Dr. Paul Mason is Co-Ordinator of the Centre for Media & Justice, Southampton, England.

by Dr Paul Mason

The representation of law and order in the media has long been the subject of debate. Most people have little direct contact or experience with the criminal justice system and consequently rely on media reports and representations of it to supplement their knowledge. A recent addition to this debate is television coverage of courtroom proceedings, highlighted by disputed media reporting of the OJ Simpson and Louise Woodward trials. Trials such as these have led some commentators to suggest justice has been reduced to voyeuristic entertainment.²

These arguments were revisited when the BBC unsuccessfully argued for television and Internet coverage of the Lockerbie trial.³ However, other trials of international significance have embraced audio visual technology. The international criminal tribunals concerned with the dissolution of the former Yugoslavia (International Criminal Tribunal for the former Yugoslavia) and atrocities in Rwanda (International Criminal Tribunal for Rwanda) are both televised. I recently completed a report for the ICTY on the impact of electronic broadcast coverage of its trials on court participants. I will return to this later but it is important first to briefly outline the principle contentions surrounding the use of cameras in court.⁴

Arguments supporting the use of cameras in court

(i)Don't shoot the messenger: television as scrutineer

Perhaps the strongest argument for cameras in court is that television opens up the court to public scrutiny. This is often expressed as a logical extension of the First Amendment right of the media and arguably may reduce the likelihood of judicial impropriety and possible injustices. This was posited by the United States Supreme Court in Press-Enterprise v Superior Court (1984):

The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed . . . Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.

Public confidence in the criminal justice system rests on their perception of it: a perception based primarily on media representations. Television cameras, it is argued, ensure that justice is seen to be done. Conversely, if the camera shows that justice is manifestly not being done this is not the fault of the camera but of the justice system itself.

This 'don't shoot the messenger' argument was used frequently throughout the O.J. Simpson case. Cynthia Glozier, a producer at Court TV, and Greta Van Susteren, legal analyst at CNN, both argued that because people were uncomfortable with what the camera showed they blamed the camera: "All they do is tell what happened in the courtroom. The O.J. Simpson case has created sort of a knee-jerk reaction".⁵

The premise here is that television does not distort proceedings but simply shows them, warts and all. Proponents of televised court cases argue that television is a more accurate, purer form of court journalism than the printed press. It is the printed press, they argue, that contributes to the media circus. The camera allows the public to make up their own minds rather than rely on a third-person account of events.

If televising courtroom proceedings enables the public to examine the legal system, it also informs them of its workings. By putting cameras in the courtroom, millions of people have the opportunity to understand their criminal justice system. Indeed, tapes of actual trials are often and increasingly used as teaching tools for law students and attorneys. Court TV donates tapes to United States schools and colleges as part of the Cable in the Classroom programme.

The principal fear about putting cameras in courts is the effect that the camera may have on the participants in the trial. Those in favour of cameras can point to several studies that show cameras have almost no effect on proceedings. Four U.S. jurisdictions have conducted their own research into the effects of cameras in their courts. The Judicial Conference of the United States stated in its report on cameras in six federal district courts and two circuit courts that there had been no negative impact on the trial.

If the research findings into the effect of cameras in courts constitute one of the strongest arguments for the pro-television lobby, the O.J. Simpson trial is probably the weakest. Accusations of attorney 'showboating,' excessive trial length and a camera-affected judge have been well documented but those supporting televised trials argue that the Simpson trial was the exception that proves the rule. In answering criticism of the camera coverage of the Simpson trial, many argue it was not the camera that created the behaviour of the trial participants. Television, argued the editorial in Broadcast & Cable, 'did not control the hemlines on Marcia Clark's skirts'.⁶ Nor can it be proved that things would have been different if the cameras had not been there.

(v) Case law in favour of the courtroom camera

There are four US cases all decided in the early 1980s, which supporters of cameras in court contend back their argument. In 1980 Richmond Newspapers v Virginia held that the Sixth Amendment right to a public trial was afforded not only to defendants, but belonged also to the public. The next year Chandler v State of Florida (1981) evaluated the constitutionality of revised Canon 3A(7) of the Florida Code of Judicial Conduct which permitted electronic media coverage of judicial courts. It ruled that the presence of a camera in court did not inherently deprive a criminal defendant of a fair trial. In Globe Newspaper Co. v Superior Court (1982) it was held that a Massachusettes law prohibiting access to trials involving sexual offences on a minor violated the First Amendment. It ruled that the state must show compelling government interest to exclude the public and press from a trial. Later in People v Spring (1984) the court ruled that the presence of a television camera during a trial did not violate the criminal's sixth Amendment right to a fair trial.

Arguments against cameras in court

Many arguments in favour of cameras in the court are based on the assumption that the public watches what has been termed 'gavel to gavel' broadcasts of trials, that is to say unabridged airings of court proceedings. It is this coverage that educates the people and opens the court up for public examination. Opponents point out that the practical reality of television audiences is rather different. They submit that the public tends to watch the edited highlights of a case, which potentially misrepresent the facts. It was precisely this fear that led the United States Judicial Conference to end the three-year experiment of cameras in six federal state courts in 1994. This decision was taken despite the Federal Judicial Centre concluding that no trial during the three years had been adversely affected. Several judges who sat on the Conference stated they would reconsider their decision if proceedings were broadcast gavel to gavel.

Critics of televised trials propose it is what television does with the trial footage that is potentially so damaging. The story presented to judge and jury is presented over the course of the trial. In contrast, television news stories will focus on what is most interesting to the audience rather than what is most important to the proceedings. Reporters may use, for example, footage of a defendant in tears and join film with their own storyline. This could create a narrative that may differ from the central issue of the case.

It is not only television's potential to prejudice cases that concerns commentators, but also the use of harrowing and disturbing trials as entertainment. Televised trials are simply 'voyeurism tarted up in rights talk'.⁷ Television, they submit, is there to entertain and this will necessitate converting hours of legal argument and technicality into compulsive viewing. As West comments:

To expect judicious (so to say) coverage of trials and civil suits, though is to expect too much. A pup piddles because it is a pup.⁸

 

Associated with criticism of televised trials as sensational is the accusation that cameras diminish the court's dignity. This argument was used in the Supreme Court of Mississippi where cameras were excluded from the Byron de la Beckwith murder trial in 1995 and the Susan Smith murder trial in July of the same year. Also, in 1995 Superior Court Judge Lawrence Antolini restricted coverage to the first five minutes of each court day in the Polly Klaas murder trial. The potential for cameras to interfere with the decorum of judicial proceedings has led several U.S. judges to speak out on the matter, including Judge William L Howard:

In the Susan Smith case, I allowed the cameraman to augment the courtroom lighting...I could feel the heat when they were on. I felt judicially violated. That unacceptable little word "Hollywood" entered my mind.⁹

(iii) Starstruck: cameras pervert the trial process

Despite research to the contrary, opponents of television in court maintain that the presence of cameras affects participants. This is argued on two fronts. First, it is contended that existing research, which concludes that trial participants suffer no adverse effects from cameras in court, is methodologically flawed. Lassiter critiques the individual state research (discussed above) and argues that the samples used in the studies were too small. The Nevada study only surveyed thirty-one respondents, while Virginia and California relied on less than 60. He also suggests that the self-reporting techniques adopted in all the surveys created a bias in the results. The second line of argument is based on research which suggests that cameras do affect those in the court. In 1991 the New York Bar Association reported that cameras do have a prejudicial impact.¹⁰ Among the findings, 35% of attorneys said that the atmosphere was uneasy as a result of cameras, 56% of defence attorneys reported that they felt the fairness of the trial was affected by cameras and 19% of witnesses admitted to being distracted.

There also remain accusations of trial attorney grandstanding, particularly in the OJ trial:

Home viewers perceive the impact as they monitor Marcia Clark's Di-like makeover, with hair that's gone from shaggy mane to Madison Avenue sleek and a once frumpy wardrobe that now rivals Grace Van Owen's on L.A. Law.¹¹

 

The suggestion is that cameras turn the courtroom into a much larger stage where the audience watches in millions. Lawyers, aware of this transformation, become either showy actors or inhibited by the presence of a camera.

The principal case used by those opposing cameras in courts was decided in 1965. Estes v Texas (1947), a Supreme Court decision, ruled that there should be no constitutional right to cameras in court. The decision overturned the trial court's criminal conviction of Billie Sol Estes for the criminal felony of swindling. It also overruled the Texas Court of Criminal Appeals on the basis that the presence of cameras, inter alia, had deprived the defendant of his right to due process.

Although not banning them outright, the decisions to bar cameras in the high-profile cases of Byron de la Beckwith, Susan Smith and Timothy McVeigh have been seen by critics as slowing the momentum of televising court proceedings.

(v) Effect on victims and witnesses

The compromising of the safety of court participants has been highlighted by some as another reason to keep cameras out of courts. There is the danger that the camera acts as a tertiary form of victimisation: once by the crime, secondly during the trial and thirdly by the camera. This has been addressed by the International Criminal Tribunal for the Former Yugoslavia and is discussed below.

There is also concern that witnesses may simply not come forward to testify at all. Lord Irvine, the Lord Chancellor to the U.K. Government speaking on coverage of the Louise Woodward trial, is uneasy about this potential effect:

A There is also a serious risk that witnesses might be influenced in the evidence they give, or find undue pressure being placed on themselves or their families as a consequence of the coverage.@¹²

 

The arguments above have been pertinent to the use of cameras at the International Criminal Tribunal for the former Yugoslavia (ICTY). The three purpose-built courtrooms all contain six cameras which zoom and tilt. Although responsibility for the communicative design of the trials lies with the Tribunal's four video directors, their decisions are restricted. Among other things there must be no panning or zooms on screen and directors must cut away from any visibly distressed court participant.

Witnesses have the right not to be shown and their identity can be hidden through face and/or voice distortion. The footage itself is filmed live but broadcast with a thirty minute delay to protect court participants. If a mistake were made, for example if witness details were revealed in open court, then the thirty minute delay allows the coverage to be 'redacted'. This is where proceedings are stopped and defence and prosecution put forward their arguments why the coverage should be redacted. The judges make an immediate decision sent directly to the director in the control booth and that part of the proceedings is removed from the subsequent transmission.

The ICTY represents the first attempt, by an international community to enforce international humanitarian law in armed conflict since the International Military Tribunal at Nuremberg after the Second World War.¹³ Its mandate was to prosecute those persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991. The ICTY has the authority to prosecute four types of offences. These are crimes against humanity, grave breaches of the 1949 Geneva Conventions; violations of the laws or customs of war and genocide.¹⁴

The report compiled on the impact of electronic broadcast coverage of ICTY court proceedings sought to elicit and analyse court participants' views in five areas: the impact, if any, of the presence of cameras on the behaviour of judges, counsel, witnesses and defendant; the function of recording and broadcasting Tribunal proceedings and the nature and quality of such television coverage; the effect, if any, of the use of cameras on the administration of justice and decorum of proceedings in the Tribunal's courtrooms; the extent to which other international trials could adopt the Tribunal's audio visual policy in its courtrooms, in particular the Lockerbie trial; and the extent to which national justice systems could adopt the Tribunal's audio visual policy in its courtrooms. Space precludes a discussion of all of these areas; what follows is a discussion of the impact of cameras on court participants and the role of electronic broadcast coverage of court proceedings in international legal proceedings, including the Lockerbie trial.

One of the most important elements of the study of electronic broadcast coverage of court proceedings at the ICTY was to ascertain what impact, if any, the presence of cameras had on proceedings. Respondents were asked whether they thought televising proceedings affected the behaviour in court of themselves, witnesses, judges, counsel and defendants.

The overwhelming majority of respondents (92%) stated they were only 'occasionally' or 'rarely aware' of the cameras in the courtroom. It is interesting to note, however, that no respondent claimed to be totally unaware of their presence either. Judges were the most aware of cameras in the court; 16% stated they were 'very aware' and 67% reported being 'occasionally aware'.

The primary reason given by those who stated that the presence of cameras did not affect them in the trial chamber was concentration on the case itself. On a practical level, respondents described the cameras as Adiscreet@, Aunobtrusive@ and Ahidden@. Many respondents explained that they simply forgot that cameras were present in the courtroom:

When asked about the effect of cameras on witness behaviour, the majority of respondents (55%) thought it was possible that witnesses were affected. A significant proportion (20%), however, did state that in their view, witness testimony is affected in some way by cameras, while a quarter of respondents thought the reverse.

The uncertainty surrounding witness' behaviour in court centred on the nature of the Tribunal itself. It was argued by many respondents that the nature of cross examination and the consequent pressure on a witness during a trial made testimony an exacting task. Determining the effect that a camera has on a witness was therefore difficult.

In discussing the insignificance of cameras on witnesses, some respondents remarked on the painful nature of testimony. Not simply the pressure of giving evidence at the Tribunal but the content itself:

...a lot of them are telling very painful stories. Just dealing with the emotional dimension of talking about how their whole family was massacred and resurrecting these painful experiences - they are not playing to the cameras. They're not thinking about the cameras.

Counsel 2

Very few respondents stated that cameras in the court affected judges (4%). It was felt by respondents that judges, more than any other group, were the least likely to alter their behaviour in court in front of cameras. Respondents who suggested judges were largely unaffected by cameras in the courtroom gave two primary reasons: professionalism and familiarity. Respondents proposed that judges were experienced, highly competent people who could focus on the job in hand. Secondly, by sitting in court daily, judges became accustomed to the technology in the courtroom, including cameras.

Compared with other court participants, respondents saw counsel as more likely to be affected by cameras in the Tribunal's courtrooms. 80% thought counsel were either affected or possibly affected, although the majority reported the latter. Where judges were more unsure of the camera's effect on their own behaviour, most counsel (75%) reported not being affected. Perhaps significantly, 25% of counsel themselves and 33% of judges reported that cameras in court affected their behaviour.

The main reasons given by respondents for counsel being unaffected by cameras were the same as that given for judges: professionalism and familiarity:

I think they (counsel) forget they (the cameras) are there...their behaviour is not influenced by the fact that they know there is the television there - that they react or do things because they know there is a television there. It's very natural, the irritations are very natural, the behaviour, the body language are very natural.

Court Staff 5

Respondents also remarked on the nature of advocacy and suggested that counsel behaviour was, by its very nature, embellished. Consequently, they contended, the behaviour of counsel was the same with or without cameras:

Being in the persuasion business, you are trying to convince (in my system) twelve jurors. You are trying to persuade them, that includes persuasion theatrics.

Counsel 3

25% of all respondents stated that cameras in the courtroom affected counsel. When asked how this manifested itself, respondents talked of 'showboating', 'play-acting' and 'dramatics'. There was some specific reference to the political aspect of the trials: that counsel would use the wider audience created by the transmission of proceedings:

If you happen to be a lawyer who represents an interested state and you want some home footage back home? You want to make your public speech that says 'the Tribunal is unfair, they're railroading my client or they're starving him to death in the jail', and make whatever scurrilous remarks you want to make for home footage, this is the best opportunity to do it - having a camera in the courtroom, and no camera will tone that down.

Counsel 3

As with other court participants, there is an uncertainty in respondents' minds whether the cameras alter the behaviour of defendants: 51% stating that defendants may possibly be affected. The number of respondents who thought defendants were affected was low and was only half as many as those that thought defendants were unaffected.

Very little was said about the effect of cameras on defendants. The general opinion was that their passive position in proceedings and the nature of the indictment against them made the presence of cameras insignificant:

Well for defendants it's like a bump on a log. So he's presumably on his best behaviour anyway whether there is a camera there or not a camera there, he I don't think having a camera there or not having a camera there makes any difference.

Counsel 3

From the data collected from interviews with respondents, there was a general consensus that cameras in court do not affect participants. This was true both in self-assessment and in evaluation of the impact of cameras upon other court participants

II Electronic Broadcast Coverage of International Legal Proceedings

The potential impact and contribution of the ICTY's audio visual policy to other international trials is significant. Many ICTY staff argued that cameras should be encouraged in the administration of international justice. There were two predominant reasons offered. First, to recount to the international community the workings of the court. Echoing the reasons given by respondents for the use of cameras at the ICTY, a large proportion of those interviewed stated that cameras at other international trials would enable worldwide circulation of the international judicial process. In essence, cameras enable justice to be seen to be doneBallowing the international community the opportunity to scrutinise the due process of international justice. It would further address the problem of geographical location of a trial. The camera can create a global public gallery.

Secondly, respondents argued that cameras enabled endorsement and approval from the international community. It was also stressed, by counsel in particular, that the notion of international justice is a recent one and that communicating to as wider an audience as possible facilitates greater understandingBAit's all pretty new stuff,@ commented one counsel.

However, respondents continually emphasised the importance of the ICTY's internal control over televising Tribunal proceedings; some concern was expressed that external agencies in international proceedings could prove problematic:

I'm saying that because if you allow any media institution to come and do it, then you have a problem. It's very easy to manipulate. And also it's very easy to give people out of context excerpts...But as long as you have a media institution which is under the discipline of the authority dealing with the system of justice, then that's fine. Then you don't expect manipulation.

Judge 1

The trial of Ali Mohammed al-Megrahi and al-Amin Kalifa Fhima, accused of planting the bomb that exploded on Pan Am Flight 103 over Lockerbie, opened at Camp Zeist in The Netherlands under Scottish law on 3^rd May 2000. Although not under international law, the trial has international significanceBvarying nationalities involved in the case, the location of the trial and so on and for these reasons respondents were asked to comment on whether they thought cameras should form part of the trial.

A vast majority of respondents argued that cameras should be present in the Lockerbie trial. The most common rationale given by respondents concerned the victims' families. Many thought that the presence of cameras would enable relatives of those who died to see the trial which they would otherwise be unable to do:

This is not a trial for the sake of politicians or for the sake of diplomats, or for the sake of international law, this is a trial concerning a lot of victims, a lot of families - a lot of fathers, mothers and children who lost a relative in horrendous conditions. Now this is going to last for many weeks, for many months if not years. It will take place somewhere in the middle of this country with relatives scattered all over the world, but mainly in Great Britain or in the USA. How do you want them to know what is going on? This is their trial. They have to know, they have to see it, they have to be part of it.

Court Staff 7

Consequent to discussions about the use of cameras in international trials, respondents who contended that the Lockerbie trial should be televised pointed out the importance of the trial within the international community. Electronic broadcast coverage of the trial, it was argued, would show justice being administered. Respondents also discussed the political nature of the trial and whether cameras would, in any sense, politicise the courtroom. There was some consensus concerning the minimal impact cameras would make to the politics of the Lockerbie trial:

Counsel 2

Indeed, it was suggested that the use of audio-visual coverage may have a positive effect on the political nature of the trial:

I would think it would be the other way round...I would have said 'go for the publicity, go for the TV'... There has been a lot of misinformation, mis-reporting, a lot of political bias - go for the publicity....if you have no publicity every defence lawyer will go on the streets every evening saying Awell today the prosecutor lied to the court, he manipulated the evidence, he planted false evidence@ Do you want this? I don't see what interest it is going to serve. I would think that no TV would be more destroying than TV's in court.

Court Staff 7

As discussed above, the question whether electronic broadcast equipment should be used in the Lockerbie trial has been raised by the BBC in Scotland. After several appeals, the court found against the BBC, stating the right to a fair trial should be protected. The court argued that the use of cameras in the Lockerbie trial could inter alia discourage witnesses from coming forward and thus 'prejudice the interests of justice'.

Respondents at the ICTY, however, have argued that cameras do not prejudice the interests of justice nor affect the impartiality of the court. 92% of respondents stated that cameras did not affect the administration of justice, 46% of whom argued cameras had a positive effect. The divergence in opinion between the Scottish judiciary and court staff at the ICTY may perhaps be explained by public perception. Given the importance of justice being seen to be done in the Lockerbie trial, the use of electronic broadcast equipment, with all its Simpson trial baggage, may have given the public perception of the exact opposite.

Electronic broadcast coverage of court proceedings is likely to gain further political significance in the United Kingdom following the recent enactment of the Human Rights Act 1999. The Act incorporates the European Convention on Human Rights into U.K. domestic law. Article 6 states that 'everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'. The article additionally states that the press may be excluded in the interests of 'morals, public order or national security' or where 'the protection of the private life of the parties so require'. It also expounds that where 'publicity would prejudice the interests of justice' the judge may also exclude the press and public.

Irrespective of the technological developments that may occur, it is undeniable that electronic broadcast coverage of court proceedings will eventually change the British justice system permanently. It is therefore imperative that further and more detailed examination of this contentious issue is undertaken in both political and academic arenas.

 

Dr Paul Mason is Co-Ordinator of the Centre for Media & Justice, Southampton, England. He studied law at Southampton University before completing a doctoral thesis on the representation of punishment in popular culture. He has written on television crime drama and prison films and is currently writing a book on media interaction with and representation of the British police. He is undertaking further research concerning electronic broadcasts of court proceedings in the European Union.

1. See, among others, Brill, S. (1996) 'Cameras Belong In The Courtroom' in USA Today Magazine July vol. 125 no.2614 p.52; Lassiter, C. (1996) 'TV or not TV - That Is The Question' in Journal of Criminal Law and Criminology Spring 86 no.3 pp.928 -1095; Goldfarb, R (1995). TV or Not TV: Television, Justice and the Courts New York University Press New York p.88 ; Luft, G. (1997) 'Stopping the circus: "dignified" coverage of the Oklahoma City case' in Columbia Journalism Review March-April vol 35 no. 6 p.11; and Trigobov, D. (1997) 'Court coverage hindered by OJ backlash? Simpson debacle has changed the landscape for cameras in courtrooms' in Broadcast & Cable June 23 vol. 127 no. 26 p. 24

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