the public is great, then the public has a responsibility to investigate the courts on their own time. There is nothing preventing individuals from obtaining written or audiotape court records and reviewing them. In removing the possibility for the court system to become an entertainment venue for the idle citizenry and opportunistic mass media, the judicial system has a greater likelihood of serving its primary purpose: discerning the guilt of the defendant. “The television industry, like other institutions, has a proper area of activities and limitations beyond which it cannot go with its cameras. That area does not extend into an American courtroom” – Supreme Court Judge Earl Warren (1965).
Endnote:
In February of 2002, Canada was awakened to a growing BC police investigation being conducted into the disappearance of approx 60 women from Vancouver’s downtown eastside. The source of the investigation was wealthy Coquitlam native and pig farmer William Robert Pickton. The police investigation and media coverage that followed quickly ballooned as forensic evidence was found linking Pickton to the missing women, and as the number of first degree murder charges rose, the case has become the largest serial killer investigation in Canadian history. For better or worse, however, such spectacular criminal investigations and the trials that result from them are far over-represented in the amount of local and international media attention they receive, which complicates the administration of justice system. When it is finished, the trial will make an excellent subject for a case study on television and camera coverage in the courtroom. Although the case is still in progress, and likely will be for some time, there is a wealth of controversy to explore.
In its short life span, the Pickton investigation has had no shortage of controversy. While at first, the police were accused of not acting quick enough to investigate the missing women and possible evidence linking their disappearance to Pickton’s farm, the weight of controversy now rests largely on how the trial will be conducted publicly. The issue flared up when US reporters violated the local judge’s publication ban and evidence disclosed in trial appeared on the websites of US media organizations. In the ensuing clampdown on public access to the courts, further controversy arose as the families of the victims asserted their right to attend trial and launched lawsuits of their own to get their voices heard. While in this particular case the argument that the families of the victims should be granted inclusion in the pre-trial hearings, the judge has a strong imperative to prevent leakages of vital evidence and information to the broad public and potential jury pool. Already a significant bias against Mr. Pickton exists, since he has been accused, and general knowledge of evidence against him is also known – warranting the 15 murder allegations.
While it remains to be seen how the full criminal trial and its publicity will be handled, the move to ban or severely restrict the publishing and broadcasting rights of the national and international journalists who attend to the hearings can only be a positive and circumspect measure.
Bibliography
References
Barber, Susanna News Cameras in the Courtroom: A Free Press – Free Trial Debate
Ablex Publishing, New Jersey, 1987
Cohn, Marjorie and Dow, David Cameras in the Courtroom: Television and the Pursuit of Justice
McFarland & Company, Inc., Publishers, North Carolina, 1998
Davis, Charles N. and Splichal, Sigman L. Access Denied: Freedom of Information in the Information Age
Iowa State University Press, 2000
Freedman, Warren Press and Media Access to the Criminal Courtroom
Greenwood Press, Inc., Connecticut, 1988
Postman, Neil Amusing Ourselves to Death: Public Discourse in the Age of Show Business
Penguin Books, New York (1985)
References Consulted
Meyrowitz, Joshua No Sense of Place: The Impact of Electronic Media on Social Behavior
Oxford University Press, New York (1985)
Internet
British Court Television controversy reported by the BBC. Last Accessed May 29, 2003.
http://news.bbc.co.uk/1/hi/uk/1089958.stm
Arguments in US law for and against camera prohibition. Last Accessed May 29, 2003
http://www.sfbappa.org/SFBAPPALaw.html
ABC News archived news editorial on Clinton’s State of the Union Address made during the confused and surreal period following the break of the Monica Lewinsky scandal, and the OJ Simpson verdict which was aired split screen with his address. See the following link for more details, last accessed June 11th, 2003.
http://abcnews.go.com/sections/politics/DailyNews/stateofunion_bkgnd.html
A graduate student review of Postmans 1992 book on ‘technopoly’ and ‘technocracy’. Last Accessed June 11th 2003.
http://novationsjournal.org/content/original_story.pl?story=4
Estes v. State of Texas 381 U.S. 532 (1965). See the following site for a transcript of Judge Earl Warren’s ruling, judgement and findings. Last Accessed June 11th, 2003.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=532
The following site contains and elaborates upon the US Constitution Sixth Amendment right to a ‘public’ trial. Last accessed June 11th 2003.
http://caselaw.lp.findlaw.com/data/constitution/amendment06/03.html
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