JURIST Guest Columnist Nancy Marder of Chicago-Kent College of Law says cameras should be kept out of the courtroom, because they are distracting and potentially disruptive, and there are plenty of other ways to keep citizens informed…

Illinois, which has allowed cameras in its appellate courts and its supreme court since 1983, recently opened up its trial courts to cameras as part of a pilot program. Illinois is part of a growing movement to have cameras in the courtroom. This movement can be seen on the state level, not only in Illinois, but also in Pennsylvania, Minnesota and South Dakota. These states have amended their procedures to make them more accessible to cameras. All 50 states now permit cameras in their courts, albeit with various restrictions. On the federal level, the Judicial Conference recently approved a pilot program, which is being conducted by the Federal Judicial Center, in which 14 district courts are experimenting with cameras in the courtroom. Although the US Supreme Court has resisted permitting cameras during oral argument, Congress has been working on legislation that would allow cameras in the Supreme Court. On February 9, 2012, the Senate Judiciary Committee voted 11-7 in favor of having cameras in the US Supreme Court. A similar bill, the Cameras in the Courtroom Act of 2011, is still pending in the House Judiciary Committee.

Leaving aside the constitutional question of one branch taking an action that does not respect the judgment of a coordinate branch, is permitting cameras in the courtroom a wise policy decision? Making courts accessible to citizens is important, but courts can do this in different ways, such as making audio and written transcripts available as quickly as possible. Cameras are not the only answer. Admittedly, the trend has been toward allowing cameras in courtrooms, but there are good policy reasons to stop short of having cameras in the courtroom, particularly in trial courts. At the very least, state and federal courts need to proceed cautiously and consider what is at stake.

Proponents of cameras in the courtroom rely primarily on three arguments: education, transparency and accountability. They argue that cameras in the courtroom will teach citizens about the work of judges and courts. They point out that ordinary citizens know little about this branch of government, and that televising courtroom proceedings will allow people to watch and learn.

Proponents also argue that cameras in the courtroom will make the work of judges more transparent to the citizenry, and that government transparency is important in a democracy. Indeed, Illinois Chief Justice Thomas Kilbride, in explaining why cameras should be permitted in trial courts in Illinois, said: “This is another step to bring more transparency and more accountability to the Illinois court system.”

Proponents also claim that cameras in the courtroom will make judges more accountable to the people. Citizens will be able to watch their judges in action, and decide whether they are performing adequately or not. The underlying assumptions are that if judges know they are being watched, they might treat lawyers and parties better than they now do.

Although these arguments have appeal, they are not supported by any evidence, and they focus only on the public, not the parties. Judges also need to ensure that the parties receive a fair trial. What gets lost in the debate on cameras in the courtroom, is that there are competing rights at stake and that there are many ways to ensure that a courtroom proceeding is public, and cameras are not the only way. Proponents’ concerns about education, transparency and accountability are also met in other ways.

Although many states have permitted cameras in their courtrooms since 1978, and the US Supreme Court in Chandler v. Florida endorsed such state experimentation as long as it did not create a carnival atmosphere in the courtroom, there have been no studies showing that the citizenry has become more educated about courts as a result of these efforts. After almost 35 years with cameras in state courts, Americans lack of knowledge of state judges and cases persists. Thus, the claim that cameras promote education is one that has not been systematically studied or borne out by the states’ experience.

Similarly, the claims that cameras promote transparency and accountability have not been systematically studied or supported by the states’ experience. Moreover, state court judges’ work is already transparent in that courtrooms are open to the public, proceedings are conducted on the record, and judges write opinions in which they give reasons for their decisions. Many state judges are accountable in that they are elected to office and can remain only if the voters choose to keep them in office.

Before federal courts start following the states’ lead and permitting cameras in the courtroom, it is worth considering what the trade-offs are. One concern, particularly in trial courts, is that judges, lawyers, witnesses and jurors can be affected by the presence of the cameras. In a 1994 study of cameras in federal courts, undertaken by the Federal Judicial Center, there were some judges, witnesses and jurors who felt that their behavior was affected by the presence of cameras during the pilot program. Proponents of cameras say that cameras do not affect behavior, but some trial participants in the federal pilot program felt otherwise.

If cameras are to be tried anywhere in the court system, the least likely place would be trial courts, where there are concerns about jurors and witnesses; appellate courts do not raise these same concerns. However, even appellate courts run the risk of attorneys and judges acting differently during oral argument because of cameras. Several of the Supreme Court justices have expressed this concern. They worry that they might not push a particular argument or hypothetical as far as they do now because of how it would be perceived on television. For every judge in a state appellate court who says his or her behavior was not affected by the cameras, there are some who felt that their behavior was. When that happens, the exchange between judge and lawyer suffers, which undermines the role of oral argument.

One solution, then, is to keep cameras out of courtrooms, but to make sure that the proceedings in addition to being open to the public are available online via audio and written transcript. The public gets to learn about the case and the judge’s handling of it, without running the risk of adversely affecting the parties. This approach also avoids the power that images have to distract or to be misused. In an audio or transcript, the words remain the focal point, whereas in a televised proceeding, the images and personalities assume center-stage. The focus should be on the argument, not on what the judge or justice is wearing. Cameras in the courtroom, whether in the trial court or the Supreme Court, have the potential to turn courtrooms into just another form of entertainment. The OJ Simpson case, for example, was transformed from a murder trial into a drama about the personalities of the judge, attorneys and witnesses. Although the Simpson trial was an outlier, the harm that it did to public perceptions about courts and judges was enormous.

In this age where every citizen has a cell phone camera and images go viral on the Internet, the damage to courts could be irreparable. Far better, at least for now, is to keep cameras out of courtrooms and to keep citizens informed through other means, such as audio and transcripts, which are far less distracting to participants and observers alike.

Nancy S. Marder is a professor of law and Director of the Jury Center at Chicago-Kent College of Law. From 1990 to 1992, she was a law clerk to Justice Stevens of the US Supreme Court. Marder is the author ofThe Conundrum of Cameras in the Courtroom.

Suggested citation: Nancy Marder, Cameras and the Courtroom Dynamic, JURIST – Forum, Feb. 24, 2012, http://jurist.org/forum/2012/02/nancy-marder-courtroom-cameras.php.