Federal Courtroom Camera Pilot ‘Set Up to Fail'

The gold standard of excellence for more than 80 years, Bloomberg BNA’s The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments...

By Sara Merken

Aug. 5 — A four-year pilot program that placed cameras in federal district courtrooms was “set up to fail,” a former judge told Bloomberg BNA. Still, the program provided unexpected benefits to students and new lawyers seeking to sharpen their trial skills, sources familiar with the program said.

In recent years, the issue of whether U.S. Supreme Court proceedings should be recorded and broadcast has drawn national attention. None of the justices have supported the use of cameras at the court after taking the bench.

But the attention paid to the Supreme Court may have caused many to overlook a pilot project that placed cameras in federal district courts from July 2011 to July 2015.

The Cameras in the Courtroom Pilot Project allowed 14 district courts to record civil proceedings with the consent of both parties and the approval of the presiding judge. The videos were then edited and published on the judiciary's website for free public use.

The program has been extended in three district courts in the Ninth Circuit, the Northern District of California, the District of Guam and the Western District of Washington, in order to “gather additional data on operational aspects of the program and to further evaluate its usefulness as an educational resource for the bar, legal academia and the general public,” David J. Madden, assistant circuit executive for public information in the Ninth Circuit Office of the Circuit Executive, told Bloomberg BNA.

“No other Circuit Council expressed a similar interest” to extend the program after the national July 2015 end date, David Sellers, a public affairs officer for the Administrative Office of the U.S. Courts, told Bloomberg BNA.

Results of the Pilot

The Federal Judicial Center analyzed the results of the pilot and found that the program “did not produce sufficient or persuasive evidence of a benefit to the judiciary,” according to a March 2016 Judicial Conference Committee on Court Administration and Case Management report (84 U.S.L.W. 1362, 3/17/16).

The FJC decided not to recommend a change in the camera policy because of a low interest level in the recordings, steep overall costs and a negative effect on witnesses, the report said.

About 10 percent of eligible proceedings were posted online, the report said. The published videos included trials, motion hearings and evidentiary hearings, and represented only 158 out of the 1,512 cases in which parties were notified about the opportunity to record, the report said.

The public accessed the videos online about 21,530 times in 2014, the FJC said, acknowledging the number was a best estimate.

The expenses for equipment, labor and video hosting totaled about $1 million, and the additional time and effort for the court staff was “extensive,” the report said.

There was a “fairly low level of interest” from the parties, as well as from participating judges. Out of the 198 judges in the involved courts only 62 volunteered for the program, and 32 actually recorded proceedings.

The camera presence also influenced and distracted attorneys, witnesses and jurors, the report said. The Committee said that changes to the camera policy “likely would increase that stress and affect in a negative manner witnesses' behavior,” according to the report.

‘Set Up to Fail.'

Some say the program would have been more successful if it included appellate courts and if it had been structured differently.

The design of the program “could have been tweaked” to encompass appellate courts, similar to a pilot that ran from July 1991 to December 1994, Gabe Roth, executive director at Fix The Court, an organization concerned with the Supreme Court's transparency and accountability, told Bloomberg BNA.

The 2011-2015 pilot included only district court proceedings, which can be a “mixed bag” of hearings, motions, preliminary injunctions and other events that make proceedings difficult to broadcast, he said.

Appellate arguments move more quickly and would require only one or two cameras compared to lengthy and more demanding district court trials, he said.

The pilot structure could have also required parties to opt out instead of consenting to opt in.

“The biggest challenge is that [the program] requires both parties' consent ... the downside is that isn't going to happen very often,” Melissa Muir, director of administrative services for the Western District of Washington, told Bloomberg BNA.

The Administrative Office could send a schedule of the trials, and the parties with particular reasons to opt out could file a motion describing the circumstances, Roth said. The courts would then be able to obtain more statistically significant data, he said.

Requiring consent from both parties is “part of why [the pilot] was set up to fail,” former Judge Robert Pratt from the Southern District of Iowa told Bloomberg BNA.

Transparency in the Courts

Pratt volunteered to participate in the program because he wanted to show the public what actually happens in the courtroom, he said.

“The perception of what we do is so different than the reality. I think if everybody could see what we do, we would enhance our own credibility,” he said.

“I literally didn't know it was ongoing” once recording started, Pratt said. “Your mind is concentrated on the trial, on the jury, on this and that,” instead of cameras, he said.

The courts are made for more than those directly involved with the proceedings, he said, and the public should have the opportunity to experience the court.

“Here is the reality,” Pratt said. “There's a reason that there is not a court TV channel. People think it's boring and unimportant, but to the jurors and the litigants it is the most important thing in the world.”

Roth, the transparency advocate, said it is “perfectly reasonable for citizens to want to see their government officials in action ... to trust that justice is being done.”

Academic, Historic Learning Tool

Law students and new attorneys are among the unanticipated audience that benefit from the videos.

“[The program] has been useful to the bar and to law schools and to the public education side” on a practical level, Muir said.

Pratt said he received letters from large law firms that used the recordings as a teaching method for young trial lawyers who are breaking into the field.

“I never imagined that would happen,” he said.

Karen M. Lockwood, executive director at the National Institute for Trial Advocacy (NITA), said that live demos and videos are more exciting for lawyers to watch and will give them a better sense of which words to use and questions to ask in trial.

“Everybody loves watching cross examination on broadcast trial,” Lockwood said. “What we teach on cross examination is how to make the magic happen,” she added.

Another unlikely group that can benefit from court videos are middle and high school students, Lockwood said.

Recorded proceedings can serve as a tool for adolescents to learn how to argue a stance on an issue, as well as to educate students more about this aspect of the legal profession. High school students involved in mock trials can also find value in the videos, she said.

Maintaining video records of trials is also beneficial for historical purposes, because the public would be interested in watching the current Supreme Court justices argue before the court when they were attorneys, Roth said.

“There are certain seminal cases that have been lost in history because there was no video,” he said.

Cameras in Supreme Court?

The Supreme Court would need nine younger justices who grew up learning from video to unanimously agree to record proceedings, Roth said.

“Some of the older justices in each generation have been against [cameras], and that has put some pressure on the younger justices to switch their opinions,” he said.

The expectations may have been different 200 years ago, but people in the current age understand information better through video, he said. The other two branches use visuals and the Supreme Court should too, he said.

“Judges who later become justices on the Supreme Court all of a sudden change their mind about openness,” Pratt said.

To contact the reporter on this story: Sara Merken at smerken@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.