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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

No Lights, No Camera, No Action

Should Minnesota lawyers object to electronic media coverage in the state trial courts? The Supreme Court this month held a hearing on whether to modify current rules that constrain camera coverage of trial court proceedings unless all parties consent. Neither proponents nor opponents seem able to prove the benefits or the harms they argue would follow if the rules were changed to give media greater access.

For 25 years, the state of Minnesota has conducted an experiment, approved by the Minnesota Supreme Court, to determine whether to allow the news media to provide audio and video coverage of state trial court proceedings.1 Under the rules of the experiment, even if the judge believes such coverage is appropriate, every party to the case must consent.2 In other words, each party gets an automatic, no-questions-asked veto. KARE-11 investigative reporter Rick Kupchella finds that veto both absurd and anomalous: “There is no other point in a trial where the judge can be vetoed by the parties in conducting a proceeding in her own courtroom,” he says.

The party veto has meant that while coverage is allowed de jure, it is barred de facto. Media lawyer Mark Anfinson explains, “In the 1980s, when the experiment began, the media tried to get consent on a number of occasions, and invariably were refused if the case at issue was a criminal case. The more important the case, the more likely the request would be refused. … By some time in the 1990s, the media just quit asking because the rejection rate was so high.”

Because Minnesota’s lawyers have routinely opposed allowing cameras into the courtroom, there has been virtually no case in the state—certainly no high-profile criminal case—in the last quarter-century in which the news media have been able to make video or audio recordings of trial proceedings publicly available. Thus, the experiment has yielded no data on which to evaluate the harms and benefits of such coverage. Lucy Wieland, Hennepin County’s chief judge, put it bluntly: “The experimental program has been a failure.”3

Expanded Coverage Rejected

Given that failure, Minnesota’s news media believe it’s high time to try a different experiment. In March 2007, Anfinson’s clients, the Minnesota Joint Media Committee, Minnesota Newspaper Association, Minnesota Broadcasters Association, and Society of Professional Journalists, who together represent nearly all of Minnesota’s journalists, newspapers, and radio and television stations, petitioned the Minnesota Supreme Court to reconsider the rules. They’d like the judge, not the parties, to have the power to allow electronic media coverage of trial court proceedings.

So far, the news for the news media is not good. The Court referred the issues raised by the media’s petition to its Advisory Committee on General Rules of Practice.4 After spending several months researching and holding public hearings on whether cameras should be allowed in the state’s trial courtrooms, the advisory committee issued its recommendations on March 31, 2008. Though the report is not binding—the Minnesota Supreme Court will issue the final decision—16 of 19 committee members recommended that the parties retain veto power, concluding that there was simply “insufficient evidence to support relaxation of the current rules.”5

While the advisory committee could not evaluate any data from Minnesota itself (because there is none), the 35 other states that allow the press to use courtroom cameras on a regular basis offer a rich source of information.6 Three of the states with the most generous coverage rules are Minnesota’s immediate neighbors: Wisconsin, Iowa and North Dakota. Photographic, audio and video coverage is permitted in the vast majority of trial court proceedings in those states, subject only to the discretion of the presiding judge. Indeed, Minnesota news media often televise those proceedings; the Chai Vang trial in Wisconsin is a recent example.7

Judges, lawyers, and victim advocates from states that allow generous electronic media access to the courts offered uniformly positive reports on their experience to the advisory committee, but for every out-of-state witness with courtroom camera experience who was in favor of allowing such access, there was a Minnesota witness who was against it. Committee member Judge Mel Dickstein asserts that “no single factor was the driving force” behind the majority’s decision, but it was clearly prompted in part by the vehement objections of a parade of anti-camera prosecutors, defense attorneys, and victim advocates.

A Chilling Effect

Why does the prospect of allowing cameras in the courts remain so vexing to so many Minnesota lawyers, despite the apparently successful experience of neighboring states that have allowed camera coverage for many years? The most commonly cited reason is fear of a chilling effect on crime victims and witnesses. Several lawyers and victim advocates worried that if there is coverage of any court proceedings, victims and witnesses will refuse to report crimes or testify even in cases in which cameras are barred, believing, albeit incorrectly, that merely “being in court subjects one to camera scrutiny.”8

Charles Glasrud, Stevens County Attorney, said he feared that even those brave enough to come forward would likely “self-censor” if cameras were present.9 And Tom Frost, an advocate for child abuse victims, predicted that even if the rules flatly forbade coverage of testimony by children, the chilling effect would persist. “I don’t think that [such a rule] addresses the issue of how a child will see television,” Frost said. “They will not, in their limited ability, be able to understand that it won’t affect them directly.”10

To Judge Dickstein, such testimony was especially persuasive: “These children and other members of the community won’t know that exceptions exist or understand how they apply. Once they see cameras in the courtroom, the televising will silence some of the most vulnerable members of the community: children, the poor, the uneducated, the uninformed.” Dickstein continues, “These advocates were saying that once cameras are in the courtroom, and people see the images, that will have an inevitable impact on people’s willingness to come forward. That impact may be difficult to measure, but the lawyers and advocates have real-life experience with victims and witnesses, and they know these people will be reticent.”

While many of the Minnesota attorneys and advocates who testified were united in their belief that electronic coverage of trials would silence victims and witnesses, however, none cited any firsthandexperience of losing reticent victims or witnesses in a jurisdiction that allows such coverage. Dickstein concedes, “The committee saw no evidence that there has or has not been a chilling effect on victims or witnesses” in jurisdictions that do allow courtroom cameras.

Judge Steven Cahill, who coauthored the advisory committee’s Minority Report and Recommendation, found the absence of such evidence persuasive. Joined by two other committee members,11 Cahill urged that the current rules be relaxed to give the trial judge, in limited cases, the power to permit electronic coverage of court proceedings. Like the majority, the minority would bar coverage in “in every conceivable case where privacy is a concern.”12 That would include specific types of proceedings (e.g., sex crime cases; juvenile, child custody, and divorce proceedings; evidence suppression hearings), and cases involving specific types of witnesses (e.g., relocated witnesses, undercover agents, police informants).13 They would also forbid coverage of any juror, and of any witness who objected.14 The only difference between the two recommendations is that, in cases in which electronic coverage was not otherwise forbidden, the minority would eliminate the parties’ veto and give the presiding judge discretion to grant such coverage.

Cahill believes it is habit—not evidence—that motivated the majority to recommend what amounts to a continued ban on courtroom cameras. “Resistance to change comes from fear of the unknown,” he says. But as the minority’s report recounted, “No judge from any state where cameras have been permitted in the trial courts addressed the committee, either in person or in writing, to express any reservations about the concept or to tell us of any problems encountered in their states.” Further, no lawyer—no prosecutor, criminal defense lawyer, or civil litigator—and no victim advocate from such a state “appeared before the committee to lend credence to the concerns expressed by Minnesota prosecutors, criminal defense lawyers, civil litigators or victim’s rights advocates. If, indeed, problems are likely to arise in Minnesota as a result of the introduction of cameras in the courtrooms, one would expect that such problems would have arisen in other states” and that the advisory committee would have heard about them.15

Media attorney Anfinson contends that there is no evidence of such problems—and if there were truly a chilling effect, such evidence would be plentiful. “If there was such an effect, we would see it,” he claims. “It could be measured and quantified. We’d see a sudden drop in the reporting of crimes. But the chief justice of Ohio, and the former chief justices of Florida and Iowa, all say that they’ve experienced no such problems. Why would they say that if there had been cases in which victims were deterred or prosecutions disabled?”

Anfinson adds, “In the 35 states that do let in cameras, no one has detected any adverse effect on victims or witnesses. I don’t buy the idea that people wouldn’t have noticed. It’s a very convenient argument that there’s this terrible but unmeasurable, undetectable effect that we all have to accept on faith and therefore, we can’t let the public see the judicial system at work.”

Marna Anderson, executive director of WATCH, a victim’s advocacy organization, agrees that any chilling effect “is trackable. For example, you can look at people who go to victim’s services organizations but don’t go on to pursue action in the legal system. In states that have recently allowed coverage, we can find out from prosecutors if there’s been a change in victim or witness participation since cameras were allowed, and to what extent.” The sole victim’s advocate from Minnesota to testify in favor of trying cameras in the courts, Anderson urged the committee to approve a pilot project in which such research could be conducted—a proposal seconded by Judge Wieland and 7th Judicial District Judge Michael Kirk, who both volunteered to participate in such a program.16

The Soundbite Problem

A second common concern is that radio and television broadcasters will offer only “soundbites” from a given proceeding, and only in high-profile, sensational cases. Taken out of context, the advisory committee majority concluded, these soundbites would not “generally foster greater public confidence in the judicial system.”17

Judge Dickstein explains, “We hope that having cameras in the courtroom will help inform the public and contribute to the community’s understanding of the difficult decisions that courts make on a daily basis, but … what we see are soundbites in sensational cases, which do little to inform the community.” Contends State Public Defender John Stuart, “The broadcast media won’t develop both sides of a case that takes two weeks to litigate; they’ll go for an image that will grab people: pictures of someone crying uncontrollably, or a mutilated corpse.”

While credible studies show that broadcast stations often distill the majority of their coverage of a day’s court proceedings into soundbites or images of less than one minute each,18 that is the nature of the news media. Both print and broadcast journalists filter events for the public, offering analyses and summaries, peppered with quotes and images they believe are significant, exemplary or powerful. Reporter Kupchella notes, “There’s always a level of editing involved in story-telling, whether a person is writing, or shaping a message by editing footage.”

“There’s great value even in a single still photo that represents what’s going on in court, let alone in a 20- or 30-second soundbite,” Kupchella adds. “The viewer still has the opportunity to see for herself things that can’t be described all that well: the scene, the evidence, the emotions.”

Moreover, Kupchella counters, to presume that an image or a soundbite is necessarily “distorted” because it is not shown in the context of the complete proceeding “is to believe that the press inherently misrepresents what’s going on simply because editing is involved. … It is, in fact, increasingly more common to have unedited, streaming video of an event shown on the Internet, and that could be an added value. But to say that if you want to show the operations of the government, you must do it in full, in its entirety, gavel to gavel—even the President of the United States doesn’t get to have that.”

“The images don’t replace analytic pieces,” observes Anfinson. “You’re not going to get a montage of clips without analysis, without a coherent story focusing on what’s important. When the public can see, even for 20 seconds, a horrible murderer or rapist being sentenced, that has a terrific impact on the credibility of the system. It provides a powerfully reassuring message that justice will be done, and a powerful catharsis for the community to discharge its anxiety. There’s no substitute—and it may have a deterrent effect on other bad guys to show justice being done..”

O.J. and Anna Nicole

A few witnesses feared that courtroom cameras will affect trial participants’ behavior, creating spectacles of the O.J. Simpson and Anna Nicole Smith variety. Criminal defense attorney Jeffrey Degree declared, “Frequently, when the media turns its spotlight on a case, the reality is that people behave differently; cases get handled differently. We can only imagine the extent to which that would be exacerbated by the presence of cameras in the courtroom.”19

But on this issue, the majority and minority agreed there was no need for concern, as they heard of no such “grandstanding” from witnesses who work in states that allow cameras.20 As the minority’s report noted, “When one considers the many thousands of trials and other courtroom proceedings which have likely been covered by media with cameras in the courtroom in 35 states, and the fact that only two of them [Simpson and Smith] appear to have shown the court system in a bad light, it seems that the chances of anything of a similar nature happening in a Minnesota courtroom are slim, indeed.”21

The Time Cost

A fourth concern is that disputes over whether the judge in a given case should grant coverage will take too much time better spent elsewhere. State Public Defender Stuart remarks, “Because of budget cuts, [the State Public Defender’s Office is] losing 72 out of 440 public defenders. We don’t have time to be litigating camera issues with TV stations, and judges don’t have time either. Trying to help people get a fair trial takes all of our time.” The advisory committee concurred: “Some judge time, some prosecutor time, and some defense counsel time is inevitably expended dealing with concerns about whether camera coverage should be allowed, hearing disputes over this issue, and monitoring media compliance with any court-imposed guidelines. A majority of the committee concludes that these costs outweigh any benefits of changing the current rule.”22 However, no committee witness from a state that allows camera coverage at the judge’s discretion testified that the time necessary to negotiate and adjudicate coverage disputes constituted a major problem.

Weighing Costs and Benefits

The real issue, and the underlying dispute between the advisory committee’s majority and minority, concerns how to weigh the costs, actual and feared, against the benefits of allowing electronic media coverage of trial court proceedings.

While the majority report largely discounted those benefits, several witnesses reiterated that the primary advantage of courtroom cameras is, as Anfinson puts it, that the reporter’s “secondhand description of what occurred is replaced with the real thing: the real sentencing, the real testimony.” And while Stearns County Attorney Janelle Kendall argues that the “real thing” is already on full public view—“Come on down; the door’s open,” she offers—reporter Kupchella finds the invitation disingenuous. “People work; they have families; they can’t get to court from 9 to 5, but they still want to know what’s going on in their communities,” he says. The electronic media are the public’s eyes and ears, “the chief means by which the public gets information.”

Many witnesses stressed that allowing members of the public to see for themselves what really happens inside a courtroom would enhance public confidence in, and foster respect for, the decision-making process, assuring the public that justice will be done. Victim advocate Anderson testified that WATCH’s “experiences in the courts support the notion that with increased transparency and public access come increased judicial and system accountability. And increased accountability leads to a more effective and responsive justice system, and a more informed, educated and involved public.”23

Other witnesses suggested that judicial control over whether the media have camera access inside the courtroom may temper media behavior outside the courtroom. Ann Gustafson, coordinator of a Wisconsin victim-witness assistance program, testified that victims and witnesses find the media’s intrusiveness in the courthouse parking lot, at their homes, or at the cemetery during a funeral “much more traumatic … than having the camera in the courtroom.” In contrast, they find the professional behavior of the media crews inside Wisconsin’s courtrooms, and the presence of just a single camera that provides a feed that other media can use, allow them to “focus on the proceedings and to more or less forget about the media presence.”24 Similarly, former Polk County, Wisconsin, attorney Mark Biller remarked, “It is often media behavior outside of the courtroom, that we have no control over, that can be the most detrimental … . We found that if the news media wanted a camera in the courtroom badly, that gave us a mechanism for control, not only of what was happening in the courtroom, but also … over what was happening outside of the courtroom, because … the news media did not want to lose their feed.”25

To camera proponents, these benefits are far less illusory than the costs that camera opponents fear. For example, they contend that while a victim/witness chilling effect would indeed be a serious concern, the absence of any evidence of such silencing in states that allow courtroom cameras is enough to merit a testing phase in which such an effect could be tracked, and the rules revised if the data so dictate. Similarly, they find misplaced the concern that soundbites taken out of context will distort the public’s view of the judicial system. That is really a complaint about the press in general, rather than the broadcast media in particular; the prospect that the media will recount only part of the story, focusing only on a trial’s most sensational aspects, looms even if courtroom cameras are banned. Like broadcast reporters, newspaper reporters may be prone to telling the stories they believe will capture public attention, and there is no reason to believe that television and radio reporters who wait outside the courtroom to get audio or video recordings from trial participants tell a more complete story than they would were they recording inside the courtroom. Short of unconstitutionally barring press coverage of the courts altogether or censoring news media stories,26 it seems the better approach would be to allow the public to see more of the story for itself.

In the end, whether you come out pro- or anti-camera seems largely to depend on how you weigh the mostly unproved costs and benefits, and whether you demand evidence that the costs are real, or that the benefits are real. The advisory committee majority wanted camera proponents to establish that electronic courtroom coverage will aid the “search for truth and the administration of justice.”27 The minority put the burden on camera opponents, finding that “a more liberal rule should be adopted unless it can be shown that doing so is likely to degrade the administration of justice.”28 Because it is nearly impossible to prove either the feared costs or the asserted benefits of courtroom coverage, the choice of where to place the burden becomes outcome-determinative.29

Stay Tuned

By the time this article goes to print, the Minnesota Supreme Court will have held its own public hearing, scheduled for July 1, and should issue its decision before year’s end. There is reason to believe that the Court will be somewhat more amenable to opening the state’s trial courtrooms to cameras than was its advisory committee: Minnesota’s Supreme Court, as well as its appellate courts, routinely allow audio and video coverage of their proceedings.30 And whatever the Court decides, the public may soon be able to see recordings of trials in Minnesota’s federal courts; congressional legislation that would authorize cameras in all federal appellate and district courts is pending.31

Should the Court choose to allow cameras in state trial courtrooms on a more liberal basis, trepidatious Minnesotans can take heart from their neighbors’ experience. As Wisconsin prosecutor Biller testified, “We allowed cameras into our courtrooms time and again under well-drafted rules and strict control by the court. We never met the bogeyman.”32 s

Notes
[1] 1See “In re Modification of Canon 3A(7) of the Minnesota Code of Judicial Conduct,” Order (Minn. Sup. Ct. Apr. 1983); Canon 3A(11) of the Minnesota Code of Judicial Conduct; Minnesota Rule of General Practice 4.

2 Canon 3A(11)(c)(2) of the Minnesota Code of Judicial Conduct.

See Lucy Wieland, “Cameras in the Courtoom,” available at http://www.mncourts.gov/district/4/?page=1995.

4 The advisory committee’s voting members were: Hon. Elizabeth Anne Hayden (chair), Hon. Steven J. Cahill, Hon. Joseph T. Carter, R. Scott Davies, Hon. Mel I. Dickstein, Francis Eggert, Jennifer L. Frisch, Karen E. Sullivan Hook, Hon. Lawrence R. Johnson, Hon. Kurt J. Marben, Hon. Kathryn D. Messerich, Hon. Rosanne Nathanson, Dan C. O’Connell, Linda M. Ojala, Paul Reuvers, Timothy Roberts, Daniel Rogan, Hon. Jon Stafsholt, and Hon. Robert D. Walker.

5 Recommendations of Minnesota Supreme Court Advisory Committee on General Rules of Practice, Final Report 6 (Mar. 31, 2008) (“Advisory Committee Report”), available athttp://www.mncourts.gov/Documents/0/Public/Clerks_Office/Order_Gen_Rls_Hearing.pdf.

6 Radio and Television News Directors Association (RTNDA), Cameras in the Court: A State-by-State Guide (“RTNDA Guide”), available at http://www.rtnda.org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php.

7 Chai Vang is the Hmong hunter convicted of murder and attempted murder after shooting eight people while on a hunting trip in Wisconsin, killing six and injuring two.

8 Advisory Committee Report at 7.

9 Testimony of Charles Glasrud before the Minnesota Supreme Court Advisory Committee on General Rules of Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511.

10 Testimony of Tom Frost before the Minnesota Supreme Court Advisory Committee on General Rules of Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511.

11 The two other members of the minority were Hon. Elizabeth Anne Hayden, the committee chair, and Linda M. Ojala.

12 Advisory Committee Report at 20.

13 Proposed Minnesota Rule of General Practice 4.02(c)(v), (vi).

14 Proposed Minnesota Rule of General Practice 4.02(c)(i), (ii).

15 Advisory Committee Report at 22-23.

16 Testimony of Marna Anderson, Lucy Wieland and Michael Kirk before the Minnesota Supreme Court Advisory Committee on General Rules of Practice (Jan. 11, 2008), available athttp://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511.

17 Advisory Committee Report at 8.

18 See, e.g., Wendy Pogorzelski and Thomas W. Brewer, “Cameras in Court: How Television News Media Use Courtroom Footage,” 91 Judicature 124, 129-31 (2007).

19 Testimony of Jeffrey Degree before the Minnesota Supreme Court Advisory Committee on General Rules of Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511.

20 Advisory Committee Report at 6.

21 Id. at 23.

22 Advisory Committee Report at 7.

23 Testimony of Marna Anderson before the Minnesota Supreme Court Advisory Committee on General Rules of Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511.

24 Testimony of Ann Gustafson before the Minnesota Supreme Court Advisory Committee on General Rules of Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511.

25 Testimony of Mark Biller before the Minnesota Supreme Court Advisory Committee on General Rules of Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item=20511.

26 See, e.g.Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986); Near v. Minnesota, 283 U.S. 697 (1931).

27 Advisory Committee Report at 7.

28 Id. at 20.

29 The U.S. Supreme Court has not determined that the 1st Amendment either requires or forbids electronic media coverage of courtroom proceedings. See, e.g., Chandler v. Florida, 449 U.S. 560 (1981); Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). Thus, the standard will be whatever the Minnesota Supreme Court decides makes the best sense as a matter of policy.

30 See “Procedures for Requesting Cameras in Minnesota Courtrooms,” available at http://www.mncourts.gov/documents/0/Public/Court_Information_Office/

Procedures_for_Requesting_Cameras_-_Revised.doc.

31 See The Associated Press, “Senate Panel Endorses Cameras in Federal Courts” (Mar. 7, 2008), available at http://www.firstamendmentcenter.org/news.aspx?id=19772.

32 Testimony of Mark Biller before the Minnesota Supreme Court Advisory Committee on General Rules of Practice (Jan. 11, 2008), available at http://www.mncourts.gov/district/0/?page=NewsItemDisplay&item.


RALEIGH HANNAH LEVINE is a professor at the William Mitchell College of Law, where she teaches and writes on 1st Amendment and Media Law issues.

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