[Senate Hearing 109-331]
[From the U.S. Government Publishing Office]
S. Hrg. 109-331
CAMERAS IN THE COURTROOM
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 9, 2005
__________
Serial No. J-109-50
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
prepared statement............................................. 78
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 88
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 2
prepared statement........................................... 90
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 6
prepared statement........................................... 107
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 4
prepared statement........................................... 137
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Bergman, Barbara E., President, National Association of Criminal
Defense Lawyers, Washington, D.C............................... 18
Berlin, Seth D., Levina, Sullivan, Koch and Schulz, LLP,
Washington, D.C................................................ 21
Cochran, Barbara, President, Radio-Television News Directors
Association, Washington, D.C................................... 27
DuBois, Jan E., Judge, District Court for the Eastern District of
Pennsylvania, Philadelphia, Pennsylvania....................... 12
Irons, Peter, Professor of Political Science, Emeritus,
University of California at San Diego, San Diego, California... 20
Lamb, Brian P., Chairman and Chief Executive Officer, C-SPAN
Networks, Washington, D.C...................................... 23
O'Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth
Circuit, Portland, Oregon...................................... 10
Schleiff, Henry S., Chairman and Chief Executive Officer,
Courtroom Television Network, LLC, New York, New York.......... 25
SUBMISSIONS FOR THE RECORD
Bergman, Barbara E., President, National Association of Criminal
Defense Lawyers, Washington, D.C., prepared statement.......... 39
Berlin, Seth D., Levina, Sullivan, Koch and Schulz, LLP,
Washington, D.C., prepared statement........................... 47
Cochran, Barbara, President, Radio-Television News Directors
Association, Washington, D.C., prepared statement.............. 70
DuBois, Jan E., Judge, District Court for the Eastern District of
Pennsylvania, Philadelphia, Pennsylvania, prepared statement... 79
Irons, Peter, Professor of Political Science, Emeritus,
University of California at San Diego, San Diego, California,
prepared statement and attachment.............................. 92
Lamb, Brian P., Chairman and Chief Executive Officer, C-SPAN
Networks, Washington, D.C., prepared statement and attachment.. 98
O'Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth
Circuit, Portland, Oregon, prepared statement.................. 110
Schleiff, Henry S., Chairman and Chief Executive Officer,
Courtroom Television Network, LLC, New York, New York, prepared
statement...................................................... 119
CAMERAS IN THE COURTROOM
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WEDNESDAY, NOVEMBER 9, 2005
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:33 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Grassley, Sessions, Leahy, and
Schumer.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Judiciary Committee will now proceed on our hearing on cameras
in the courtroom. The Ranking Member will be joining us very
shortly.
This is a subject of enormous importance to the American
people on the basics of understanding how the Government
functions. Senator Grassley, who is our lead witness today, has
had legislation pending on cameras in the courtrooms of the
circuit courts and the district courts, and I have had
legislation pending since 2005, for some 5 years, to open up
the Supreme Court of the United States to cameras.
The Supreme Court, as our system of Government has evolved,
is deciding the cutting-edge questions of our day, decisions on
who will live and who will die, what is the power of the
President, what is the relative power of the Congress, whether
marijuana may be used for medicinal purposes, where the balance
will lie in a woman's right to choose, what DNA evidence may be
used to exonerate the innocent. The whole range of cutting-edge
questions have been left really to the Supreme Court of the
United States.
In the year 2000, the Court in effect decided who would be
the President of the United States. There was the largest array
of television truck that I have ever seen--and I have seen
assemblages of television trucks--in front of the Supreme Court
building when that case was decided. And it was, I thought,
most unfortunate that the cameras were not allowed inside so
that the American people and the people of the world could see
precisely what was going on.
At that time, Senator Biden and I had written to the Chief
Justice urging that the case be open to television. The Chief
Justice declined. They did release an oral transcript shortly
after the hearings ended, and that was illuminating, but far
from what would have been apparent had cameras been in the
courtroom.
The House of Representatives and the Senate have been
televised now for decades. And I think at the outset there
might have been some grand-standing, so to speak, but it has
been an enormously useful tool for public understanding as to
how the Congress works.
The hearings of the House and Senate have long been
televised. The comments that I hear most frequently about
television relate either to the NFL, the World Series or C-
SPAN, and late-night viewing is practically captured by C-SPAN.
It is my thinking that the Congress has the authority to
legislate on cameras in the courtroom for the Supreme Court.
The Congress makes the determination as to how many justices
there are on the Court. The Congress makes the determination of
what is a quorum for the Court. The Congress makes the
determination for when the Court will begin its session on the
first Monday in October. The Congress has imposed time limits
for the Supreme Court. And by analogy to those lines, I think
it is fair for the Congress to legislate in this field.
Obviously, if the Supreme Court decides as a matter of
separation of powers that it is not a Congressional
prerogative, we will not petition for a rehearing. That will be
the judicial decision which we respect since Marbury v.
Madison.
We have a distinguished array of witnesses today. Our lead
witness is Senator Charles Grassley, the senior Senator from
Iowa. He came to the U.S. Senate in 1980, a banner year for
Republicans. Some 16 Republicans were elected that year, and
two of them were Charles Grassley and Arlen Specter, and the
only two survivors are the two of us.
Senator Grassley was once analogized--I am going to be a
little more liberal with the time, since no other Senator is on
the panel. I usually stop promptly with the red light. Senator
Grassley was analogized or compared to President Harry Truman
as being very plain-spoken. The expression was ``horse sense,''
and with Senator Grassley's background as a farmer, he took it
as a compliment and it was intended as a compliment. And I can
say that with some certainty because it was my statement about
Senator Grassley.
Welcome, Senator Grassley. You are a distinguished member
of this Committee, you are a distinguished member of the
Senate, and we look forward to your testimony.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Well, thank you very much for giving us
an opportunity to speak about openness in our courts. As you
know, I have long championed this, most recently with Senator
Schumer, going way back to the 106th Congress when we first
introduced the sunshine bill. Over the years, it has enjoyed
bipartisan cosponsorship, and we have had the opportunity of
getting our bill out of this Committee three times since that
106th Congress.
Just a couple of months ago, the new Chief Justice
testified before our Committee about this issue when I and
several members asked, and he seemed to have a great deal of
open-mindedness on this subject. Today's hearing, I hope, will
help him with facts needed to make decisions to open the
Supreme Court, as well as other Federal courts, to cameras. As
you know, the House Judiciary Committee just passed out by a
vote of 20 to 12 a House companion that was introduced by
Congressman Chabot.
The Grassley-Schumer bill will give Federal judges the
discretion to allow for photographing, electronic recording,
broadcasting and televising in Federal courts. The bill will
help the public become better acquainted about the judicial
process, produce, I think, a healthier judiciary, increase
public scrutiny, bring greater accountability, and I think help
judges to do a better job. The sun needs to shine in on the
Federal courts.
In this room, we often talk about the intentions of the
Founding Fathers. I think allowing cameras in the Federal
courtroom is absolutely consistent with their intent that
trials be held in front of as many people as choose to attend.
I believe the First Amendment requires court proceedings to be
open to the public and, by extension, news media.
As the Supreme Court articulated in 1947, in Craig v.
Harney, quote, ``A trial is a public event.'' Another quote:
``What transpires in the courtroom is public property.'' The
Supreme Court stated in its 1980 ruling in Richmond Newspapers,
``People in an open society do not demand infallibility from
their institutions, but it's difficult for them to accept what
they are prohibited from observing.''
Beyond the First Amendment implications, enactment of our
bill would assist in the implementation of the Sixth
Amendment's guarantee of public trials in criminal cases. In
its 1948 Oliver opinion, the Supreme Court said, quote,
``Whatever other benefits the guarantee to an accused that his
trial be conducted in public may confer upon society, the
guarantee has always been recognized as a safeguard against any
attempt to employ our courts as instruments of persecution.''
The Court stressed that, quote, ``The knowledge that every
criminal trial is subject to contemporaneous review in the
forum of public opinion is an effective restraint on possible
abuse of judicial power,'' end of quote. Louis Brandeis
captured it better by saying ``Sunshine is the best
disinfectant.''
During this morning's hearing, we are going to hear from
opponents. Much of their opposition is based on speculation and
false assumptions. The criticism ignores the findings of at
least 15 State studies and a large Federal pilot program.
The widespread use of cameras in State court proceedings
shows that still and video cameras can be used without any
problems and that procedural discipline is observed. All 50
States allow for some modern audio-visual coverage of court
proceedings. My own State of Iowa has done this for almost 30
years.
There are many benefits and no substantial detriment to
allowing greater public access to the inner workings of our
courts. Fifteen States conducted studies aimed specifically at
the educational benefits derived from cameras. They all
determined that camera coverage contributed to greater public
understanding of the judicial process.
Further, at the Federal level, the Federal Judicial Center
conducted a pilot program in 1994 which studied the effects of
cameras in selected courts. That study found, quote, ``small or
no effect of camera presence on participants in the proceeding,
courtroom decorum, or the administration of justice,'' end of
quote.
However, in order to be certain of the safety and integrity
of our judicial system, we have included a 3-year sunset. It is
also important to note that the bill simply gives judges the
discretion to use cameras in the courtroom. It does not require
the judges to do that. The bill also protects anonymity of non-
party witnesses by giving them the right to have their voices
and images obscured.
So this bill doesn't require cameras, but allows judges to
exercise their discretion to permit cameras in appropriate
cases. I think it guarantees safety for our witnesses and
doesn't compromise that safety. So I hope we can pass it out of
our Committee once again, Mr. Chairman.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Grassley.
We have been joined by Senator Sessions.
Senator Sessions, would you care to make an opening
statement?
Senator Sessions. No, Mr. Chairman. I just would say that I
chair the Administration and Courts Subcommittee and I have
given a lot of thought to this. I think we need to go carefully
here and I am looking forward to the panel and discussing the
issues.
Chairman Specter. Thank you very much, Senator Sessions.
We now turn to another distinguished member of this
Committee, Senator Charles Schumer, from the State of New York.
Senator Schumer went directly from the Harvard Law School to
the New York Assembly and then directly to the U.S. House of
Representatives, and then in 1998 was elected to the U.S.
Senate, much to the dismay of his parents, as he has told the
story, right from law school to public service without any
intervening big bucks.
Chuck Schumer is dedicated to public service in a big way.
He has run into big bucks, however, not for himself personally,
but in his prodigious fundraising capabilities. He can give
tips to all of his 534 colleagues on television access. May the
record show he is nodding in the affirmative.
We find him to be very, very active and a great contributor
to this Committee and we welcome him here this morning for his
testimony.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Well, thank you, Mr. Chairman. I
appreciate your, I guess, kind introduction and am honored to
serve with you. I would note two quick things. I came to the
Congress in 1980. You mentioned, I think, 16 new Senators. I
was one of seven freshman Congressmen from New York, a
Democratic blue State, six Republicans and myself. And I think
I am--let's see--yes, I think I am the only one who is still
there, too, just as you and Senator Grassley are. The other
thing that links Senator Grassley on this bill is we are the
only two ``Charles Es'' in the Senate who are nicknamed
``Chuck.''
Anyway, thank you, Mr. Chairman. I want to thank you and
Senator Leahy for scheduling this hearing. It is an important
hearing about people's ability to participate in this great
democracy.
Public interest in our court system is higher than ever,
and that is a good thing because our democracy is stronger when
participation is strong. No branch of our Government has
remained a greater mystery to average people than our Federal
courts, and that is a shame because the decisions of our courts
and the judges who sit on them, judges who get a lifetime
appointment, have tremendous consequences for everyday lives.
An example: No case has had a more profound effect on the
lives of Americans as much as when the Supreme Court helped
decide the Presidential election 5 years ago in Bush v. Gore.
We all remember that case. no matter what side you were on, you
were riveted every step of the way. There was lots of concern
then and there still is a lot of talk about that case now, but
the Court realized that, and this is what is so interesting.
With Bush v. Gore, the Court also made history in one other
way. For the first time in its history, the Court released an
audio tape immediately after the proceedings. The tape was
broadcast all over television and all over the radio. Millions
of Americans listened intently just to get a feel for what was
going on inside the hallowed halls of the Supreme Court. And
ask any one of them if they would have liked to have the
opportunity to watch the proceedings and the answer would have
been an overwhelming ``yes.''
Well, if the Court did that in Bush v. Gore, a case very
important particularly to people who care about politics, when
they get a case on disability, there are people who care about
that maybe more so. When they get a case on the environment,
there are people who care about that. When they get a case on
business law, there are business leaders who care about that.
I think the same standard ought to hold, and that is why I
am proud to cosponsor a bill with my colleague, Senator
Grassley. As he mentioned, we have worked on this a long time
together and we have had some success in moving it out of this
Committee. I think this is the year to make this law.
The reason for the bill is simple: it is openness. Courts
are an important part of our Government. The more people know
how government works, the better. But the Federal Government,
as has been mentioned, lags far behind the States. I want to
give another example in my own home State of how openness
worked.
We have allowed televised trials for decades. It has been a
great success. The critics say, oh, the cases of strong passion
will become circuses and everything else. Well, there was no
case New Yorkers felt more strongly about than the case of
Amadou Diallo. Four police officers were eventually acquitted,
but they were accused of shooting Diallo, a Nigerian immigrant,
in cold blood.
Because the case got such wide concern, the venue was moved
from the Bronx to Albany, but the judge wisely permitted live
TV coverage. It allowed anyone who was interested to watch the
entire trial, whether they lived in the Bronx, the neighborhood
where it occurred, or elsewhere. The cameras were not
disruptive. The lawyers acted professionally. The rights of
witnesses were not curtailed. Witnesses and jurors were not in
the room, and so it didn't diminish the dignity of the court.
But at the same time, when the public--many people
particularly in the African-American community were very upset
about this and when they were able to watch the proceedings,
most people agreed, whether they agreed with the outcome or not
that the jury decided, that it was a fair trial. That wouldn't
have happened if we didn't have cameras in the courtroom. For
people to just read the newspaper accounts doesn't give the
same thing.
So this works. Allowing cameras into our courtrooms will
help demystify the courts. Let the public evaluate how well the
system works. Only then will the public really be able to
decide based on facts and real knowledge what changes need to
be made.
Finally, as Senator Grassley mentioned, there are instances
where cameras are not appropriate and this bill takes care of
that by granting discretion to the judge. We don't really tie
the judge's hands on this even though, as you note, Mr.
Chairman, we probably could, although the court would have to
rule on that ala Marbury v. Madison.
But if the judge thinks that televising a trial would be
harmful--maybe he thinks it is unfair to the defendant, maybe
there are privacy concerns--the judge could ban it. It also
allows witnesses to request, as was mentioned, that their
voices and images be obscured.
So the risk here isn't turning courtrooms into a circus or
unduly invading someone's privacy. The risk is the danger we
pose to our society and our democracy when we close off our
institutions to the people they are supposed to serve.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Schumer.
I turn now to our distinguished ranking member, Senator
Leahy.
Senator Leahy. Well, Mr. Chairman, I would just as soon
wait for Senator Grassley. Oh, you are done, OK. Well, then, I
will speak.
Chairman Specter. Do you think we would call on Schumer
before Grassley?
[Laughter.]
Senator Grassley. I am sorry you missed it, too.
Senator Leahy. I know these two are not just two pretty
faces; they are here for substance. I didn't realize Senator
Grassley had already spoken. I was going to wait for him.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. I am glad to see this hearing. I am the son
of a printer. My parents not only had a printing business, but
for a while ran a small newspaper. So I come by my affection
for the First Amendment very honestly and directly. My father
instilled in me the sense that the freedom of speech in the
First Amendment is the foundation of this democracy. But it
also assures that we will have access to our Government.
When I was a young man--actually, when I was a young
prosecutor in Vermont, Vermont even then had this culture of
open government. We could talk to our elected officials and
meet with them on a regular basis. You can have balances for
security, but there has to be this transparency. We have to
know what is going on. A democracy works best when there is
sunshine in government.
I think right now there is this dramatic shift toward
secrecy in the government, and that is bad; it hurts the whole
country. So we have to expand access to government for all
Americans. I have tried to make all three branches of our
Government more transparent and accessible. Congress and its
committees, except for a rare secret session, are open and
carried live on cable television, C-SPAN, and radio. Members
and the committees use the Internet and the Web to let us know
what is going on. The executive branch is subject to FOIA, the
Freedom of Information Act.
We then have the third branch. Now, most judicial
proceedings are open to those who can travel to the courthouse
and wait in line and they can see what is going on. But
emerging technology could invite the rest of the country into
that same courtroom. You wouldn't have to travel there. Whether
I am sitting in my little farm house in Middlesex, Vermont, or
somebody is in their office, anybody could be in that
courtroom, with technology.
All 50 States have allowed some form of audio or video
coverage of court proceedings, but the Federal courts lag
behind. I have cosponsored several bills to address this,
including two bills currently pending--the one we have talked
about, the Sunshine in the Courtroom Act of 2005, and the
Televising Supreme Court Proceedings Act with Senator Specter.
The First Amendment is one of those magnificent bequests to
all Americans and we have to protect it for succeeding
generations. It is a fragile gift; it needs nurturing and it
needs protection by every new generation. Let's use the
technology available to this generation to give even greater
guarantees to that amendment and the free and open government
it facilitates.
It is time to let some sunshine into our Federal courts.
The Federal courts are the bulwark for the protection of
individual rights and liberties. The Supreme Court is often the
final arbiter of constitutional questions having a profound
effect on all Americans. Why not allow the public greater
access to the public proceedings of the Federal courts? That is
going to allow Americans to evaluate for themselves, ourselves,
all of us, the quality of justice in this country.
They are there for all 280 million Americans. Let all 280
million Americans know what is going on. It can deepen the
understanding of the work of the courts, but it can also deepen
our understanding that it is our rights that are there being
protected. It is a fascinating subject and it is time for this.
I remember when I first came to the Senate we did not have
television. We brought in radio during the Panama Canal
debates. People tuned in throughout the country; they got
involved. Then we added television. That was an interesting
experiment, and sometimes it has been good and sometimes it has
been bad. Sometimes there has been posturing and sometimes
there have been riveting matters. But the American people could
see what they had a right to see if they traveled to
Washington, stood in line and went in there. Well, I can see
what goes on in my Federal court if I travel to the court,
stand in line and go in there. I want to be able to see from
wherever I am.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Leahy.
Just a question or two, Senator Schumer. Do you think that
the presence of the cameras in the Senate has any significant
effect on promoting grand-standing or hot-dogging among the
Senators?
Senator Schumer. I really don't. I think that the overall
benefit of having C-SPAN, with millions of Americans watching--
there are now call-in shows where people respond to what is
going on--has been extremely salutary for our democracy. I
think it is great.
Chairman Specter. That is the next question. What do you
hear from your constituents about viewing C-SPAN and watching
the Senate proceedings, and how much enlightenment does it give
them as to what we are doing?
Senator Schumer. Mr. Chairman, I am amazed at how many
people actually tune into C-SPAN and how often you hear it. I
mean, maybe the average person doesn't, but a large number of
people do. And, again, it has demystified the Congress. It is
different having an intermediary tell you what happened through
their eyes rather than seeing it through your own eyes. And
what C-SPAN does and what cameras in the courtroom do is let
anyone who wants to, as Patrick Leahy said, view it themselves.
Chairman Specter. How about the C-SPAN coverage of
hearings? How many of your friendly insomniacs tell you that
they saw you at 3 a.m. or at some other ungodly hour?
Senator Schumer. I agree. You hear about it all the time
for hearings and for everything else. Have there been
occasional times, I guess, when people might regret having C-
SPAN in the Senate chamber and the hearings? Once in a blue
moon, very, very rarely, and the benefit is every day, every
minute.
Chairman Specter. Senator Leahy.
Senator Leahy. The Chairman talked about the insomniacs at
three o'clock, but they are making that choice to watch it.
Senator Schumer. You got it.
Senator Leahy. And I know the number of e-mails and letters
I get even from a little State like Vermont from the number of
people who watch. But doesn't it also, though, come down again
to if you have an interest in what is going on in that court,
you can watch it?
Senator Schumer. Exactly.
Senator Leahy. You have been there for Supreme Court
arguments, as I have. I am a member of the Supreme Court bar.
Senator Specter has argued cases there. We know that some of
the cases can be awfully arcane. Fine, but the case that we may
find arcane may have a very, very direct relationship to
somebody else's rights or interests. Why not be able to watch
it?
Senator Schumer. Right.
Senator Leahy. And I again I come back to the point that if
you can spend the money to travel to where the court is and
stand in line, you might get in and watch it. It is an open
courthouse. Why shouldn't it be open to everybody?
Senator Schumer. Exactly.
Senator Leahy. So, Mr. Chairman, I thank you for having
these hearings, and I agree with Senator Schumer and I agree
with you and Senator Grassley.
Chairman Specter. Senator Sessions.
Senator Sessions. I thank the Chairman and, Senator
Schumer, for your remarks. I think they are worthy of serious
consideration. We serve on the Courts Subcommittee together.
During that Democratic spring, you chaired the Subcommittee,
and now I chair that Subcommittee.
I believe the courts are somewhat different than Congress.
I believe the primary charge of a court is to provide justice
in the case before it, not to entertain and to create
circumstances that might undermine that. So as a person who
spent a lot of time in the courtroom who dealt with witnesses,
talked to them, held their hand, seen them cry before going in
there, many times I comforted them to say, well, probably all
that is going to be there is some of the family and a few other
people, and don't worry about that. That was some comfort to
them.
Judges and polls show that witnesses would be affected by
the fact that what they may say about most intimate, personal,
emotional issues, family disputes or love affairs and those
kinds of things, personal admissions of errors and wrongdoing,
or maybe even criminality that they participate in that they
have to testify to--I think it is a basis for concern
particularly in the trial court. The ability to get truth and
witnesses to cooperate and testify accurately would be
undermined. That is what the judges believe and that is where I
am, particularly on the trial court.
I am not unhappy with the process that is established now
for the circuit courts, and believe the proposed legislation
that allows the presiding judge to make the call rather than
the judicial council would be less satisfactory. That would be
an aberrational process that would be not as justified, in my
view, as a uniform council policy.
The Supreme Court obviously has begun to loosen up some.
They have allowed their arguments to be taped and produced, but
they likewise have given this consideration quite a number of
times and have concluded that they do not wish their lawyers
and the process to be a television show, and that they would
prefer it be focused on the law of the case.
The judges ask awfully technical, legal questions. That is
what the American rule of law often is, is standing and
procedural matters and statutes of limitations and those kinds
of things. There could be a tendency, I think, even for judges
to go more away from those issues and to the dramatic issue
that may have attracted the attention of the public. So I think
the court is wise to consider this.
I think someone asked new Chief Justice Roberts what his
views were on this subject, and I am not sure what he said, but
he obviously has left it open and the Court has the ability to
do that.
So, Mr. Chairman, I know that there is a strong push for
this. I know a lot of the TV networks would like to see this
occur. I respect what they do and respect the work that they
perform, but my feeling at this point is we should be very
careful about this. And particularly by personal experience
with Federal district courts, we should not go forward to allow
cameras in the courtroom.
Chairman Specter. Senator Sessions, when you say you
weren't quite sure what Chief Justice Roberts said in response
to the question--
Senator Sessions. I think you asked it, maybe.
Chairman Specter. Oh, I asked him.
Senator Sessions. What did he say, Mr. Chairman?
Chairman Specter. Well, first, I want to comment where you
said you weren't sure about what he said. Many of us weren't
sure about what he said in answer to many questions.
[Laughter.]
Chairman Specter. His response to that question was that he
had an open mind. That was before he was confirmed, however. My
view has been that the nominees answer about as many questions
as they think they have to and they are as compliant as they
can be consistent with their consciences and what they may do
later.
Senator Sessions. You are a wise and experienced Chairman,
Mr. Chairman.
Chairman Specter. We will revisit that. There are more
people on television. I walked into my office this morning and
saw Justice Breyer on television. You see Justice Scalia on
television. It is coming.
Senator Sessions. Mr. Chairman, I would say this, that in
the evaluation of it I think the least detrimental would be the
Supreme Court. The next least detrimental consequences perhaps
would be the courts of appeals, and the most detrimental from
my perspective would be the trial courts. So we will just see
how it goes and I look forward to the hearings.
Chairman Specter. Thank you for that, Senator Sessions. I
am putting you down in my tally sheet as leaning.
[Laughter.]
Chairman Specter. We are going to now turn to the judicial
panel.
Thank you very much for joining us, Senator Schumer, and
you are welcome to stay.
Senator Schumer. Thank you.
Chairman Specter. Our next witness is Judge Diarmuid
O'Scannlain, a Ninth Circuit, having been confirmed in 1986. He
has had a distinguished record in public service in a variety
of positions. He was on the Advisory Panel for the U.S.
Secretary of Energy. He had been the Director of the Oregon
Department of Environmental Quality, Deputy State Attorney
General for Oregon. He served in the Judge Advocate General
Corps. He has a bachelor's from St. John's and a law degree
from Harvard, and a J.D. and LL.M. from the University of
Virginia.
Thank you for joining us, Judge O'Scannlain, and we look
forward to your testimony.
STATEMENT OF DIARMUID F. O'SCANNLAIN, JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PORTLAND, OREGON
Judge O'Scannlain. Thank you very much, Mr. Chairman and
members of the Committee. My name is Diarmuid O'Scannlain,
United States Circuit Judge for the Ninth Circuit, with
chambers in Portland, Oregon. I thank you for inviting me to
share my personal experience with televised proceedings of the
U.S. Court of Appeals for the Ninth Circuit.
Our court is one of two courts of appeals involved in a
pilot program under which audio equipment, still cameras or
video cameras can be admitted to the courtroom upon request and
with approval from the panel hearing the case. Since 1991,
until last week, we have logged 205 requests to allow media
into oral arguments. Of these requests, the panels granted 133.
But to give some perspective, the Ninth Circuit has heard
oral arguments in approximately 24,000 cases since 1991,
meaning that media requests for videotaping or live television
have been requested in less than 1 percent of the total cases
receiving oral argument.
To gain access to a Ninth Circuit courtroom, a member of
the media with cameras need only fill out a simple form
requesting very basic information. The clerk of the court then
transmits the request to the panel, which can grant or deny the
request by majority vote of the judges assigned to that case.
The Ninth Circuit requires media representatives to obey
modest guidelines which request proper attire, ban the use of
flash photography or other potentially distracting filming,
prohibit the broadcast of any audio conversations between
clients and attorneys, and limit the total number of cameras
that can be present for any single oral argument.
The Committee might also be interested to know that the
Ninth Circuit currently makes audio playback of all oral
arguments available through its website the day after the
hearing, and frequently provides a live audio feed of oral
arguments in certain cases. Further--and this may not be
generally known--all arguments are recorded on the court's
unobtrusive internal videotaping system for the court's own
records.
I have personally had 44 requests to allow cameras in oral
arguments in which I have been a panel member, of which nearly
80 percent have been granted. In other words, I have personally
participated in 35 appellate oral arguments which were
videotaped or televised live, which experience is the basis of
my testimony today.
These requests range from high-profile, attention-grabbers
to the comparatively banal. Among the more controversial three-
judge cases were Brown v. Woodland School District which
considered whether certain Sacramento area classroom activities
required children to practice witchcraft, in violation of the
First Amendment.
Understandably, cases involving elections and the right to
vote have generated substantial public interest and press
coverage. For example, I sat as a member of a limited en banc
panel of 11 judges in a very high-profile, live video coverage
of a case evaluating whether the California recall election of
Gray Davis, the Governor, should be enjoined as a violation of
the 14th Amendment because of the use of punch card balloting
machines.
Of course, not every request to bring media into our
courtrooms has been allowed. Panels, perhaps motivated by
concern for the parties, have occasionally shunned cameras. For
example, in Compassion in Dying v. Washington, the court
grappled with whether a State statute criminalizing the
promotion of suicide violated the 14th Amendment.
Some judges will vote to deny video access unless assured
that the media will broadcast the tape on a gavel-to-gavel
basis. Indeed, just last weekend C-SPAN aired the entire oral
argument in Planned Parenthood v. Gonzales, a partial birth
abortion case that was argued several weeks before.
Finally, Mr. Chairman, I appear before you today both in my
individual capacity supportive of cameras in appellate
courtrooms and on behalf of the Judicial Conference of the
United States, which opposes cameras in trial courtrooms. Trial
courts and appellate courts differ in important respects,
primarily with respect to the presence of victims, witnesses,
juries and, of course, the parties themselves.
For this reason, I have serious concerns regarding the
placement of cameras in trial courts, and suggest that
questions about cameras in trial courts be directed to my
district court colleague from Pennsylvania, Judge Jan DuBois.
I thank you again, Mr. Chairman. I will be happy to take
any questions that you or the Committee members may have with
respect to the use of cameras in the circuit appellate setting.
Thank you.
[The prepared statement of Judge O'Scannlain appears as a
submission for the record.]
Chairman Specter. Thank you very much, Judge O'Scannlain.
Our next witness is United States District Judge Jan DuBois
from the Eastern District of Pennsylvania. He has served there
since 1988 and prior to that time had a very extensive trial
practice in Philadelphia with the law firm of White and
Williams. He had clerked for Circuit Judge Harry Kalodner.
He received his bachelor's degree from the University of
Pennsylvania in 1952 and his law degree from Yale in 1957, and
in the interest of full disclosure has been a friend of mine
for 50 years. I was at Penn with him. I did not make Sphinx,
but Buddy DuBois did. He had a distinguished record at the Yale
Law School and has been really an outstanding Federal judge.
He has handled major cases involving the prison system and
has no peer when it comes to hours in the courtroom, frequently
running up the GSA bills on Saturday afternoon for air
conditioning in the summer and heating in the winter. He is
well worth it and beyond.
Welcome, Judge DuBois. The last time you were here was for
your confirmation hearing and we have some tougher questions
for you today. Please proceed.
STATEMENT OF JAN E. DUBOIS, JUDGE, U.S. DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA, PHILADELPHIA, PENNSYLVANIA
Judge DuBois. Mr. Chairman, members of the Committee, my
name is Jan DuBois. I am presently a judge on the United States
District Court for the Eastern District of Pennsylvania. I have
served on the district court for 17 years. I am appearing
before you today in my personal capacity. I appreciate the
invitation to testify and hope my testimony will be useful to
you.
As you requested, my statement will cover the pilot program
providing for electronic media coverage of civil proceedings in
selected Federal trial and appellate courts--two courts of
appeals, the Second Circuit and the Ninth Circuit, and six
district courts, including my district.
The pilot program authorized coverage only of civil
proceedings. Guidelines were adopted by the Judicial
Conference, and I have appended a copy to my written testimony.
The guidelines set forth the procedures to be followed for
using cameras in the courtroom. Significantly, they also
prohibited photographing of jurors and they provided that the
presiding judge had discretion to refuse, terminate or limit
coverage.
To give you some idea of the scope of the program, from
July 1, 1991, through June 30, 1993, there were 257
applications for media coverage in all of the pilot courts. Of
these, about 72 percent of the applications were approved. Of
this total, 257 cases in which applications were made, about 30
percent were submitted in the Eastern District of Pennsylvania.
The Eastern District of Pennsylvania conducted a study at
the completion of the pilot program on December 31, 1994. More
cases had been the subject of applications and the percentages
remained about the same. Significantly, the breakdown of the
cases in which applications were filed in the Eastern District
disclosed that about 49 percent of them involved civil rights.
Next, in terms of percentage of requests were tort cases--21
percent.
The Federal Judicial Center evaluated the program and I
have a copy of their report. It is entitled ``Electronic Media
Coverage of Federal Civil Proceedings'' in this program. It was
published in 1994 and I understand it is on the Federal
Judicial Center website. That report included ratings of
effects of cameras in the courtroom by district judges who
participated in the program and I have appended a copy of that
part of the report to my written testimony.
The ratings by the judges who participated in the program
were both favorable and unfavorable. For me, the most
disturbing ratings were these: 64 percent of the participating
judges reported that, at least to some extent, cameras made
witnesses more nervous. Forty-six percent of the judges
believed that, at least to some extent, cameras made witnesses
less willing to come to court. Forty-one percent of the
participating judges found that, at least to some extent,
cameras distracted witnesses, and 56 percent of the
participating judges found that, at least to some extent,
cameras violated witnesses' privacy.
In my experience, I had, I believe, a total of four
applications for cameras in the courtroom. I granted three,
denied one. Strangely, the media--I think it was Court TV--
covered what I considered to be the least dramatic case, a
product liability case, and rejected cameras in the prison
class action, to which the Chairman referred.
In deciding whether to allow cameras, I conducted a
conference. The most commonly advanced objections offered by
the attorneys were the adverse effect on the parties and the
adverse effect on witnesses. In some cases, plaintiffs were
concerned about disclosing matters of an extremely private
nature, and Senator Sessions has already mentioned that. And in
at least one case, a defense attorney said the threat of a
televised trial would cause the defendant to consider
settlement, regardless of the merits of the case. As far as the
adverse effect on witnesses, counsel were concerned that
cameras would make them less willing to appear. And, in
general, the attorneys' objections tracked the comments of the
judges who participated in the program.
I will say this about cameras in the courtroom: My personal
view is that the disadvantages far outweigh the advantages. I
say that mindful of the fact that our courtrooms have to be
open, and indeed I think they are open. My concern about
cameras in the courtroom stems from the fact that I think the
cameras do more than just report proceedings. They affect the
substance of the proceedings, and I say that based on my
experience as a trial judge and my experience for 30 years as a
trial attorney.
I think that the impact, or the potential impact, of
cameras on jurors, on witnesses and on parties augurs for not
allowing cameras in the district courts. The paramount
responsibility of a district judge is to uphold the
Constitution, which guarantees citizens the right to a fair and
impartial trial. In my opinion, cameras in the district courts
could seriously jeopardize that right because of their impact
on parties, witnesses and jurors.
[The prepared statement of Judge DuBois appears as a
submission for the record.]
Chairman Specter. Thank you very much, Judge DuBois.
Judge O'Scannlain, you testified that you have been a party
to 35 appellate proceedings and you have come to the conclusion
that you think it is desirable to have cameras in the
courtroom, correct?
Judge O'Scannlain. At the circuit court of appeals level,
yes. I think our experience now over 13 years--and it has
continued since 1991 and is still on--has indicated that it
seems to work well and the vast majority of us feel that it is
perfectly acceptable.
Chairman Specter. Any material impact on the lawyers who
are presenting the cases or on the judges who are presiding in
terms of responses for grand-standing--
Judge O'Scannlain. Well, you always wonder here and there--
Chairman Specter. Let me finish the question, Judge.
Judge O'Scannlain. I am sorry, excuse me, I am sorry.
Chairman Specter. Let me finish the question--or in any way
altering their regular conduct?
Judge O'Scannlain. Well, you always wonder here and there
of perhaps some aberrational moments, but by and large I have
never been offended by anything that the lawyers or my
colleagues have said in a televised oral argument in my court.
Chairman Specter. You maintained your same judicial
demeanor, notwithstanding the presence of the cameras? That is
a leading question.
Judge O'Scannlain. Well, we certainly try to, and hopefully
we do.
Chairman Specter. Judge DuBois, how many cases were
televised in your courtroom?
Judge DuBois. In my courtroom, only one. I approved three
applications. Only one case, a product liability case which did
not involve personal injuries--it involved the recall of a line
of bottled water--
Chairman Specter. What was the impact of cameras in the
courtroom, if any, on you?
Judge DuBois. The answer to that question is none on me,
and in that case, because of the rather bland nature of the
case, the impact was positive. There was no negative impact at
all. The parties did not object, the witnesses did not object.
Cameras did not focus on the jurors, but I asked the jurors
after they were empaneled whether they had any objection to
having television cameras there and they replied no.
I should add--
Chairman Specter. So why, with your sole experience with
cameras in your courtroom being positive, do you come to a
different conclusion as a generalization?
Judge DuBois. First of all, that case was a case that was
tried on the first day of the program, July 1, 1991. As my
experience with the program and with attorneys who objected to
cameras in the courtroom expanded, I concluded that there was
an effect on some witnesses, on some jurors and on some
parties.
Chairman Specter. But as a result of having cameras in the
courtroom?
Judge DuBois. Well, I think the effect of having cameras in
the courtroom is a telling effect. Let me give you an example.
The Federal Judicial Center reported that a large percentage of
the judges concluded that there was an impact on witnesses,
that witnesses became more nervous. Jurors are told to watch
the way a witness responds to a question. If a witness is
nervous because of cameras in the courtroom, a juror might very
well misinterpret that to mean the witness is nervous because
the witness is not telling the truth. That is a dynamic that I
never want to see happen in a courtroom in which I am
presiding.
Chairman Specter. It didn't happen in the case that you
presided over where the cameras were present?
Judge DuBois. It was a rather bland case involving the
recall of bottled water.
Chairman Specter. Well, how about cameras for bland cases?
Judge DuBois. I don't think the media would go for that,
Senator.
Chairman Specter. Well, give them the choice. Don't bar
them if it is something they might choose to do.
Judge DuBois. Senator, may I say this? And I am mindful the
lights are going on and I am mindful of your experience in the
Supreme Court in the Navy Yard argument, and I was afraid that
today would be pay-back time for me and that I would be cutoff
in mid-word.
Chairman Specter. Time is not up. Give us a chance. Chief
Justice Rehnquist, as you know, was looking for an occasion to
cutoff a lawyer in the middle of the word ``if.''
Judge DuBois. Well, I thought you might try to do that to
me today. Thank you for not doing that, sir.
I am concerned that any compromise of an individual's right
to a fair trial, any intrusion on that right is not warranted
because I think we have open courtrooms now and the question is
do we need courtrooms to be more open. And I think if you can
answer that question by saying there would be no trampling of
individual rights in trials, that is fine. But I don't think we
can say that based on the information that is presently
available and I wouldn't want to sacrifice the right to a fair
trial in both civil and criminal cases to make courtrooms more
open. And in saying that, I want to add that I certainly favor
open courtrooms, but believe our courtrooms are open now.
Chairman Specter. Well, my time expired in the middle of
your answer, so I am going to yield to Senator Sessions.
Senator Sessions. Take more time, Mr. Chairman, if you need
it.
Chairman Specter. No. I am going to stick to the time and
maintain our Committee record on that, but I will comment that
we are all devoted to a fair trial and we are not going to do
anything that would impede on that. And I think the legislation
which Senator Grassley testified about leaves it open to
eliminate the cameras where the judge feels there would be an
impingement or where participants and parties to the trial
object.
Senator Sessions.
Senator Sessions. Thank you.
Judge DuBois, the American ideal of justice is to create a
climate for the very fairest outcome in every case that comes
in a court of law in this country. Wouldn't you agree with
that?
Judge DuBois. I certainly would.
Senator Sessions. We even give you two judges a lifetime
appointment. We can't even cut your pay because we want an
independent judge to preside over the trial who will take steps
to make sure that trial is conducted in a way that guarantees
that extraneous emotional forces don't come together in a way
that might adversely impact a fair decisionmaking process.
Wouldn't you agree with that?
Judge DuBois. I would, sir.
Senator Sessions. And in your opinion, based on your years
on the bench, you have concluded that cameras in the courtroom
could be an adverse factor in guaranteeing as fair an outcome
as we can possibly achieve?
Judge DuBois. That is correct, sir.
Senator Sessions. Looking at the polling data that they did
in New York to review their television coverage, it says they
polled--and I think it is pretty startling, really. Forty-three
percent of citizens would be less willing to serve on a jury if
there were cameras and 54 percent would be less willing to
testify as a witness to a crime if cameras were present. I
think that is even more troubling.
A New York survey of voters conducted by Bill Bowers of
Northwestern University found that 4 out of 10 potential
victims would be less willing to testify in a criminal case if
cameras were present. The Federal Judicial Conference study
found that 64 percent of participating judges in the pilot
program reported at least to some extent, as you noted, cameras
make witnesses more nervous.
Do you agree? Are those polling data numbers consistent
with your experience as a judge and your own observations?
Judge DuBois. I agree with the conclusions. My experience
isn't broad enough to reflect specific percentages, but I
believe every one of the factors that you mentioned from the
New York study and the Judicial Center study are factors that
weigh against a fair trail and should not be compromised to
make our courtrooms more open.
Senator Sessions. Well, we just have to be careful. Trials
are critically important crucibles to ascertain truth. They are
not for entertainment; they are there to help decide correctly
complex, often emotional disputes between defendants and
victims and prosecutors, and between civil litigants and that
sort of thing.
Let me ask Judge O'Scannlain, now, if you do coverage of
the appellate courts, does the coverage cover the whole hearing
and then when it is put on the six o'clock news, do they just
excerpt some small part of it, and does that give you a concern
that perhaps an incorrect perception might be conveyed to the
public?
Judge O'Scannlain. Senator, there have been a variety of
experiences. Some of the cases in which I participated were
video only, with no audio, and snippets from that were used in
the public broadcasting special program about the Ninth
Circuit.
In other situations, as I indicated, some of my colleagues
will vote not to grant permission unless there is a commitment
by C-SPAN or whatever the particular media entity is that they
would run it on a gavel-to-gavel basis. So it would be the full
20 minutes and a 10-minute argument, or the full 40, that kind
of thing. That is why I thought it was quite telling and quite
impressive that--
Senator Sessions. Let me just suggest that a local TV
station that might have an interest in it would not be
obligated to show the whole argument at six o'clock. They could
simply show one snippet from it, is that correct?
Judge O'Scannlain. Yes, that is true, and that specifically
happened in a case which was argued in San Francisco having to
do with a cross on public property. There was a lot of local
interest in it, and as a matter of fact the local Bay area
television stations did indeed show it on a snippet basis.
Senator Sessions. Mr. Chairman, my time is up.
Chairman Specter. Thank you very much, Senator Sessions,
and thank you very much, Judge O'Scannlain and Judge DuBois.
There are many, many more questions we could ask. We have your
written statements. We have a very long third panel, so we are
going to thank you and we may be following up with some
additional questions for the record.
Judge O'Scannlain. It would be our pleasure. Thank you very
much, Mr. Chairman.
Judge DuBois. Thank you, Mr. Chairman.
Chairman Specter. We will now call panel three--Ms. Barbara
Bergman, Mr. Peter Irons, Mr. Seth Berlin, Mr. Brian Lamb, Mr.
Henry Schleiff and Ms. Barbara Cochran.
Our first witness on this panel is Ms. Barbara Bergman, who
is testifying in her capacity as President of the National
Association of Criminal Defense Lawyers. She has been a
professor of law at the University of New Mexico School of Law.
She worked as a staff attorney for the public defender here in
Washington, was associate counsel for President Carter. She has
a bachelor's degree from Bradley and a law degree from
Stanford.
Thank you for joining us, Ms. Bergman, and the floor is
yours for 5 minutes.
STATEMENT OF BARBARA E. BERGMAN, PRESIDENT, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, WASHINGTON, D.C.
Ms. Bergman. Mr. Chairman and distinguished members of the
Committee, as President of the 13,000-member National
Association of Criminal Defense Lawyers, NACDL, I am honored to
be here today to share the association's views regarding the
important issue of cameras in Federal courtrooms.
While current rules do not permit cameras in Federal
district courts, NACDL's members have experience with televised
proceedings in their State courts. And in discussing this issue
recently with our board of directors, it was apparent that
there is no consensus within the defense community regarding
the overall desirability of cameras in courtrooms in criminal
cases. The position of our association reflects that diversity
of experience and opinion.
The Supreme Court has held that there is no constitutional
right of access for cameras in the courtroom. As a result, in
criminal cases the purported value of televised court
proceedings must be weighed against the accused's
constitutional rights to due process and a fair trial.
The NACDL believes that S. 829 does not strike the right
balance. We would like to see the bill amended so as to
authorize cameras in district court criminal proceedings and
interlocutory appeals only with the express consent of the
parties. In all other criminal matters coming before the United
States courts of appeals and the Supreme Court, NACDL favors
access for cameras, and there are many arguments on both sides.
To the extent that cameras in the courtroom promote greater
public understanding of the judicial process and the
constitutional protections that apply to that process, we
generally support their expanded use. Not unrelated is the
notion that televised trials may encourage greater preparation
and a higher standard of professionalism.
But in the alternative, the arguments against cameras,
there are many that concern us a great deal. First is pressure
on jurors. The decision to televise a trial signals to the jury
that their verdict is likely to be scrutinized by the viewing
public, and defendants are less likely to receive a fair trial
when jurors feel the need to reconcile their verdict with
strong public sentiments in favor of a particular result.
As a member of Terry Nichols's defense team in the State
capital prosecution arising from the Oklahoma City bombing, we
were extremely concerned about the possibility of strong
community pressures being brought to bear on Oklahoma jurors if
the court permitted cameras in the courtroom. We objected to
the presence of such cameras under Oklahoma's rule permitting
the defendant to object to cameras and ultimately they were
excluded.
While it is impossible to measure the precise impact
cameras may have had on that trial, the fact that some of the
jurors have refused to speak to the media and others did so
over a year after the verdict reinforced my belief that
excluding cameras reduced at least some of the community
pressure on the jury in the small community of McAlester,
Oklahoma. Finally, past television coverage may make it more
difficult to select an impartial jury in case there is ever a
retrial.
We also share the concern about pressure on witnesses, that
it will discourage witnesses from testifying, that it may
affect the ability of them to testify in a way that doesn't
distort what they have to say. The concern we have is that it
will affect the jury's evaluation of their credibility.
We also have concern about pressure on the defendant from
cameras that can affect the accused's demeanor and willingness
to testify. And more fundamentally, the prospect of extended
media coverage may discourage the accused from exercising their
right to trial in the first place, and it is of particular
concern in cases involving humiliating accusations or corporate
defendants unwilling to expose themselves to negative
publicity.
It is also of particular concern in capital cases where
evidence of childhood sexual and physical abuse is frequently
offered in mitigation. The prospect that such evidence may be
broadcast across the country may cause a defendant to hide such
information even though it could save his life. Finally, even
when the accused is acquitted, the stain on their reputation is
not easily erased and camera coverage may exacerbate this
unwarranted punishment.
Given these concerns, the sponsors of S. 829 have wisely
avoided a rule authorizing unrestricted camera access. But
rather than placing the ultimate decision in the hands of the
presiding judge, we think the consent of the parties--the
accused acting with the advice of counsel and the government--
should be required before cameras are permitted to televise
criminal trials or interlocutory appeals.
The positive or negative effects of cameras depend on the
facts and circumstances of each case. The parties who are
familiar with the witnesses who will testify, the evidence that
will be offered and other facts that might indicate the
potential for prejudice are in the best position to determine
the appropriateness of cameras. Moreover, permitting the
parties to withhold their consent avoids the time-consuming
distraction of litigation regarding the judge's decision to
permit or forbid that coverage.
While we support efforts to ensure more sunshine on our
democratic institutions, that goal should not be allowed to
eclipse the fundamental purpose of a criminal trial, which is
not education or entertainment, but justice.
[The prepared statement of Ms. Bergman appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Bergman.
Our next witness is Professor Peter Irons, Professor
Emeritus of Political Science and Director of the Earl Warren
Bill of Rights Project at the University of California in San
Diego. Professor Irons has authored six books on the Supreme
Court and served two terms on the national board of the ACLU.
He has an undergraduate degree from Antioch, a Ph.D. in
political science from Boston University, and a law degree from
Harvard.
Thank you very much for coming in today, Professor Irons,
and the floor is yours.
STATEMENT OF PETER IRONS, PROFESSOR OF POLITICAL SCIENCE,
EMERITUS, UNIVERSITY OF CALIFORNIA AT SAN DIEGO, SAN DIEGO,
CALIFORNIA
Mr. Irons. Senator Specter and Senator Sessions, I am very
glad to be here this morning. I am going to limit my comments--
and my statement is part of the record--if I might.
Chairman Specter. Your full statement will be made a part
of the record, as are all of the statements.
Mr. Irons. I would like to limit my comments to television
coverage of the Supreme Court, and I base that on my experience
with providing to the public access to the audio arguments, the
audiotape arguments before the Supreme Court. Let me just give
a little history behind that.
Back in 1955, Chief Justice Earl Warren initiated the
audiotaping of Supreme Court oral arguments. I think he did so
because he recognized in the past term the historic importance
of arguments in Brown v. Board of Education, both the first and
the second cases. He felt that keeping those arguments on tape
and making them accessible to the public would serve not only
an historic, but a civic benefit particularly for students.
Now, until 1986 there was no restriction on access to those
tapes. But in 1986 when Fred Graham of CBS News obtained a copy
of the Pentagon Papers oral argument and played excerpts of it
on television and radio, Chief Justice Burger imposed
restrictions on access to those tapes, limiting it to what were
termed private research and teaching.
I decided in 1991, having heard some of these tapes when I
was in law school, that it would be a good educational project
to make them available to the public, particularly for use in
schools. So I obtained copies of 23 historical oral arguments,
including Roe v. Wade; Miranda v. Arizona; the Watergate tapes
case, United States v. Nixon; and the Pentagon Papers case.
Simply to illustrate, with the Committee's indulgence, I
would like to just push a button right here and for less than a
minute bring you into the Supreme Court chamber for part of the
argument by Thurgood Marshall, then chief counsel for the NAACP
Legal Defense and Education Fund, in the historic case of
Cooper v. Aaron, and I hope this will be audible.
[Audiotape played.]
Mr. Irons. Now, I played that, Mr. Chairman, to--
Chairman Specter. Mr. Irons, I don't think we all heard
that. I will give you a little extra time. Summarize what was
just played on the tape.
Mr. Irons. All right. It was an argument by Thurgood
Marshall about the experiences of the African-American children
in Little Rock when they were being escorted into the schools
through mobs and how--
Chairman Specter. And what case was this in?
Mr. Irons. This was in Cooper v. Aaron, in 1958.
Now, my point here is very simple that these tapes have
been played in thousands and thousands of school rooms, and I
would be glad to enter this into the record, as well, a copy of
a set of those tapes. My own experience and the experience of
hearing from literally hundreds of teachers and students who
have heard these tapes is that they would very much appreciate
the chance not only to hear these arguments, which very few of
them have been able to witness in person, but also to see the
arguments in the Supreme Court. There is nothing, I think, more
educational than that opportunity, making it available to the
public, and particularly to students, to do that.
This past Monday, I was talking to a class in judicial
process at Missouri State University in Springfield and I asked
the class--and they had heard excerpts of these tapes, about 50
students, and I said how many of you would really appreciate
the opportunity to be able to witness these arguments in person
on video to see the lawyers argue the cases and the judges ask
questions. And there was a unanimous show of hands in support
of that project.
So I think, in conclusion, Mr. Chairman, Senator Leahy and
Senators Sessions, that there would be a great public benefit.
I also have available a statement that I received yesterday by
e-mail from Chief Judge Mary Schroeder, of the Ninth Circuit,
on which Judge O'Scannlain sits, I think backing up his
testimony, but also saying that ``In my opinion, the Supreme
Court and the public would benefit from at least experimenting
with televised oral arguments in cases that, like the
California case, are of intense public interest and presented
by counsel of the highest ability.''
I would like to submit that statement as well.
Chairman Specter. It will be made part of the record.
[The prepared statement of Mr. Irons appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Irons.
We now turn to Mr. Seth Berlin, a partner in the law firm
of Levine Sullivan Koch and Schulz. He has handled a variety of
First Amendment, defamation, privacy and reporter's privilege
cases. He has been nominated to the governing Committee of the
American Bar Association's Forum on Communications Law. He has
a magna cum laude degree from Brown University and is a cum
laude graduate of the Harvard Law School.
The floor is yours, Mr. Berlin.
STATEMENT OF SETH D. BERLIN, LEVINE SULLIVAN KOCH AND SCHULZ,
LLP, WASHINGTON, D.C.
Mr. Berlin. Thank you, Mr. Chairman and members of the
Committee. I really appreciate the opportunity to testify
today.
At a fundamental level, ours is a Government in which the
people are sovereign and therefore possess the right to observe
our Government in operation. As the Supreme Court has
explained, and as Senator Grassley alluded to in his testimony
this morning, people in an open society do not demand
infallibility from their institutions, but it is difficult for
them to accept what they are prohibited from observing. Simply
put, our democracy works better when people understand how
their Government institutions operate, and our Government
institutions work better when their operations are understood
and scrutinized by the people.
We have a constitutionally required right of access to
court proceedings and it cannot be seriously disputed that
camera coverage will materially further most people's exercise
of that right. The simple truth, as the Florida Supreme Court
put it in authorizing cameras into that State's courts back in
1979, is that newsworthy trials are newsworthy trials and they
will be extensively covered by the media both within and
without the courtroom, whether cameras are permitted or not.
It makes a lot more sense to provide the public with a
picture of the actual in-court proceedings rather than having
the public getting its information about trials solely from
second-hand summaries, or worse, potentially prejudicial and
inflammatory characterizations by interested third parties.
Next, I would like to point out that there is generally no
constitutional bar to camera coverage. Following the Supreme
Court's decision in Chandler v. Florida, courts confronting
this issue routinely have concluded that television coverage
does not interfere with the due process rights of a criminal
defendant or of other parties or participants in a court
proceeding.
I would also like to talk about the benefit of at least
affording judges discretion in this area. A number of courts
that otherwise would have found camera coverage warranted have
felt constrained by either Federal Rule of Criminal Procedure
53 or by the Judicial Conference guidelines that prohibit
camera coverage in trial courts.
For example, in General Westmoreland's landmark libel trial
against CBS, the parties consented to CNN's televising the
proceedings. Then-trial Judge Leval also made extensive
findings that favored camera coverage. He nonetheless denied
CNN's petition based on his conclusion that the rules of the
Judicial Conference and of his own court left him no choice--a
determination that was then upheld by the Second Circuit.
Earlier this fall, a Federal district court in Pennsylvania
reached a similar conclusion, relying on the Judicial
Conference guidelines. The court denied a request by Court TV
to televise the trial over the Dover, Pennsylvania School Board
policy of suggesting the study of intelligent design along with
the study of evolution, despite the profound national interest
on the subject, the consent of all of the parties and the fact
that the trial involved none of the usual potential objections
that people raise in authorizing camera coverage.
Legislation granting judges at least discretion to
authorize camera coverage in appropriate circumstances may well
have yielded a different result in these important matters and
many other important controversies of the future.
Finally, I want to talk briefly about the experience of
those courts that have authorized camera coverage. Both the
Federal Judicial Center study of a Federal court pilot program
and similar studies of experimental programs in a large number
of States have confirmed that camera coverage does not
interfere with the fair and orderly administration of justice.
Moreover, the Federal courts are increasingly using cameras
for many purposes other than broadcasting court proceedings to
the public. Judge O'Scannlain talked about the Ninth Circuit's
internal videotaping system. The trial court in the Moussaoui
prosecution authorized an audio-visual feed to a nearby
overflow courtroom, and in response to the change of venue in
the Oklahoma City bombing trial, Congress authorized closed-
circuit televising of trials to crime victims where the trial
is moved more than 350 miles and out of State.
Last, there is the overwhelmingly positive record of camera
coverage in the State courts. All 50 States allow at least some
camera coverage of judicial proceedings. The best evidence that
these rules work is that States have continued to operate under
them, in many cases for decades. California continued its
practice of televising State court proceedings even after the
O.J. Simpson trial left some to question that policy. And just
last week, the Florida Supreme Court unanimously rejected
efforts to limit its rules allowing camera coverage of court
proceedings throughout that State's court system.
To sum up, permitting Federal court proceedings to be
televised will dramatically enhance the public's exercise of
its right of access to judicial proceedings. Congressional
action will open the door's of the Nation's Federal court
system to millions of Americans who are otherwise unable as a
practical matter to view these proceedings.
[The prepared statement of Mr. Berlin appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Berlin.
Our next witness is the distinguished Chief Executive
Officer of C-SPAN, and has been since C-SPAN was founded in
1979. He has had a regular on-air presence with his
``Booknotes'' up until last year and continues to have an on-
air presence, as I can personally testify to, having been
interviewed by Mr. Lamb as recently as August of this year.
Prior to being a co-founder of C-SPAN, he worked as a
freelance reporter for UPI radio, a Senate press secretary and
a White House telecommunications policy staffer. In 1974, Mr.
Lamb began publishing a bi-weekly newsletter called ``The Media
Report'' and was Washington bureau chief for Cablevision
magazine. A graduate of Purdue University, he majored in
speech, where he received his bachelor's degree.
Just a little anticipatory on the testimony, C-SPAN covers
Senate hearings with regularity and I, for one, hear an
enormous amount of comment about it. People talk about C-SPAN
with attentiveness only parallel to professional sports as to
what this individual has observed.
The next few minutes are yours, Mr. Lamb.
Senator Leahy. Mr. Chairman, before he starts, I know how
much people watch this and actually watch Mr. Lamb because I
was walking through an airport once and somebody came up and
said, Mr. Lamb, how long have you been wearing glasses? I said,
no, no, he is a lot younger and he doesn't have to wear
glasses.
STATEMENT OF BRIAN P. LAMB, CHAIRMAN AND CHIEF EXECUTIVE
OFFICER, C-SPAN NETWORKS, WASHINGTON, D.C.
Mr. Lamb. Senator Leahy, they do the same thing to me often
in airports--Senator Leahy, can I have your autograph? And, you
know, I have to disappoint them and tell them I am not you. I
have gotten that, by the way, on Senator McCain and Senator
Glenn, and I can go down the list of the number of people that
I am thought to be.
I was in a classroom a couple of weeks ago, some 16-year-
old juniors, talking about C-SPAN and what we do in government
and civics. One of the students put her hand up and asked me--
and I don't remember why because it is an odd question--she
said where do they put the jury in the Supreme Court room? And
it struck me, as Professor Irons was talking about the
educational value of all of this being one of the more
important reasons why we are even doing this.
We have a commitment to make here this morning, and we have
done it before, and that is basically if the Supreme Court will
ever allow its oral arguments on television, we will carry all
of them from start to finish. We will find a place to put them
all.
Judge O'Scannlain was talking about members of the Ninth
Circuit often want gavel to gavel. I personally am not in favor
of enforcing gavel to gavel. I think the news media plays an
enormously important role in interpreting, and I often find it
fascinating because you can't really find out what the Supreme
Court members think about television. They don't meet the
public very often. As the Chief Justice says, they have an open
mind and you never can really find out if they have ever voted
on it or not.
But I often thought it was odd because they will allow a
member of the print press to come in and sit in the press area,
or a television reporter to sit in the press area, walk
outside, stand in front of a camera and interpret everything
that went on in the courtroom. But giving us a chance to see
how it really happens seems to be something that they can't
agree to.
We are interested in finding a place to carry every
argument; there are only 80. If you look at the statistics
about the Supreme Court, there are only 50 seats in the Court--
there are 300 altogether, but only 50 where just an ordinary
citizen who comes to this town who wants to watch an entire
oral argument can sit and watch. So you have to get in line and
you have to take your chances.
There are 12 seats set aside for people to sit for 3
minutes, and that hardly does much for you other than being
able to see what the Court looks like. The rest of the seats
are determined by either who is before the Court in an oral
argument or where the Justices want to fill those seats with
people that they know.
So this is just like it was with the Senate in 1986 and the
House in 1979--an extension of the gallery, an opportunity to
see something that is usually an hour in length. And that
particular event isn't going to determine how they vote. They
go behind closed doors for that, and that is fine with us.
I would be glad to answer any questions, and you have our
commitment that we will carry all of these oral arguments if we
are allowed to.
[The prepared statement of Mr. Lamb appears as a submission
for the record.]
Chairman Specter. Well, thank you very much, Mr. Lamb. We
will have some questions for you in a few minutes after we hear
from Mr. Schleiff and Ms. Cochran.
Mr. Henry Schleiff is Chairman and CEO of Court TV
Networks. Before taking on that position, he was active in a
number of key posts in the television industry, including
Executive Vice President for Studios USA, executive producer at
Viacom, Senior Vice President for Viacom, and had been Senior
Vice President for HBO.
He began his career as a law clerk to Federal Judge Gurfein
of the Southern District of New York. He has a bachelor's
degree cum laude from Penn and a doctorate in law from the
University of Pennsylvania Law School, where he was an editor
of the law review.
Thank you for joining us, Mr. Schleiff, and we look forward
to your testimony.
STATEMENT OF HENRY S. SCHLEIFF, CHAIRMAN AND CHIEF EXECUTIVE
OFFICER, COURTROOM TELEVISION NETWORK, LLC, NEW YORK, NEW YORK
Mr. Schleiff. Thank you very much, Chairman Specter,
Ranking Member Leahy and Senator Sessions. On behalf of our
Nation's only television network dedicated to providing a
window on the American system of justice, I am delighted and
honored to testify before your Committee which is considering
legislation that would provide our American citizens, both
litigants and viewers, with the benefits of televising the
proceedings of our Nation's Federal courts.
This Committee, in particular, is well aware of the fact
that our trials and courtroom functions are open to the public,
and therefore to the press. Indeed, our Founding Fathers
themselves well understood the importance and need for this
openness. It is not by accident that they built a system of
justice on really four great pillars--an independent judiciary,
the right to trial by jury, rights of due process for
defendants, and a court system which would be open to the
public where, as Justice Oliver Wendell Holmes well said,
quote, ``Every citizen should be able to satisfy himself with
his own eyes.''
I do believe that all citizens today, not just the print
press or those very few who can fit into a courtroom, should be
able to watch their judicial system in action, and therefore
that the few lingering concerns about electronic coverage or
why it should be denied the equal access accorded print
coverage are increasingly specious in this the 21st century.
Indeed, there can be no reasonable argument with the fact
that advances in technology such as a smaller and unobtrusive
camera merely expand the experience of being in the courtroom
to the greater community, thereby making public trials truly
public, as was intended by the Founders.
Certainly, our system of jurisprudence, and especially our
constitutional history of providing public trials is an
essential element of our democracy, and not only of our
democracy but of freedom. Just as the United States today
represents a beacon of freedom, we should also allow that light
to shine on the example that our own courtrooms provide. Our
system is not perfect, but it is one of which we can and should
be proud, especially in our ongoing efforts to preserve justice
and freedom around the world.
The importance to our own citizens of allowing cameras in
the courtroom is really three-fold. One, it enhances public
scrutiny of the judicial system which helps assure the fairness
of court proceedings--a concern of Senator Sessions and one
which we all share. This, in turn, serves to further promote
public confidence in our third branch of Government. And,
three, it does increase our citizens' knowledge about how this
branch actually functions.
Because television is the principal means through which
most people get their news, it only follows that the same
vehicle be employed as a tool to inform and to educate the
electorate in this way. Justice Louis Brandeis said it far more
succinctly--sunshine is the best disinfectant. We agree, and we
vigorously support the proposed legislation which would open
courtrooms to cameras and indeed let the sunshine in.
Certainly, camera coverage of Government proceedings is
nothing new in the United States. Both Houses of Congress have
already opened their chambers to television cameras. This
legislation would then merely provide the third branch of our
Federal Government to be given the opportunity to take a
similar step.
Of course, in the proposed legislation which Court TV has
long supported, trial judges are also to be given the
discretion in their courtrooms to determine whether to permit a
camera in a particular trial, which is a most important and
practical safeguard.
Today, there is certainly growing consensus in the United
States that having cameras serves the public interest. Some 43
States permit cameras in their trial courts. Since 1991, Court
TV has covered more than 900 U.S. trials and legal proceedings,
providing more than 30,000 hours of courtroom coverage.
Moreover, in our 15 years of such coverage, no judgment has
ever been overturned because a camera was in the courtroom.
On the contrary, a myriad of studies over the past two
decades tracking the impact of cameras has indicated that they
do not disrupt or otherwise interfere with the proceedings. If
anything, cameras can help keep newspaper coverage, or for that
matter sound bites, whether we read them in the papers or hear
them on the local news, in context and thus provide the least
sensational and most unfiltered form of coverage. For this
proposition, I will merely cite Senator Schumer's eloquent
analysis of the Amadou Diallo trial.
Finally, I should note that some justices of the Supreme
Court have over the years claimed that allowing cameras in
their courtroom would cause them to lose some degree of their
personal anonymity or perhaps even lessen the Court's moral
authority. However, I would submit to you that where no
witnesses or other parties are involved, just lawyers arguing
to other lawyers, albeit lawyers dressed in robes, about issues
which may fundamentally affect our daily lives, be it
affirmative action, personal choice or the like, the potential
loss of anonymity would seem to be a fair price to pay.
Chairman Specter. Mr. Schleiff, could you summarize the
balance of your testimony, please?
Mr. Schleiff. Yes. I would say only in conclusion that we
do think that such testimony to be seen at the Supreme Court
level would do nothing but actually further the dignity with
which that Court is properly held. I would say, finally, that
we do think that the American public deserves truly to see the
judicial system in action at all levels and to have Federal
courtrooms open to camera coverage.
[The prepared statement of Mr. Schleiff appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Schleiff.
Our next and final witness on this panel is Ms. Barbara
Cochran, President of the Radio-Television News Directors
Association. She has a very distinguished career in 28 years
significantly in Washington, D.C., Vice President and Bureau
Chief for CBS News, executive producer of NBC's ``Meet the
Press,'' Vice President of News for National Public Radio,
managing editor of the Washington Star. She has a bachelor's
degree from Swarthmore and a master's degree from the Columbia
University Graduate School of Journalism.
Thank you for joining us, Ms. Cochran, and we look forward
to your testimony.
STATEMENT OF BARBARA COCHRAN, PRESIDENT, RADIO-TELEVISION NEWS
DIRECTORS ASSOCIATION, WASHINGTON, D.C.
Ms. Cochran. Thank you very much, Mr. Chairman, Senator
Leahy and Senator Sessions, for inviting me to appear today on
behalf of the Radio-Television News Directors Association and
the 3,000 television and radio journalists who are its members.
RTNDA supports the Sunshine in the Courtroom Act and we
welcome Chairman Specter's legislation to open the Supreme
Court to television coverage. We believe both bills serve the
important public policy goal of instilling trust in the Federal
judiciary by allowing Americans to witness for themselves what
transpires within the court system.
It is simply not right that Americans form their opinions
about how our judicial system functions based on the latest
episode of ``Judge Judy'' or ``CSI.'' Nor does it make sense
that the nominees for the Supreme Court are widely seen in
televised hearings conducted by this Committee, only to
disappear from public view the moment they are sworn in as
justices.
RTNDA's members are the people who have demonstrated that
television and radio coverage works at the State and local
level, and they can make it work on the Federal level. The
interests of our citizens are not fully served in this day and
age by opening Federal courtrooms to a limited number of
observers.
By using today's technology, citizens can see and hear for
themselves what occurs inside the courtroom. Technological
advances have minimized the potential for disruption to
judicial proceedings. Cameras available today are small,
unobtrusive and designed to operate without additional light.
Moreover, the electronic media can be required to pool their
coverage, cutting down on the equipment and personnel in the
courtroom.
The presence of cameras in many State courtrooms is routine
and well-accepted. All 50 States, as we have heard already, now
permit some manner of audio-visual coverage of court
proceedings. RTNDA members have covered hundreds, if not
thousands of State proceedings across the country without
incident and with complete respect for the integrity of the
judicial process. To the best of our knowledge, there has not
been a single case since 1981 where the presence of a courtroom
camera has resulted in a verdict being overturned or where a
camera was found to have any effect whatsoever on the ultimate
result.
State studies show that reporting on court proceedings both
by broadcast and newspaper outlets is more accurate and
comprehensive when cameras are present. Unfortunately, the ban
on cameras in Federal proceedings means the public sees what
takes place on the courthouse steps, not what transpires where
it matters most, inside the courtroom. In fact, because of the
Federal ban, American citizens have been deprived of the
benefits of firsthand coverage of significant issues such as
whether the Government can take possession of a person's
private property and transfer it to developers to encourage
economic development, whether executing juveniles constitutes
cruel and unusual punishment, and whether the term ``under
God'' in the Pledge of Allegiance is unconstitutional.
In contrast, just last month people throughout the world
were able to turn on their television sets to witness the
opening of the trial of Saddam Hussein. Iraqi officials
apparently understood how critically important it is to make
this process public to the widest possible audience.
During the 2000 Presidential election dispute, RTNDA fought
hard for televised coverage of the arguments before the Supreme
Court and we were gratified when Chief Justice Rehnquist made
the historic decision to release audio tapes at the conclusion
of the argument. We were also very pleased to hear our new
Chief Justice express to this Committee his openness to cameras
in the Supreme Court. The release of audio tapes by the Supreme
Court has educated the public and caused no harm. What is
needed now is consistent and complete audio-visual coverage.
Federal courts have not on their own motion taken steps to
permit electronic coverage of their proceedings. Therefore,
RTNDA respectfully submits that the time has come for Congress
to legislate. This proposed legislation has the potential to
illuminate our Federal courtrooms, demystify an often
intimidating legal system and provide an appropriate level of
public scrutiny. It is time to provide unlimited seating to the
workings of justice everywhere in the United States.
Thank you, Mr. Chairman, and I ask that some supplementary
material be submitted along with my written statement.
[The prepared statement of Ms. Cochran appears as a
submission for the record.]
Chairman Specter. Thank you, Ms. Cochran. We will be glad
to have the supplementary material and put it in the record.
We now go to the five-minute rounds for members.
Professor Irons, do you think it is an appropriate matter
for the Congress to act legislatively to open up the Supreme
Court to television coverage?
Mr. Irons. Yes, I do, Senator Specter.
Chairman Specter. Do you have any doubt as to the
constitutionality of such action?
Mr. Irons. No. As you pointed out in your opening
statement, Congress exercises considerable oversight, direction
of the Federal courts, the composition, the procedures, et
cetera. I think this falls within their purview.
But one thing I would like to note, since Ms. Cochran just
mentioned the audiotaping of the Bush v. Gore arguments, is the
response to Chief Justice Rehnquist to that experience. He was
talking with Fred Graham afterwards. They were at a party
together and Fred quoted him as saying Rehnquist said he was
very pleased with the reception that the playing of the Court's
audio tapes had gotten. He said he watched it on television and
he thought it worked well, the way they put up the pictures
that identified the justices and the lawyers who were speaking.
He thought that the coverage communicated to the public what
was happening in an extremely important case and he was
pleased.
So my point is that the next step beyond that--since the
pictures were put up, anonymity, of course, disappears the
minute those pictures are up--would be best served--
Chairman Specter. I am sorry to interrupt, Professor Irons,
but we have a lot of ground to cover.
Mr. Irons. Yes.
Chairman Specter. Let me move to Mr. Lamb. Mr. Lamb, would
C-SPAN be in a position to cover the full televising of the
Supreme Court? Some of the justices have raised objections
about snippets here and there. Would there be anything to lead
C-SPAN to do other than total coverage, just as you do now for
the Senate and the House of Representatives?
Mr. Lamb. No. It would be exactly as we do--like this
hearing today, the whole hearing will be on C-SPAN. It would be
the same thing with every oral argument.
Chairman Specter. What information do you have as to the
ratings for C-SPAN? How many people watch C-SPAN?
Mr. Lamb. We don't take ratings. We do surveys from time to
time to find if there is anybody out there watching. And it is
really interesting because we are the only network like it and
we have no idea on a quarter-hour basis who is watching.
We have been able to identify that out of a country of
almost 300 million now, about 10 percent of the society is
interested on a daily basis in the kinds of things that you are
doing and what we are covering. They come to us all the time to
see if there is something there of interest to them. There are
another 3 in 10 people who are interested when things get a lot
of national attention and they will come to us. Then there are
6 in 10 people that never watch. But it would make sense to you
if you just look at the voting numbers that only about half the
people vote in a Presidential election. So I suspect that most
people that don't vote won't watch what we do.
Chairman Specter. You now have C-SPAN3, where you make
selections as to what is going to be shown, and some very wise
judgments from what I have seen. For example, you covered our
hearing yesterday on Saudi Arabia.
Senator Leahy. A brilliant decision.
Chairman Specter. I have an instinct that C-SPAN3 gets more
viewing than 1, which has the House, and 2, which has the
Senate. Any comment?
Mr. Lamb. I don't know. C-SPAN3 is not in nearly as many
homes as 1 and 2, and it is on the digital tier--technical
language--which means that people have to go after it and have
to find it. But I think as times goes by, as the whole
television world is going to change, people will have the same
access to C-SPAN3 as they do to the other two networks.
Chairman Specter. I have a question for the other panel
members which is a big one based on the testimony of Judge
DuBois, who was concerned about how television would impact at
a trial and the statistics which Senator Sessions cited about
jurors being less willing to serve. I thought Judge DuBois made
a very telling point about witnesses being nervous being
televised, and that might impact on jury evaluation.
So I would like to ask the four of you, because my time is
going to expire in just a few seconds, how you respond to the
concerns which Judge DuBois and Senator Sessions raised as to
the ability to guarantee a fair trial if it is televised. I
will start with you, Ms. Bergman.
Ms. Bergman. Yes, Senator Specter. I think our proposal is
designed to address that, and that is the consent of both
parties, both the defense counsel--and I address only criminal
cases--and the Government would be required before televising
of the trial would be permitted, because those are the people
who know the case the best. They know the witnesses, they know
the evidence, they know the issues that may arise. By giving
those parties the opportunity to give consent or to not give
consent, they are in the best position to guarantee that the
trials are fair, and they can take into account those concerns
about jurors, the concerns about the witnesses, and the
concerns about the impact on the defendant as well.
Chairman Specter. Mr. Berlin.
Mr. Berlin. Thank you, Senator. I think that the experience
of the State courts that have trial coverage with cameras which
is now a very broad experience, in some cases lasting decades,
demonstrates that these concerns are not to be completely
overlooked, but can be easily managed.
The bill that is currently before the Committee which
affords trial judges discretion to handle this has built into
it protections on this issue. In particular, if a judge is
exercising discretion, the judge--and I would submit with no
disrespect to Ms. Bergman that the judge is actually in the
best position to balance all of the interests that are before
them in a court; that sometimes parties have a particular
interest that may or may not be actually consistent with what
is the appropriate to do, and that that overwhelmingly record
really demonstrates that this is possible to do without
interfering with the fair and impartial administration of
justice.
When criminal defendants and other parties have challenged
on appeal the presence of cameras, there is a very strong
record of courts saying that they have not, in the manner that
they have been used, interfered with the operation of the trial
court. And based on that experience, I think those concerns may
be a bit overstated.
Chairman Specter. Mr. Schleiff.
Mr. Schleiff. Yes, I agree. I think the most recent New
York study actually spoke to that very point, and I quote,
``Witness intimidation is neither borne out by the record nor
sufficiently strong to warrant barring cameras from the
courtroom across the board.'' I think it is exactly the judge's
discretion which has to be used and I think which is
appropriately provided for by this legislation.
Chairman Specter. Ms. Cochran.
Ms. Cochran. Yes. I agree that the important thing about
this bill is that it gives the discretion to the judge, who is
in the best position to make the decision about whether cameras
should be admitted or not. I also would refer to the State
experience. Some States have been allowing cameras into trials
for as much as 20 years and there have not been the problems
that are feared.
Chairman Specter. Thank you.
Professor Irons, my time has expired, so I don't have time
to ask you a question now, but I interrupted you. Keep that
thought in mind because I am going to come back to you.
Mr. Irons. OK.
Chairman Specter. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
I just want to make absolutely sure I understand,
Professor, your answer to Senator Specter because he was asking
a question I was concerned about. You see no problem with the
constitutionality?
Mr. Irons. No, I don't, Senator Leahy.
Senator Leahy. I don't either, but I just wanted to get
that on the record.
Ms. Bergman, am I correct that some in the defense bar are
for the idea of the cameras and some are opposed?
Ms. Bergman. There is a diversity of opinion depending upon
what court we are talking about. Generally, for appellate
argument or Supreme Court argument, the defense bar--at least
our board of directors didn't have any major opposition to that
at all. Our concern is with the impact on jurors, witnesses,
defendants at the time of trial.
Senator Leahy. That also requires some sense on the part of
the trial judge not to allow it to turn into a circus. I mean,
a trial judge can easily, for example, protect the identity of
jurors. I mean, you can easily set it up in such a way that
jurors' faces will not be shown, or any reaction of jurors
during a trial. Is that not correct?
Ms. Bergman. Senator Leahy, there are steps that can be
taken to try to provide some safeguards to protect the identity
of jurors, but that does not address the concerns about
witnesses who will refuse to come forward, who will refuse to
testify. It does not address the concern of the impact on
witnesses when they testify and how it may affect their
demeanor in the courtroom and how they present their testimony.
And it doesn't deal with the issues of the very intimate,
private types of information that if people think it is going
to be televised nationally they are not going to want to
testify. Or in some cases you will have situations with a
defendant who will say I don't want that presented because I
don't want that broadcast, and so it is going to have an impact
that cannot be evaluated merely by protecting identities of
jurors.
Senator Leahy. We could discuss it further. Having defended
cases and having prosecuted cases, I still come down on
allowing the public to know.
I might ask Mr. Lamb, as far as keeping down the
intrusiveness, we were halfway through this hearing before I
realized there is a robot camera here in front of me going back
and forth. That is relatively easy to do, is it not, just from
a technical point of view to cut down on the intrusiveness of
cameras, which doesn't go to Ms. Bergman's question, of course,
of having yourself seen when you are testifying? But at least
as far as conducting a trial, you can lower the intrusiveness
of cameras.
Mr. Lamb. I think Henry Schleiff would be better at--he has
done a lot more courtrooms than we have. But when we are
talking about the Supreme Court, they undoubtedly, if they ever
get to television in the Court, would want to operate their own
system just like the Senate and the House do. And you can
basically hide the cameras, make it very easy, and people who
go before the Court won't even know there are cameras in the
room.
Senator Leahy. Justice Scalia recently noted on C-SPAN that
he wasn't concerned about gavel-to-gavel coverage of oral
arguments, but was concerned that cameras take these 15-second
out-takes that can distort rather than inform the public. Isn't
this really a question of whether the press acts in a
responsible way?
I remember during the Michael Jackson trial, every night I
was so glad to see that genocide in Darfur had obviously ended
because the national press didn't bother to cover that anymore.
They had this one molestation case out in California.
Isn't that a question for the media and their own
responsibility?
Mr. Lamb. As I said earlier, the justices have a different
view of the electronic press compared to the writing press. I
just don't understand how you can delineate between the two,
but they do. Justice Scalia has a very unusual view of what
television ought to do. He likes the idea of gavel-to-gavel,
doesn't like the snippets, and even when he goes out to speak,
he will often say if there are television cameras in the room,
I won't speak.
We had a little bit of openness earlier this year for about
three sessions, but it has been a tough go. We have had public
comments about all this and have great disagreement with him. I
just think you can't delineate between the two. The First
Amendment applies to everybody.
Senator Leahy. As Ms. Cochran stated earlier, you get this
great view of justices during our hearings, as we will with the
latest nominee in January, but then the marble walls close in.
Isn't it true, Ms. Cochran, that there are a lot of
examples where coverage has worked very well? For example, I
was one of the ones who urged the Attorney General to make
coverage available for the families in the Oklahoma City trial
because the trial was appropriately moved and a change of
venue. But the families who wanted to watch the trial weren't
able to pick up and go, too.
Wouldn't that be an example of how all sense of justice for
the victims and everybody else was served?
Ms. Cochran. Yes. I mean, the easiest way to provide access
to the widest number of people is through bringing a camera
into court, and that is an excellent example. The families were
able to see what was taking place in the courtroom and it
didn't appear to have any of the intimidating effects.
Our members work with judges all the time on the ground
rules for coverage. They won't show jurors. If there is a
witness whose testimony needs to be taken in privacy, that is
something that the judge can order, and so on. So all of these
things can be worked out. But I think the important thing to
remember is that trials were designed by our Founding Fathers
to be public, and so concerns about embarrassment and that kind
of thing--these trials are public anyway and the presence of a
camera is not going to make a significant difference.
Also, with your indulgence, I would like to address the
snippets issue, if I may.
Senator Leahy. Go ahead.
Ms. Cochran. We prefer to call them sound bites or
excerpts. The proceedings are going to be covered by the press
anyway. Newspaper reporters are going to take selected quotes.
Television reporting is going to use selected quotes. And if
there are cameras present, then the quotes that are used will
be the actual words as they were delivered by the people
delivering them rather than having it be a mediated, second-
hand account of what was said. So it really enhances the
accuracy of the reporting rather than taking away from it.
Senator Leahy. Thank you, Mr. Chairman. I think these are
valuable hearings. I thank the panel.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Sessions.
Senator Sessions. Ms. Bergman, I think you are alone in
this group.
Ms. Bergman. I feel alone, sir.
Senator Sessions. A good defense counsel is used to that
sometimes.
Ms. Bergman. I am.
Senator Sessions. Under the legislation as you read it, the
Grassley bill, do the parties themselves have any ability to
object?
Ms. Bergman. My understanding is that it is a decision that
the judge has the discretion to make, and I would assume the
parties would have an opportunity to be heard on it, but
ultimately would have no right to object to keep the cameras
from actually coming in.
And it raises another concern, Senator, which is that in
that whole process, if the parties have grave concerns about
the impact this is going to have, it is going to require
hearings before the judge to present this evidence, to raise
this issue, to potentially disclose defense theories that
counsel would prefer not to be disclosing at that stage.
It raises the possibility of increased litigation and
taking, quite frankly, time away from the trial lawyers'
preparation and work on the trial rather than focusing on this
peripheral issue. That was a concern we had in the State
capital prosecution of Terry Nichols, and luckily we were able
to have a professor from Kansas who came in to litigate that
issue for us because it ended up being a writ all the way up to
the Oklahoma Supreme Court and it took a lot of time and energy
that could have been better spent in other ways.
Senator Sessions. And if a defendant in a civil or criminal
case, or even a plaintiff is threatened, let's say, that we are
going to call witness such-and-such and that witness is going
to say horrible things about you if you go to trial and you
challenge us and you force us to go to trial, do you think it
is a quantitative difference that that might be videotaped and
then might be on the evening news as compared to maybe being
reported in the newspaper?
Ms. Bergman. Absolutely, I think it makes a tremendous
difference when it is broadcast with a camera in the courtroom.
Putting it on the evening news is qualitatively different in
terms of the nature of the impact of that, and I think it
impacts in several ways. One is the fear that a witness will be
called to say certain things. The other is the aspect of I
don't want to put someone through testifying and being
televised and having to talk about those things.
I have been involved in capital cases where there were
defendants who did not want very painful information presented
by relatives, friends, family members. And it was an extreme
effort to get them to agree to do that, and then if they
thought it was going to be televised nationally, I know it
would have made a tremendous difference.
Senator Sessions. And is it your experience, as it has been
mine as a prosecutor for quite a number of years and a defense
attorney on occasion, that some of the key things you have to
do is just spending time holding the witnesses' hands? They are
just terrified.
Ms. Bergman. Absolutely.
Senator Sessions. And if they are told they are going to be
on television, maybe national television, do you think it adds
to the terror and concern that they face?
Ms. Bergman. It would just magnify it astronomically.
Senator Sessions. You have said that parties have the right
to object. Does that include the prosecutor?
Ms. Bergman. Yes, sir.
Senator Sessions. That is good.
Thank you, Mr. Chairman. I would just say this has been an
excellent panel that has raised some very important issues.
I think there is a remnant, Mr. Lamb, out there that keeps
up with America. I call them a patriotic remnant that know more
what goes on here than we do. We have got this Committee just
down to you and me, Mr. Chairman, and here we are. We are
sitting here, but some people are watching every word of this,
maybe more than the Senate, and they are forming opinions with
less stress and pressure on them than we have and I think it is
healthy. I really do believe that.
But as a person who has tried a lot of cases, I am inclined
to think that the judges may be correct in their overall
perception that justice would not be enhanced in the trial
court, but we will continue to discuss it.
Thank you.
Chairman Specter. Thank you very much, Senator Sessions.
Professor Irons, you were in the midst of commenting
actually beyond the scope of my question, which is why I wanted
to move on before, but let's hear what you have to say.
Mr. Irons. Well, what I was trying to get across, Senator
Specter, was simply that we have, and have had for 50 years now
access to the words that are spoken in the Supreme Court. And
it is a very small, and I think, as pointed out very aptly,
now, because of technology, unobtrusive process to add faces to
those words.
I remember last year when I was attending the Supreme Court
oral arguments in the Pledge of Allegiance case, sitting right
behind Dr. Newdow in the bar section of the Court, I couldn't
imagine a more educational experience than being able,
particularly for students, but for the general public as well,
to see those arguments. They were dramatic on both sides. And I
don't think it would have detracted from the decorum of the
Court or any of its proceedings to be able to witness those
kinds of arguments.
So I think that my own experience in talking with students
at every level, from fourth grade all the way through high
school, playing them excerpts of these arguments, trying to
explain what was going on in the Court, would be enhanced
immeasurably--and I am simply talking now about the appellate
level of argument, but would be enhanced immeasurably by being
able to see those proceedings as well as just listen to them.
Chairman Specter. You testified in your opening statement
that it was Chief Justice Earl Warren who began the practice of
recording the Supreme Court arguments?
Mr. Irons. That is correct.
Chairman Specter. Was there any contemporaneous statement
made or any statement made later by Chief Justice Warren as to
why he did that, what his thinking was?
Mr. Irons. Yes. As a matter of fact, Mr. Chairman, in the
accession file at the National Archives--these arguments have
been moved from the Archives building downtown out to Suitland,
Maryland, but in the accession file--and I am probably the only
person who went through that file after there was an effort by
the Supreme Court to limit my access to the tapes.
A statement by Chief Justice Warren was sent to the
Archives along with the first batch of the tapes saying that he
wanted them open to the public. It wasn't until 1986 that
restrictions were put on access by Chief Justice Burger, and
those restrictions remained in place for 7 years until these
tapes were released and the Court decided, I think, very
wisely, particularly in view of the publicity that their effort
to restrict them had produced, to lift the restrictions again.
So now, as a matter of fact, you can go into the Supreme
Court bookstore just down the block and purchase CD-ROMs called
``The Supreme Court's Greatest Hits,'' which have the arguments
in 62 cases, the full arguments. These, of course, are edited
and narrated for classroom use. It is hard to keep students'
attention during an entire hour of argument.
I think my basic point really is that I can't see any
detriment to the Supreme Court or to the U.S. courts of appeals
in having the pictures added to the words that are already
available to the public.
Chairman Specter. Do you think Chief Justice Warren would
have been wise to have had audio recordings of the Warren
Commission proceedings made available to the public?
Mr. Irons. I think so. As I said, Chief Justice Warren
recognized--and, of course, he came from public office and he
was very used to his words being recorded and reported in the
press and it didn't intimidate him at all. But I think what he
recognized was that having presided over the second round of
arguments in Brown v. Board of Education--and I searched high
and low in the Archives hoping that they would be there
somewhere--but that that is an experience that should be
recorded and preserved for the public.
Chairman Specter. It was difficult to get Chief Justice
Warren to agree to print the transcripts of the Warren
deliberations covering 26 volumes and 17,000 pages. The
staffers had to go to the Congressional members who were used
to printing large volumes of materials in the Congressional
Record which weren't too salient or pithy, and that was done.
Mr. Schleiff, what about ratings for Court TV? Mr. Lamb
doesn't rate C-SPAN. Do you rate Court TV?
Mr. Schleiff. Yes, we do.
Chairman Specter. And how are your ratings?
Mr. Schleiff. They are good these days, sir. But in
fairness, most of our ratings or focus on our ratings come from
the proverbial prime time in the evenings from eight to eleven.
While we do have ratings during the day of our hearings and our
coverage of proceedings, they are important to the overall
brand, if you will, of the network, but it is not where we
derive any principal portion of our revenues or anything else.
But they are indispensably important to what Court TV
obviously, given the name, stands for.
And, yes, it is a core audience that watches it. It is an
audience that is very devoted, actually, to the process.
Chairman Specter. How many hours a day do you televise?
Mr. Schleiff. The entire day, pretty much nine right
through when most of the East Coast courthouses close, until
five o'clock.
Chairman Specter. And how about overnight?
Mr. Schleiff. We will repeat sometimes a portion, depending
upon what the case is, and some of it on the weekends. But
overnight we go into something else which is called our more
entertaining or seriously entertaining mode.
Chairman Specter. Mr. Lamb, you do interview Supreme Court
justices from time to time. What has C-SPAN's experience been
on that?
Mr. Lamb. Well, the most interesting experience was with
Chief Justice Rehnquist, who over a period of about 15 years
let us sit down with him four times. And it was always odd to
me that he would be so open personally and when he would go out
to speak at his circuit or he would give a speech, he would
allow our cameras in; he never refused that. But when it came
to inside that courtroom, he would just shut it down.
Several years ago, we would take our cameras into the press
room and set up and do live programs in there. All of a sudden,
1 day he sent the word down ``no more.'' It is really hard to
know what the thinking is inside that conference room when they
make some of these decisions and they vote on them.
There is really only one justice out of the nine that are
there now that really has not been open, and that is Justice
Souter, to anything. We have done lots of programs with these
justices and kids live coming out of the East Conference Room
in the Supreme Court. We have actually had on the air over
since we have been cataloging this, since 1987, 700 different
events involving Supreme Court justices. So, really, the closer
you get to that courtroom, the more they want to shut it down
and don't want to open it up.
Chairman Specter. So on those events, you have televised
all members of the Court, except for Justice David Souter?
Mr. Lamb. And Justice Scalia has been very uninterested in
television cameras, the two of them. But all the rest of them--
you can go into our files and find tape. We have it in our
archives. I mean, if you want to see what these justices look
like and what they sound like, after we have done all the
hearings that you have been involved in, you can go to our
archives and still find them to this day.
Chairman Specter. Well, you say Justice Scalia has been
uninterested in television?
Mr. Lamb. Yes, he has. He opened three events this year and
that is the first time since he has been on the Court that he
has allowed our cameras in. If he sees a camera in his giving a
speech--and he gives a lot of them--he will just say either
take the camera out or I am not going to speak.
Chairman Specter. Does anybody choose alternative B?
Mr. Lamb. You know, interestingly enough, let me just take
a minute to tell you what happens, and it is a disappointment.
Chairman Specter. You can take your time. My colleagues
have all gone.
Mr. Lamb. The disappointment is this, that the venues where
he speaks, often universities, often connected with law
schools, frankly will cave. They would rather have him there
instead of upholding the principle of openness. One of the best
examples of this was the City Club of Cleveland, which a couple
of years ago gave him the Citadel of the Freedom of Speech
Award. Justice Scalia went to Cleveland to accept the award. We
cover the City Club of Cleveland all the time. We were told we
could not cover this time the Freedom of Speech Award given to
Justice Scalia.
You know, once they have up their mind on the Court, it is
hard to change it and we have not been successful.
Chairman Specter. Well, perhaps he is modulating a bit.
Perhaps he has a little different point of view.
I think that we really need to get a public reaction to
televising the Supreme Court of the United States. My instinct
is the public reaction is going to be very positive. The public
does not know what has happened to Government in the United
States. The Court has taken over and rules with very much an
iron hand, and very much an inexplicable hand.
When we had the hearings for Chief Justice Roberts, it
provided an opportunity to discuss in some detail what the
Court has been doing. And when we analyzed a case called United
States v. Morrison which involved the Supreme Court declaring
part of the Act unconstitutional protecting women against
violence, we were able to publicize that the Court, in a five-
to-four decision, found as it did because they disagreed with
the Congress's, quote, ``method of reasoning,'' close quote.
Up until that decision, Commerce Clause questions had been
decided on whether there was a rational basis for the
Congressional judgment based upon the numerous hearings which
Congress holds. The four-person dissent said that there was a
mountain of evidence, but Chief Justice Rehnquist disagreed
with our method of reasoning, which I found, and said it at the
hearings, highly insulting.
Then they upheld parts of the Americans With Disabilities
Act on access for a paraplegic five to four and denied coverage
of the Americans With Disabilities Act on employment. Justice
Scalia denounced the standard as a flabby test, he called it,
designed to have the Court be the task master of the Congress
to see that we had done our homework. And they made the
decision based upon a test called congruence and
proportionality which was invented in 1997 in a case called
Boerne on the Religious Restoration Act. Judge Alito is going
to be asked, as Chief Justice Roberts was, to comment about
that standard.
But I think Americans would be flabbergasted to hear that
the Court devises some test on proportionality and congruence,
and expects the Congress of the United States to know what the
standards are. And I think it would put some legitimate
pressure on the Court to come down with decisions, if not
understood by C-SPAN's audience, at least understood by the
Judiciary Committee. So we are going to continue to push it and
it is a question of when, in my judgment, not a question of it,
and the sooner the better.
Senator Feingold could not with us today. Without
objection, his statement will be made a part of the record.
We thank you all very much for coming. That concludes our
hearing.
[Whereupon, at 11:44 a.m., the Committee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
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