Cameras in Courtrooms: Dimensions of Attitudes
of State Supreme Court Justices
by F. Dennis Hale
Introduction
This study will extrapolate the future development of public policy concerning
cameras in state courtrooms by surveying state supreme court justices, the
government officials who make most of the policy about the issue. The intent is
to identify judicial characteristics and other variables that are associated
with support for, or opposition to, the presence of cameras and broadcast
equipment in courtrooms. Are such attitudes related to judges' political party,
criminal prosecuting experience, belief in judicial activism, or service in
nonjudicial, elective office? And are justices' attitudes on cameras related to
their perceptions about fairness, accuracy and thoroughness of press coverage of
themselves and their courts?
These questions were explored by interviewing recently retired members of state
supreme courts. Retired justices were surveyed because judicial ethics prevent
sitting justices from publicly commenting on substantive law. In the interest of
judicial fairness, and the appearance of fairness, justices must avoid making
public statements that indicate a preference or bias concerning substantive law.
The study focused on state supreme courts because such courts make the vast
majority of law on the issue of permitting cameras in state courtrooms. In most
cases, camera policy is established when state supreme courts draft and approve
such policies as formal rules for the operation of all appellate and trial
courts in their state. In most instances such rules are applied on an
experimental basis for a few years before they are made permanent. In a few
cases, state judicial commissions draft such rules, but the commissions are
either dominated by members of the state supreme court or by other state judges
who are quite sensitive to the concerns of the state supreme court. In a very
few states, legislatures have passed statutes pertaining to cameras in
courtrooms, but such laws are subject to review by the state supreme courts.[1]
In conclusion, state supreme courts make most of the policy on cameras in
courtrooms because of the concept of separation of powers in federal and state
constitutions. State courts constitute one of three, separate branches of
government which have exclusive control over their own operation; state courts
possess innate or inherent rights that are independent from the influence of
nonjudicial, government officials. Neither the governor, or executive branch of
government, nor the state legislature, may interfere with such innate rights.
Thus any study of the formation or modification of public policy on cameras in
state courtrooms must focus on members of the fifty state supreme courts.
History of Issue
The right to photograph state court proceedings has evolved from a vague right
in the 1920s, to a prohibition in the 1930s, to access in the 1980s. A 1934
textbook on the rights of journalists described the right as being poorly
defined. Although some judges allowed photographers in their courtrooms, the
book said that judges clearly had the authority to ban cameras from their
proceedings.[2]
Trial judges soon lost their discretion to permit cameras in their courtrooms.
Susanna Barber and other scholars associate the change in policy with the 1935
trial of Bruno Hauptman for the kidnapping and murder of the baby of Charles and
Anne Lindbergh.[3] The trial in Flemington, N.J. created a media circus.
However, with two exceptions, cameras were banned from the courtroom during the
actual trial. Just the same, the American Bar Association used the various
abuses during the trial as a justification in the fall of 1937 to amend its
Canons of Professional and Judicial Ethics to ban photographers and radio
broadcasters from courtrooms. In 1952 the rule was amended to also ban
television broadcasters.
The ABA's Canon 35 was quickly recognized by state bar associations and state
appellate and trial courts and by 1965 only two of the 50 states, Colorado and
Texas, allowed cameras in courtrooms. The banning of cameras from courtrooms was
endorsed by the U.S. Supreme Court in the 1965 Estes decision when four judges
agreed that cameras violated the 6th Amendment right of a criminal defendant to
a fair trial.[4] A fifth justice, in a concurring opinion, said that cameras
should only be banned in highly sensational trials.
Despite Canon 35 and the Estes decision, various states, beginning with
Alabama and Washington in 1976, began to experiment with allowing cameras in
state courtrooms. And in 1978 the Conference of State Chief Justices voted 44-1
to allow cameras in state courtrooms.
Such experimentation by the states was tolerated by the U.S. Supreme Court in
its Chandler decision of 1981.[5] The Supreme Court ruled 8-0 that cameras in
the courtroom had not deprived burglary defendant, Noel Chandler, of his
constitutional rights. The court said that "At present no one has been able to
present empirical data sufficient to establish that the mere presence of the
broadcast media inherently has an adverse effect on that process." The ruling
was neutral; it did not mandate or encourage states to allow cameras in their
courtrooms. The court simply ruled that the states were free, if they wished,
to experiment with courtroom cameras. Three years later the ABA responded to
Chandler by replacing Canon 35 with Rule 3A(7) of its Code of Judicial Conduct
which said that state appellate courts had the proper authority to allow cameras
in courtrooms.[6] Chandler provided a catalyst for allowing cameras in
courtrooms. Prior to the decision 23 states allowed cameras; 7 more states
allowed cameras in 1981, the year of Chandler; and 18 states modified their
rules and allowed cameras after 1981. By 1996 only two states, Mississippi and
South Dakota, banned cameras from courtrooms.[7]
The debate about courtroom cameras continues. The O.J. Simpson criminal trial
of 1995-96 generated considerable discussion about the issue, but few state
policies were subsequently changed. In 1996 the California Judicial Council
voted to grant that state's trial judges greater discretion in controlling
courtroom cameras, Also in 1996, trial judges in a number of high profile cases
such as the second Menendez brothers trial and the Simpson civil trial opted to
close their courtrooms to cameras. But with those exceptions, policy on cameras
in state courtrooms remained unchanged following the O.J. Simpson criminal
trial.
Although 48 states permit cameras in courtrooms, their policies vary greatly. A
1990 summary of the state rules described them as a "crazy quilt of
provisions."[8] The summary reported that some states permit coverage of
criminal trials only if the defendant assents, that many states prohibit
coverage of sex crimes or divorce proceedings, and that other states restrict
the coverage of jurors. Differences were just as dramatic in 1996. Although the
majority of states allow coverage of trial and appellate courts and civil and
criminal trials, some were more restrictive. Illinois, Louisiana, Indiana and
Nebraska limited camera coverage to appellate courts. Maine and Oregon allowed
coverage of trial courts but not of appellate courts. Delaware, Maine and
Maryland allowed coverage of civil trials but not criminal trials. And Utah
allowed still camera coverage of trial courts but not television coverage.[9]
It is one thing to permit coverage and quite another to facilitate coverage. The
Washington Supreme Court moved in the direction of facilitating coverage in 1995
when it allowed the Washington Public Affairs Network, a free cable channel, to
broadcast all of the oral arguments before the court. During the court's 1995-96
term oral arguments for 45 cases were broadcast over the cable network which
reaches 670,000 households.[10]
While cameras are allowed in most state courts, they are banned in the U.S.
Supreme Court and federal trial courts. However, the 13 circuits of the U.S.
Court of Appeals have been authorized by the Judicial Conference of the United
States to create their own rules for cameras.[11] This decision by the Judicial
Council followed a three-year experiment by that body allowing camera coverage
of six trial courts and two appeals court in the federal judicial system.[12]
Review of Literature
A modest amount of research has been conducted about attitudes on cameras in
courtrooms. Included are a few surveys of the general public and a number of
surveys of trial court judges and attorneys. But there have been few surveys
of state appellate court judges, the persons responsible for most of the public
policy on cameras in the courtroom.
The very few surveys of the general public have identified substantial support
for cameras in courtrooms. A 1984 survey of 308 registered voters in Toledo,
Ohio found that 52 percent favored cameras in state courtrooms and 59
percent approved of camera coverage of oral arguments before the U.S. Supreme
Court.[13] Men were more supportive than women; however, political party did
not make a difference. A 1979 survey of student opinions at a community
college in central Texas also identified public support for courtroom cameras.
The survey included 22 statements supportive of specific media rights. The
student respondents gave the third highest support to the statement, "Press
photographers should have the right to film criminal trials that are open to
the public." [14] Some 64 percent favored the statement.
State courts frequently approve rules to permit cameras in courtrooms after
allowing such access on a two- or three-year experimental basis. Then surveys
are conducted of trial judges and attorneys to examine the impact of cameras.
There have been two summaries of these state surveys. Most recently, in
July 1995, the Courtroom Television Network reviewed such studies in 24
states and found that judges and attorneys agreed in 23 of the states that
courtroom cameras did not influence trial participants.[15] The report
concluded that "evidence gathered by the states' studies has repeatedly and
overwhelmingly concluded that television coverage does not disrupt court
proceedings or impair the administration of justice."
In an earlier summary, Barber evaluated 19 such studies in 11 states during
the years of 1975-83.[16] Barber found that strong majorities of judges in
studies agreed that cameras did not harm the judicial process and from 73 to
88 percent said that witnesses were unaffected. However, judges did resent
the increase in administrative duties caused by cameras. Attorneys in general
were quite mixed in their opinions, but defense attorneys strongly objected to
cameras. Barber concluded that despite their favorable attitude about the
impact of courtroom cameras, a majority of judges with TV experience
favored the policy, and a majority without the experience opposed the policy.
The significance of personal experience with courtroom cameras also was
evident in academic surveys of judicial opinions in three states. In 1957
Cashman and Froke surveyed trial judges in Illinois. At the time the ABA's
Canon 35 had no legal standing in Illinois, but it had been adopted by the
Illinois Bar Association.[17] Strong majorities of judges objected to
courtroom cameras: 68 percent opposed still photos taken with existing light,
86 percent opposed motion pictures and 89 percent opposed live radio or
television coverage.
Similarly, a survey of Indiana judges and attorneys conducted in 1982 also
uncovered strong opposition.[18] At the time state law prohibited cameras
in courtrooms and the state chief justice opposed any changes in the
policy. The survey found that Indiana judges, prosecuting attorneys and local
bar association presidents generally agreed in supporting the camera ban. The
judges agreed with 13 of 16 anti-access arguments with the strongest support
for: causes attorneys to be flamboyant, inhibits witnesses, distracts
witnesses, and distracts jurors. The same judges also rejected 3 of 4
pro-access statements. The only pro-camera statement that judges supported was
that access would be of educational value. However, many judges qualified
this favorable response by indicating that it only would apply to instances
of complete coverage of trials.
Quite different attitudes were expressed in a 1992 survey of judges and
attorneys in Ohio.[19] The study was conducted when the state had 13 years of
experience with cameras in courtrooms. General trial judges and county
prosecuting attorneys pretty much agreed in supporting courtroom cameras.
Similar to other studies, defense attorneys were less supportive and sometimes
opposed cameras. The trial judges supported 8 of 12 positive statements about
courtroom cameras. The greatest support of 74 percent was for the statement
that even with cameras present, judges could preserve judicial dignity and
allow greater public access to the proceedings. The second highest support was
for the statement: "The use of still and/or video cameras in the courtroom
during a trial is consistent with the principles of openness required in
judicial proceedings." The judges' criticism of courtroom cameras was quite
mild. A majority agreed that cameras inhibited witnesses and distracted
jurors. And a majority agreed that guidelines needed to be made more precise,
particularly for such matters as cable feeds and wireless microphones. Despite
these qualifications, 60 percent of the trial judges agreed that the current
rules "allow the appropriate amount of judicial control and need no changes."
The only study to examine the attitudes of state supreme court members on
courtroom cameras was a 1979 Washington Post survey of constitutional
lawyers, political science professors and state chief justices. Some 56
percent of the chief justices responded. A majority of the lawyers, professors
and chief justices favored camera access on three questions: 53 percent
favored camera access to trials in general, 67 percent favored camera access
to oral arguments before the U.S. Court of Appeals, and 65 percent favored
access to oral arguments before the U.S. Supreme Court.
In conclusion, there have been no systematic analyses of the dimensions of the
opinions of state supreme court justices on the issue of cameras in the
courtroom. More importantly, there has been no examination of judicial
characteristics and other factors that are associated with justices' attitudes
on courtroom cameras.
Methodology
The purpose of this study was not so much to measure the opinions of state
supreme court justices on courtroom cameras as it was to explore the factors
that were associated with those opinions. How are attitudes on cameras
related to justices' legal education, pre-court career, method of election,
attitudes about other media rights, and opinions about press coverage of the
state supreme court? Those were the major concerns of this study.
It would have been preferable to interview sitting members of state supreme
courts. But judicial ethics prevent active justices from commenting on
substantive matters of the law that they might be required to adjudicate. Thus
recently retired members of state courts were surveyed instead of active
members.
The universe of interview subjects consisted of justices who had retired from,
or left, state supreme courts during the six years of 1991-96. A list of
retirees was created by comparing 1996 members of state supreme courts as
listed in the regional reporters of the National Reporter System with the
names in the same reporter volumes in 1991. The seven regional reporters that
report the court members and all decisions of the 50 state supreme courts
are: Atlantic, North Eastern, North Western, Pacific, South Eastern, South
Western and Southern. Also consulted was the 1996 volume of The American Bench
which lists all federal and state judges at the trial and appellate level
in the United States. Lastly, clerks and/or public information officers at
all 50 state supreme courts were contacted by telephone to confirm the list
of former justices.
This original search yielded 140 names. Names were deleted for those judges
who had died, a few who had become federal judges, a few whose addresses
could not be found, one judge in prison and one impeached judge. This left a
universe of 120 names.
The first copy of questionnaires was mailed in late November 1996. Each judge
received the four-page questionnaire, a personalized letter, a return
envelope, and a one-page summary of the researcher's publications concerning
state appellate courts and mass media law. The second copy of the
questionnaires was mailed in late February 1997. Each judge received a
personalized letter, return envelope, sheet with headlines and bylines of
legal articles by the author, and an endorsement letter from the dean of the
National Judicial College.
The questionnaire consisted of 55 closed-ended items on judicial
background, legal background, news coverage of the state supreme court,
substantive mass media law and five items on cameras in the courtroom.
Respondents evaluated most statements with five-point, Likert scales. The
questions on courtroom cameras were:
Journalists should enjoy significant rights to take cameras
and broadcast equipment into state courtrooms. (agreement)
The state supreme court is an appropriate entity to provide
this camera access to courtrooms. (agreement)
What happened to your attitude about cameras in the
courtroom after the O.J. Simpson trial? (supportiveness)
What do you expect to happen to your state's rules on courtroom
cameras in the next five years? (supportiveness)
What do you expect you state's trial judges will do during
the next five years concerning cameras in their courtrooms?
(restrictiveness)
Eight other pairs of questions, or sixteen all together, examined justices'
support for a specific media rights and support for the state supreme court's
involvement in those rights. Besides courtroom cameras, these questions
examined libel, privacy, source confidentiality, public meetings and
records, access to courts, student speech rights, pamphlets at shopping malls,
and obscenity.
Seventeen questions examined judicial background and demographics such as
age, supreme court experience, trial court experience, prosecuting
experience, nonjudicial elective office, party identification, liberalism and
judicial activism. And thirteen questions examined evaluations of press
coverage of the state supreme court. Justices evaluated the fairness,
accuracy and thoroughness of coverage of written decisions, oral arguments and
judicial elections, and they contrasted news coverage of their court with
coverage of the U.S. Supreme Court and the state legislature and state
executive. The justices also evaluated press coverage of themselves and
estimated citizen awareness of the state supreme court.
Lastly, justices were asked four miscellaneous questions: approval for using
state constitutions to expand speech rights, knowledgeability of the news
business compared to medicine and road construction, importance of newspaper
endorsements in state supreme court elections, and justices' concern about
future treatment by the news media when they rule on mass media law.
Besides the 55 questionnaire items, nine variables were coded for the states
of the judges: population, percent whites, percent urban residents,
personal income, existence of an intermediate appellate court, selection of
judges via the Missouri Plan, years of statehood, college educated, and region
of the country.
The statistical analysis consisted of contrasting the five responses on
courtroom cameras with responses on the other substantive areas of mass media
law, and correlating the courtroom camera variables with the news coverage
variables, background facts and state characteristics and other variables. The
statistical program, SPSS for Windows, was used.
Findings
Some 48 questionnaires were returned by March 21, 1997, half from each mailing.
This represented 40 percent of the 120 subjects in the universe. The 48 subjects
came from 33, or 70 percent, of the possible 47 states. The surveyed subjects
were representative of the universe of retired justices. The characteristics of
the states of the respondents were quite similar to the characteristics of all
states (Table 1). The major exception was that Southern states were
underrepresented. But characteristics were similar for such important facts as
race, personal income, whether judges were appointed or whether states had an
intermediate appellate court.
Judges exhibited considerable negativism in the five major questions about
courtroom cameras. First, more judges rejected than accepted a general right of
journalists to take cameras into state courtrooms. The mean score on the 0-4
scale was 1.59 (see Table 2). This was the general attitude of the surveyed
justices even though all except one of them came from states which allowed
cameras in their courtrooms. This was the lowest support for nine survey items
on journalists rights. The 1.59 mean
______________________________________________________
Table 1. Representativeness of Judicial Respondents*
______________________________________________________
Sample State
Characteristics Characteristics
Region
Northeast 19% 18%
Midwest 29% 24%
South 23% 32%
West 29% 26%
Intermediate Court 79% 76%
Appointment 56% 60%
Minorities 14% 16%
Urban Residents 70% 68%
Population (millions) 6.3 5.0
Income ($100s) 184 182
Years of Statehood 155 156
College Educated 20.1% 19.6%
_______________________________________________________
compared to a 3.76 mean for the right of the press and public to attend state
trials. The court access item received the strongest support.
Despite their skepticism about cameras in courtrooms, justices were quite
comfortable with state courts setting policy in that area. The mean support for
such judicial policymaking was 2.87, which was the fifth highest of the nine
measures of state policymaking for media rights.
Of the five questions on courtroom cameras, judges responded most negatively to
the one about the impact of the O.J. Simpson criminal trial on their attitudes.
Although 54 percent said their attitudes remained the same, 44 percent said it
became less supportive of cameras (mean of 1.26).
Despite such negativism, judges predicted that camera access would not change
much in the future. Some 67 percent said that state rules for cameras would
remain about the same during the next five years, with 12 percent predicting
more access and 20 percent less access. And 70 percent predicted that trial
judges in their state will allow the same camera access during the next five
years. However, 24 percent predicted less access and 6 percent more access.
_____________________________________________________________
Table 2. Judicial Attitudes on Cameras in Courtroom
_____________________________________________________________
Favorableness*
4 3 2 1 0 Mean
General Attitude 15 24 0 26 35 1.59
State Court Policymaking 57 17 0 9 17
2.87
Attitude Since Simpson 0 2 54 11 33
1.26
Future State Judicial Rules 2 10 67 10 10
1.83
Future Trial Judge Decisions 0 6 7 15 9
1.75
*Most figures represent percentages; 4=very positive,
3=somewhat positive, 2=uncertain, 1=somewhat negative,
0=very negative
_____________________________________________________________
Just what were these attitudes on courtroom cameras related to? That
information is provided in Table 3.
First, with one exception the general attitude on courtroom cameras was not
related to background or environmental factors. The exception was a justice's
self-reported judicial activism. But the other variables--including liberalism,
age and method of judicial selection--were unrelated to this general attitude.
Second, no variables were significantly related to attitudes on state judicial
policymaking in the area of courtroom cameras. The predictor variables in this
study simply were unrelated to that attitude.
Six variables were related to change in opinion about courtroom cameras since
the O.J. Simpson criminal trial. Criminal defense experience and two positive
evaluations of press coverage of state supreme courts were negatively associated
with the Simpson question. And judicial activism, liberalism, and reliance on
state constitutions for speech rights were positively related to attitudes on
the Simpson question. These three variables, all associated with liberalism,
were related to a growing support for courtroom cameras since the Simpson trial.
Criminal defense experience also was negatively associated with future rules on
courtroom cameras and future trial-judge actions. Thus persons with defense
experience predicted reduced cameras access in the future. Three other variables
also were related to the two attitudes about cameras in the future. Population
and college educated were negatively associated and race (or whites) was
positively associated. Thus judges from larger states and from states with more
minorities predicted reduced camera access in the future.
In conclusion, this study found that state supreme court justices were quite
unenthusiastic about allowing cameras and broadcasting equipment in state
courtrooms. This is quite surprising considering the fact that 48 states allow
such camera access. If these attitudes of recently retired justices reflect the
opinions of judges still serving on state supreme courts, camera access will not
be expanding in the near future. The news media will do well to maintain the
access that they currently enjoy. And they may have to assert themselves to
accomplish that. Lastly, these attitudes on courtroom cameras were quite
idiosyncratic. They did not appear to be related to much. The one exception was
criminal defense experience, which only 21 percent of the sampled justices had.
_______________________________________________________________
Table 3. Factors Associated With Attitudes on Courtroom Camera
_______________________________________________________________
General State Since Future Future
Correlates Attitude Policy O.J. Rules
Trials
Judicial Background
Appellate Experience .09 .11 -.06 -.11
-.27
Trial Experience -.08 .20 -.10 -.14
-.04
Criminal Defense -.19 -.07 -.35*
-.37* -.33*
Civil Government -.01 .12 -.21 .17
.26
Prosecution .09 .11 -.06 .03 .14
Corporate .11 -.02 -.03 .02 -.02
Nonjudicial Elective .13 .04 -.21 -.15
-.15
Public College .04 .11 .03 .15 .14
Age .08 .11 -.06 .04 .10
Democrat .05 -.06
.17 -.07 -.10
Liberal .25 .14 .42* .13 .06
Judicial Activism .37* .22
.40* .17 .01
State Constitution .12 .12 .38* .28
.09
Attitudes Toward Media
Court Coverage .08 .04 .03 .14
.08
Election Coverage -.03 .04 -.12
-.02 .01
Judicial Appointment -.01 .26 .15 .03
-.02
Personal Coverage .04 .06 -.04 .12
.03
Versus Legislature -.07 .01 -.37*
-.12 .02
Versus U.S. Supreme -.22 -.22 -.33* .05
.06
Citizen Awareness -.01 -.17 -.02 .05
.13
Knowledge of News -.12 -.07 -.17 .03
.12
Newspaper Endorsements -.09 .29 -.02 -.27
-.16
Media Retaliation .09 -.20 .01
.19 .18
State Characteristics
Population -.17 .03 -.23 -.45*
-.39*
Race (Whites) .12 -.11 .12 .34* .35*
Urban .04 .26 .01 -.28
-.26
Income -.11 .15 .00 -.12
-.16
Intermediate Court -.03 .20 .14 -.23
-.26
Appointed Judges -.01 .26 .15 .03
.02
College Educated -.05 .13 .01 -.30*
-.34*
Years of Statehood -.16 -.12
-.19 .10 .03
*.05 significance, two-tailed test
___________________________________________________________________________
[1] "Lawmakers, Judges Dispute Rules for Cameras in Court," Editor & Publisher,
June 21, 1986, p. 92.
[2] Fredrick Seaton Siebert, (New York: Appleton-Century Co., 1934), p. 52.
[3] Susanna Barber, News Cameras in the Courtroom: A Free Press-Fair Trial
Debate (Norwood, N.J.: Ablex Publishing, 1987), P. 9.
[4] Estes v. Texas, 381 U.S. 532 (1965).
[5] Chandler v. Florida, 449 U.S. 560 (1981).
[6] Don R. Pember, Mass Media Law, 1997 ed.(Madison, Wisc.: Brown &Benchmark),
P. 408.
[7] "Cameras in the Courtrooms," Quill, October 1996, Pp. 22-29.
[8] Mary Anderson, "Cameras in the Courtroom," Presstime, March 1990, Pp.
14-16.
[9] Op. cit., Quill, Pp. 28-29, footnote 6.
[10] Ronald Goldfarb, "A Supreme Court That Welcomes Cameras," American
Journalism Review, July/August 1996, p. 15.
[11] "Camera Ban Eased in Fed Appeals Courts," News Photographer, April 1996,
P. 12.
[12] "Federal Courts Approve Camera Experiment," Presstime, October 1990, p.
37.
[13] "Ohio Opinions," Broadcasting, November 26, 1984, P. 61. "Poll Finds
Cameras Approved," News Photographer, January 1985, P. 11.
[14] F. Dennis Hale, "Student Opinions on Print v. Broadcast Rights," paper,
spring conference, Mass Communication and Society Division, Association for
Education in Journalism, Kent, Ohio, March 1981.
[15] "Facts and Opinions About Cameras in Courtrooms," Courtroom Television
Network, July 1995, P. 1.
[16] Op. cit., Barber, Pp. 75-84, footnote 2.
[17] Gerald Cashman and Marlowe Froke, "Canon 35 as Viewed by the Illinois
Judiciary," Journal of Broadcasting, 2: 295-310 (1958).
[18] Greg Stefaniak, "Indiana Legal Leaders' Perceptions of Camera Trial
Access Arguments," Journalism Quarterly, 61:399-403 (1984).
[19] "Judges, Prosecutors OK Cameras in Court," Coalition for Open
Government, Ohio Newspaper Association, Spring 1993, p. 3.
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