Happy New Year to Connecticut’s media. On January 1st new rules took effect, passed by the Rules Committee of the Judicial Department, now allowing for the televising of nearly all criminal proceedings. What was previously an experiment is now going to be a permanent addition to our criminal courts. Matters involving allegations of sexual assault and juveniles will not be televised. Juvenile cases are not considered adult prosecutions and are conducted in sealed courtrooms. Victims of sexual assaults have long been provided anonymity in our recorded criminal proceedings. The victims are referred to by initials in all published court records.
The new rules spell out the procedure for a media application for permission to televise. One stationary camera and microphone will be permitted. Jury selection and jurors will not be televised. Conferences between lawyers and the Court at the bench are also off limits, as are discussions between an attorney and client or shots of the papers at counsel table. Preserving the anonymity of jurors during the trial is particularly critical. The reactions of TV pundits like Nancy Grace and the resulting public condemnation of the Casey Anthony jurors proves the need to protect jurors from exposure during the trial. Connecticut does not favor sequestering jurors during trials, even those as sensational as the recent Cheshire cases. Displaying the faces and names of jurors creates a risk that someone will attempt to influence or threaten a juror.
Preserving client confidentiality is the driving reason behind prohibiting filming counsel and client exchanges. The public’s right to know, which stems from the First Amendment, does not permit unfettered intrusion into the behind-the-scenes exchanges between a defendant and counsel. Bench conferences are intended to be outside the hearing of the jury. If those conferences were recorded by the media it would create a risk that jurors could ultimately learn information that was specifically kept from them to preserve the fairness of the trial process.
The biggest issue facing lawyers and judges alike is how to conduct themselves under the constant spotlight of the media. Judge Ito, who presided over the O.J. Simpson murder trial, is the model for what judges should NOT do.
Ito was enamored with the spotlight and it diverted him from conducting himself with appropriate decorum. In contrast, Judge Belvin Perry, who presided over the Casey Anthony trial, was the model of judicial temperament and decorum. Televising trials should cause judges to work assiduously to ensure the fairness and balance of the process. The written record of a trial fails to display judicial demeanor. A judge’s body language and voice inflections can have an impact on a jury’s perception of certain testimony. The visual record is undeniable if a judge crosses the boundaries of impartiality. Under the correct circumstances televised trials provide needed transparency to the criminal justice process.
Lawyers playing to the TV viewers have no place in the courtroom. It is not a stage. There is always an element of theater in a successful trial lawyer, but with limits. A lawyer should comport himself or herself in front of the cameras no differently than if there were was no camera there. The added by-product of the televised camera will allow the public to truly gauge the effectiveness of an attorney. As lawyers we should feel compelled to act with the respect and decorum the courtroom demands. It is not the Gong Show.
The unfortunate downside to televised trials is the ability of TV producers to edit what is actually shown to the public. I favor a C-Span type approach, where the evidence is displayed in its entirety, without editorial bias. That bias was apparent in the manner in which HLN and TruTV televised portions of the Anthony trial. The commentators, for the most part, displayed an anti-Anthony bias in the commentaries that accompanied the televised testimony. As a veteran of many appearances on the former CourtTV I came to understand that not everything that occurs in a trial can fit within the format of a program. Constraints of time and the need to focus on the most critical evidence certainly justify editing content for the viewers. Editing content to fit the bias of a media commentator should not be permitted.
Unfortunately, there is nothing our judges can do to ensure the fairness of comments and presentation to the public. We have to trust in the integrity of the media. One would hope that those who make the editorial decisions are guided by the same demand for transparency in their actions that they are demanding of our courts. If the coverage of the Anthony trial is any foreshadowing, I don’t have a high degree of confidence in that regard.
