    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

                     SUNSHINE IN THE COURTROOM ACT OF 2007

    =======================================================================

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 2128

                                   __________

                               SEPTEMBER 27, 2007

                                   __________

                               Serial No. 110-160

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    MAXINE WATERS, California            DANIEL E. LUNGREN, California
    WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
    ROBERT WEXLER, Florida               RIC KELLER, Florida
    LINDA T. SANCHEZ, California         DARRELL ISSA, California
    STEVE COHEN, Tennessee               MIKE PENCE, Indiana
    HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
    BETTY SUTTON, Ohio                   STEVE KING, Iowa
    LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
    BRAD SHERMAN, California             TRENT FRANKS, Arizona
    TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
    ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
    ADAM B. SCHIFF, California
    ARTUR DAVIS, Alabama
    DEBBIE WASSERMAN SCHULTZ, Florida
    KEITH ELLISON, Minnesota

                Perry Apelbaum, Staff Director and Chief Counsel
                     Joseph Gibson, Minority Chief Counsel

                                C O N T E N T S

                                  ----------

                               SEPTEMBER 27, 2007

                                                                       Page

                                    THE BILL

    H.R. 2128, the ``Sunshine in the Courtrom Act of 2007''..........     3

                               OPENING STATEMENTS

    The Honorable William D. Delahunt, a Representative in Congress
      from the State of Massachusetts, and Member, Committee on the
      Judiciary......................................................     1
    The Honorable Lamar Smith, a Representative in Congress from the
      State of Texas, and Ranking Member, Committee on the Judiciary.     8
    The Honorable Steve Chabot, a Representative in Congress from the
      State of Ohio, and Member, Committee on the Judiciary..........     9

                                   WITNESSES

    The Honorable Ted Poe, a Representative in Congress from the
      State of Texas
      Oral Testimony.................................................    11
      Prepared Statement.............................................    13
    The Honorable John R. Tunheim, Judge, U.S. District Court for the
      District of Minnesota, on behalf of the Judicial Conference of
      the United States
      Oral Testimony.................................................    15
      Prepared Statement.............................................    18
    The Honorable Nancy Gertner, Judge, U.S. District Court for the
      District of Massachusetts
      Oral Testimony.................................................    38
      Prepared Statement.............................................    40
    Mr. John C. Richter, U.S. Attorney, Western District of Oklahoma
      Oral Testimony.................................................    44
      Prepared Statement.............................................    46
    Ms. Susan M. Swain, President and Co-Chief Operating Officer, C-
      SPAN
      Oral Testimony.................................................    80
      Prepared Statement.............................................    82
    Ms. Barbara Cochran, President, Radio-Television News Directors
      Association
      Oral Testimony.................................................    95
      Prepared Statement.............................................    96
    Mr. Fred Graham, Senior Editor, Court TV
      Oral Testimony.................................................    99
      Prepared Statement.............................................   100

                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan, and
      Chairman, Committee on the Judiciary...........................   131

                     SUNSHINE IN THE COURTROOM ACT OF 2007

                                  ----------

                          THURSDAY, SEPTEMBER 27, 2007

                      House of Representatives,
                            Committee on the Judiciary,
                                                Washington, DC.

        The Committee met, pursuant to notice, at 1:13 p.m., in
    room 2141, Rayburn House Office Building, the Honorable William
    D. Delahunt (acting Chair) presiding.
        Present: Representatives Delahunt, Sutton, Davis, Smith,
    Coble, Gallegly, Chabot, Keller, Issa, Forbes, King, Franks,
    Gohmert, and Jordan.
        Staff present: Diana Oo, Majority Counsel; Michael Volkov,
    Minority Counsel; and Matt Morgan, Majority Staff Assistant.
        Mr. Delahunt. [Presiding.] The Committee will come to
    order.
        And without objection, the Chair is authorized to declare a
    recess.
        Since 1946, photographing and broadcasting of Federal
    District Court criminal and civil proceedings have been
    prohibited by a directive of the Judicial Conference. Federal
    appellate courts, in contrast, have been authorized by the
    conference to use their discretion in determining whether to
    allow electronic media coverage of appellate arguments.
        Currently, only the 2nd and 9th Circuit Courts of Appeals
    permit cameras in their courtroom. In recent years, however,
    there has been growing public interest in having all Federal
    judicial proceedings televised, which may reflect a greater
    general desire for transparency as well as heightened interest
    in certain well-publicized cases.
        Today's hearing provides an opportunity for us to consider
    H.R. 2128, the ``Sunshine in the Courtroom Act of 2007,'' which
    would allow the presiding Federal District Court or appellate
    court judge to permit electronic media coverage of court
    proceedings.
        I would like to acknowledge my friend, Steve Chabot, for
    his leadership on this issue--and he has joined us on the
    dais--and for closely working with myself and others to get us
    to this point.
        It is my hope that this hearing will shed some sunlight on
    the following issues.
        First, would this measure help promote greater
    understanding of the judicial process by the public by making
    it more transparent? It is vital to our democracy that the
    public understand the critical role that our Federal judicial
    system plays in our system of open Government with respect to
    protecting the rights of all citizens. Greater transparency
    also helps enhance the public's trust and confidence in the
    judicial process. As Judge Louis Brandeis once said, ``Sunshine
    is the best disinfectant.''
        Second, would the measure grant access to Federal judicial
    proceedings in a way that promotes fairness? Many believe that
    the constitutional right to a fair trial requires that all
    court proceedings be open to the public, including the press.
    They cite, for example, the Supreme Court's ruling in Richmond
    Newspapers v. Virginia, which held, ``The right to attend
    criminal trials is implicit in the guarantees of the First
    Amendment.'' Similar statements could be made with respect to
    civil trials.
        Third, would the measure undermine due process and privacy
    rights of participants in Federal judicial proceedings by
    opening them to intrusive electronic media? We should be
    appropriately careful that media coverage of these proceedings
    not impair the fundamental right of a citizen to a fair and
    impartial trial.
        The prospect of public disclosure of all personal
    information may have a material effect on our individual's
    willingness to testify or place an individual at risk of being
    a target for retribution or intimidation. Likewise, the safety
    and security of our judges, law-enforcement officers, and other
    participants in the judicial process should not be jeopardized.
    Accordingly, we should take all proper precautions to ensure
    that the privacy of all participants in the judicial process is
    appropriately protected.
        I look forward to having an informative and illuminating
    discussion on the advantages and disadvantages of electronic
    media coverage of our court proceedings.
        [The bill, H.R. 2128, follows:]

        Mr. Delahunt. I would now recognize the Ranking minority
    Member of the full Committee for his opening statement, Mr.
    Lamar Smith.
        Before I do, and for those of you who are frequently in
    attendance at these hearings, I am not Chairman John Conyers.
        With that, Mr. Smith?
        Mr. Smith. All right. Thank you, Mr. Chairman.
        First of all, it is nice to have my friend from
    Massachusetts serving as Chairman of the hearing today, and I
    ought to point out he is serving as Chairman of a hearing in
    which we have had the largest number of witnesses that we have
    had all year long, I believe. So you all are setting some kind
    of a record here today.
        I also, Mr. Chairman, want to thank all my colleagues on
    this side of the podium for their conscientious attendance
    today, and, Mr. Chairman, we will do our best to restrain
    ourselves from offering any motions that would in any way delay
    the hearing today. But I do appreciate the good attendance on
    this side.
        Mr. Chairman, I appreciate having today's hearing to
    examine the issue that you have mentioned. Legislation to
    authorize television cameras in the Supreme Court, Appellate
    Courts and District Courts do raise many questions. For
    example, does placing cameras in Federal courtrooms trivialize
    and commercialize what is a serious and often personally
    stressful time?
        The Judicial Conference cites the potential harm to the
    judicial system after studying this subject for years in a
    variety of contexts. By and large, they feel cameras in the
    courtroom are incompatible with the administration of justice.
        Some judges are concerned about protecting each citizen's
    right in a fair and impartial legal setting. They do not want
    to sacrifice this duty on the altar of media curiosity. They
    argue that the right to justice in a courtroom, especially at
    trial, distinguishes the use of cameras in a judicial setting
    from their use in legislative, administrative and ceremonial
    proceedings.
        So how could a television camera compromise a fair trial?
    Some lawyers and judges are no less likely to play to the
    cameras than some Members of Congress. Of course, I do not have
    anybody specifically in mind. Others, like witnesses, might be
    intimidated by the camera. Either outcome--grandstanding or
    intimidation--could diminish the ability of a court to seek the
    truth and administer justice.
        There are also significant safety concerns. Judges,
    prosecutors, court reporters, courtroom deputies, jurors,
    witnesses and even law clerks could be identified during
    televised broadcasts. These men and women could easily become
    targets for attempts to influence the outcome of the trial or
    the object of retribution for an unpopular ruling.
        The public has a right to know what is said and what
    happens in courtrooms, and, for more than 200 years, the media
    has provided the public with in-depth coverage of judicial
    events. A zone of privacy should be considered out of respect
    not only for the plaintiffs and defendants, but also for the
    dignity and decorum of the courtroom itself.
        I know the intent of the supporters of this legislation is
    to create greater transparency in the Federal judiciary. Their
    motives are worthy, particularly the motives of my colleague,
    Steve Chabot, on the Committee here and my colleague from
    Texas, Ted Poe. Nevertheless, this legislation, in my judgment,
    does have the potential to weaken our court system by denying
    litigants and the public fair trials and just outcomes.
        Mr. Chairman, I look forward to hearing from all of today's
    witnesses, and I will yield back the balance of my time.
        Mr. Delahunt. I thank the gentleman for yielding.
        And I would call upon my colleague, the primary sponsor of
    this legislation with whom I have worked for several years now,
    the gentleman from Ohio, Mr. Chabot.
        Mr. Chabot. Thank you very much, Mr. Chairman, and I want
    to commend you for the wisdom contained in your opening
    statement. I thought it was well thought out, well reasoned,
    well delivered and agreed with you in toto.
        Mr. Delahunt. I thought it was pretty good myself, Steve.
    [Laughter.]
        Mr. Chabot. And I would like to thank the distinguished
    Chairman and the Ranking Member for agreeing to hold this
    hearing, and this is one of the very few things that I think
    the Ranking Member of this Committee and I just do not see eye
    to eye on, but most things we do. This is just one we differ
    on.
        I would also like to thank Mr. Delahunt, as I said, for his
    support and leadership on this bill. We have worked together on
    this for more years than I would like to admit at this point in
    time, but, eventually, we will get there. Whether it will be
    this Congress or not remains to be seen, but there is no
    question in my mind that ultimately cameras will be permitted
    within the Federal courts all the way up to the U.S. Supreme
    Court, as far as I am concerned, and should be, and I know
    Congressman Poe, former Judge Poe, will be speaking about that
    here shortly.
        During the markup of H.R. 660, the Court Security
    Improvement Act of 2007, concern was expressed about the lack
    of process that this particular bill, the Sunshine in the
    Courtroom Act of 2007, had received during this particular
    Congress. Although this bill has either been introduced or
    offered as an amendment at least since the 105th Congress,
    which is, you know, 10, 11 years ago, I think holding this
    hearing today is important, and I will make my remarks
    relatively brief here.
        As I have said on each of the other occasions, hardworking,
    taxpaying citizens have the right to see their Government at
    work. The bill that we are examining today, H.R. 2128, would
    extend this policy to the Federal courts by giving Federal
    appellate and district court judges the discretion--and let me
    repeat that--the discretion--to allow media coverage of
    courtroom proceedings.
        It does not make the judges do it. It says they have the
    discretion, if they deem it to be appropriate. And some,
    obviously, still oppose that, but I want to emphasize this does
    not force the cameras in the courtroom. The judge has
    discretion over that.
        At the same time, this bill incorporates the necessary
    safeguards to ensure that due process rights are preserved.
    That request by nonparty witnesses to disguise their features
    and voices are granted--I believe that was Mr. Nadler that
    suggested that, and we agreed with him and complied with that--
    and that televising of any juror is prohibited.
        In addition, the discretion provided to Federal judges
    under this amendment expires at the end of 3 years--and I do
    not recall the Member that suggested that. It might have been
    Mr. Coble, but it was somebody that suggested 3 years, so we
    incorporated that as well--allowing us to revisit, to make any
    changes, if necessary.
        So, if any of the horrors that some folks think could occur
    if we put cameras in the Federal courtrooms occur, we can
    always go back and undo the damage that we have done. Now I do
    not think there is going to be a bit of damage, but,
    nonetheless, there is that safeguard in case of the slight
    chance that something goes wrong.
        And, again, let's remember in the House and the Senate,
    none of us was on television, and we are just as pompous on TV
    or off TV. I do not think it has made a bit of difference. I
    think my colleague here mentioned the Senate, but I have to say
    the House Members are----
        Mr. Issa. That is an----
        Mr. Chabot. I guess they do.
        But there is no doubt that trials are public events. In
    Craig v. Harney, the Supreme Court held that, ``A trial is a
    public event. What transpires in the courtroom is public
    property.''
        Although the Judicial Conference guidelines currently
    prohibit cameras in Federal district courts, every State allows
    for some form of cameras in the courtroom. They do not in the
    District of Columbia, but every State, all 50, do.
        I believe that it is good public policy for Congress to
    facilitate through media access to the courts the ability of
    citizens to exercise their freedom of speech, freedom of press
    and their right to petition the Government for redress of
    grievances, the very rights acknowledged by the Supreme Court
    in Harney.
        Lifetime tenure for unelected officials conveys a
    tremendous amount of power. Why shouldn't our constituents be
    allowed to observe the conduct of Federal judges and their
    proceedings from their homes or from work? Why should citizens
    be forced to rely on the news media to interpret and filter the
    proceedings when cameras would allow citizens to watch and
    interpret for themselves?
        As a co-equal branch of the Federal Government, the Federal
    judiciary has a responsibility to those who appear before it
    and to the public. The judiciary is not above the other two
    branches, nor should it be treated that way. The citizens of
    this Nation have the right to see how our Federal courts
    conduct business.
        I look forward to hearing from our witnesses today, and I,
    again, want to thank both the Chairman and the Ranking Members
    for giving us the opportunity.
        And I yield back the balance of my time.
        Mr. Delahunt. Thank you, Mr. Chabot.
        And without objection, other Members' opening statements
    will be included in the record.
        We have a distinguished group of witnesses before us today.
        Our first witness is Congressman Ted Poe who is a second-
    term Republican from Southeast Texas, Second Congressional
    District. As an Assistant District Attorney for 8 years, he
    tried hundreds of cases, including capital cases, and never
    lost a jury trial.
        Well done, Congressman Poe.
        Later as a judge, he garnered national media attention for
    his ``poetic justice'' in sentencing criminals. His innovative
    punishments included ordering thieves to carry signs in front
    of the stores from which they stole.
        I understand that the congressman has a busy schedule
    today. For those of you that are unaware, he also is a
    congressional delegate to the United Nations, which is a very
    demanding responsibility and task. So what I am going to do is
    to recognize Congressman Poe now to make his statement, and it
    is my understanding that after he concludes his statement, he
    will ask to be excused.
        Congressman Poe?

        TESTIMONY OF THE HONORABLE TED POE, A REPRESENTATIVE IN
                    CONGRESS FROM THE STATE OF TEXAS

        Mr. Poe. Thank you, Mr. Chairman.
        And as the other United Nations delegate from Congress, I
    appreciate the opportunity to address this panel.
        Americans have the right to a public trial. The right dates
    back to the founding of this Nation, and it is based on our
    values of fairness and impartiality.
        The more open and public a trial is, the more likely
    justice will occur. I believe this theory. That is why we do
    not have the secret Star Chamber in the United States. The
    right to a public trial is reserved for a defendant, but the
    public sees it as their right to be informed as well. Cameras
    enhance the concept of fairness and openness in a courtroom.
        Any American can walk into a courtroom to observe the
    proceeding, but if the person does not physically fit inside
    the courtroom, that person is denied the ability to see and
    observe the same proceeding. That does not make sense. Placing
    a camera in the courtroom would allow the trial to be more
    public just like a trial is supposed to be.
        While Federal court hearings are open to the public, not
    everyone can attend a court hearing. This is certainly true of
    appellate and Supreme Court hearings. Because of the impact of
    the United States Supreme Court's rulings on all Americans,
    those proceedings especially should be filmed.
        Probably of all court proceedings, the Supreme Court
    proceedings are the most misunderstood by the public, and the
    Supreme Court should make that decision whether to be filmed or
    not in their discretion. It is time to allow cameras in our
    Federal courts, of course, at the discretion of those Federal
    judges.
        I personally know how important it is to make a courtroom
    and the proceedings and trials accessible by camera to the
    public because I did it. For 22 years, I served as a State
    felony court judge in Houston, Texas.
        I heard over 25,000 felony cases and presided over a
    thousand jury trials. I was one of the first judges in Texas to
    allow cameras in the courtroom. I tried violent cases, murder
    cases, corruption cases, undercover drug cases and numerous
    gang cases.
        I had certain rules in place when the camera filmed in my
    courtroom, and the media followed the rules, including Court
    TV, who is here today. Court TV successfully aired an entire
    capital murder trial in my courtroom. My rules were simple: No
    filming of sexual assault victims or children, never the jury
    or certain other witnesses, such as informants. The unobtrusive
    camera filmed what the jury saw and what the jury heard.
        After the trial, jurors even commented and liked the camera
    inside the courtroom because they wanted the public to know
    what they heard instead of waiting to hear a 30-second sound
    bite from a newscaster who may or may not have the facts
    correct.
        Those who oppose cameras in the courtroom argue that
    lawyers play to the camera. No, lawyers do not play to the
    camera. Lawyers play to the jury, and they always have done so,
    with or without a camera in the courtroom. I know I played to
    the jury for 8 years as a prosecutor.
        I am not an academic, but I have spent 30 years in the
    courtroom as a trial prosecutor and a trial judge, and I tried
    and heard the most serious of all crime. Sometimes those who
    oppose cameras in the courtroom argue that it infringes on the
    defendant's right.
        When I was Assistant District Attorney, I spent my career
    trying criminal cases, and based on my experiences, I actually
    feel the cameras in the courtroom benefit a defendant. A public
    trial ensures fairness. That is the purpose of a public trial.
    It ensures professionalism by the lawyers and the judge, and a
    camera in the courtroom protects the defendant's right to a
    public trial.
        Some members of the bar and judges may not want the public
    to see what is going on inside the courtroom because they do
    not want the public to know what they do in the courtroom.
    Candidly, maybe those people should not be doing what they are
    doing if they do not want the public to see it.
        A camera reveals the action of all participants, and if a
    judge feels that filming a terrorist prosecution or some other
    prosecution involving classified information that assists our
    enemies or terrorists, the judge can always prohibit the
    filming of that trial.
        If the judge fears that any trial participant's safety is
    at jeopardy or the identity of an undercover agent or security
    personnel will be revealed by filming a proceeding, the judge
    can act to disguise that testimony or refuse filming for that
    trial. I had the same situation when I had undercover agents,
    such as the DEA, and informants testify in my courtroom. It is
    discretionary on how the judges handle filming in the
    courtroom.
        The public has a right to watch courtroom proceedings and
    trials in person. Americans should not be deprived of this
    right to know just because they cannot physically sit inside
    the courtroom and hear those proceedings.
        Mr. Chairman, I think we have the best justice system in
    the world. We should not hide it. Many times citizens wonder
    why certain things happen in courts and why the results turned
    out like they did. Openness, transparency and cameras will help
    educate and inform the public that still continues to be
    enthralled with the American court system.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Poe follows:]
       Prepared Statement of the Honorable Ted Poe, a Representative in
                        Congress from the State of Texas
        Americans have a right to a public trial. This right dates back to
    the founding of this nation and it is based on our values of fairness
    and impartiality. The more open and public a trial is, the more likely
    justice will occur. That's why we don't have the secret STAR Chamber in
    America. Cameras enhance this concept of fairness and openness. This is
    a right reserved for defendants, but the public sees it as their right
    to be informed.
        Any American can walk into a courtroom and observe the proceeding.
    But if a person does not physically sit inside the courtroom, that
    person is denied the ability to see and observe the proceeding. This
    does not make sense.
        Placing a camera in the courtroom would allow a trial to be public,
    just like a trial is supposed to be, for those who cannot actually sit
    inside of the courtroom to witness the proceedings. Because of the
    impact that the United States Supreme Court's rulings have on all
    Americans, those proceedings especially should be filmed. While federal
    court hearings are open to the public, not everyone can actually attend
    a court hearing. This is certainly true of appellate and Supreme Court
    hearings. It is time to allow cameras in our federal courts, at the
    discretion of the federal judges.
        I personally know how important it is to make courtroom proceedings
    and trials accessible by camera to the public because I did it. For 22
    years, I served as a Harris County Felony Court Judge in Texas. I heard
    over 25,000 cases and presided over 1,000 jury trials. I was one of the
    first judges in Texas to allow cameras in my courtroom. We generally
    used one camera--out of view to the jury--and it was a shared feed for
    all other news sources, including documentaries and law schools.
        The camera that I had in my courtroom was just like the one inside
    this room. No one here notices the camera--the cameras today are small
    and unobtrusive. It does not interfere with this Committee's
    proceedings. It does not make the Members pander to the camera. But the
    camera allows the public to witness the proceedings when they are not
    able to sit inside the room.
        I had certain rules in place when a camera filmed my courtroom. The
    media always followed the rules that I ordered, including Court TV, who
    is here today. Court TV successfully aired an entire capital murder
    trial in my courtroom. My rules were simple--no filming of sexual
    assault victims, children, the jury, or certain other witnesses. The
    camera filmed what the jury saw and heard.
        After trials were completed, the jurors and criminal parties were
    asked their thoughts on the camera inside the courtroom. There was
    almost total universal approval of the camera. It made the trial fair.
    Juries especially liked the camera inside the courtroom because they
    wanted the public to know what they heard instead of waiting to hear a
    30 second sound-byte from a newscaster, who may or may not have gotten
    the facts straight.
        Those who oppose cameras in the courtroom argue that lawyers will
    play to a camera. No, lawyers don't play to a camera. Lawyers play to
    the jury and they have always done so with or without a camera in the
    courtroom. I know I played to the jury in my 8 years as a prosecutor.
        Those who oppose cameras in the courtroom may also argue that it
    will infringe on a defendant's rights. Before my 22 years on the bench,
    I was an assistant district attorney. I spent my career in criminal
    law. Based on my experiences, I know that cameras in the courtroom
    benefit a defendant. A public trial ensures fairness. It ensures
    professionalism by the attorneys and by the judge. A camera in a
    courtroom protects a defendant's right to a public trial.
        Some members of the bar and judges may not want the public to see
    what is going on inside the courtroom because they don't want the
    public to know what they do in the courtroom. Candidly, maybe these
    people shouldn't be doing what they are doing if they don't want the
    public to know. A camera reveals the action of all participants in a
    trial.
        The public has a right to watch courtroom proceedings and trials
    in-person. Americans should not be deprived of this right just because
    they cannot physically sit inside of the courtroom during the
    proceedings.
        We have the best justice system in the world. We should not hide
    it. Many times citizens wonder why certain things happen in courts and
    why the results turned out the way they did. Openness, transparency,
    and cameras will help educate and inform a public that still continues
    to be enthralled with the American court system. And that's just the
    way it is.

        Mr. Delahunt. Thank you, Congressman Poe.
        And let me acknowledge that your testimony was compelling,
    and I am sure it will go a long way to influence Members of
    this Committee, particularly your fellow Texans. [Laughter.]
        I presume that you have other business to attend to, so----
        Mr. Poe. That is correct, Mr. Chairman.
        Mr. Delahunt. If you wish to depart, now would be an
    appropriate time.
        Mr. Poe. Thank you.
        Mr. Delahunt. Speaking on behalf of the Judicial Conference
    of the United States is Judge John Tunheim. He has been on the
    District Court for the District of Minnesota since 1995.
        He is also the chair of the Judicial Conference Committee
    on Court Administration and Case Management. He previously
    served as Chief Deputy Attorney General of Minnesota and, prior
    to that, as the State's Solicitor General. Previously, he
    worked in private practice.
        Welcome, Judge Tunheim.
        Next, we have Judge Nancy Gertner who serves on the U.S.
    District Court for the District of Massachusetts following a
    20-year career as a criminal defense lawyer and civil rights
    activist. The Massachusetts Lawyers Weekly has listed her as
    one of the most influential lawyers in the past 25 years, and I
    can corroborate that ranking.
        She has been a star during her practice as a prominent
    criminal defense lawyer as well as a judge on the Federal
    District Court. She commands respect from every member of the
    bar in Massachusetts. She has written widely on a number of
    legal issues, including constitutional law, criminal law and
    reproductive rights. Her book, ``The Law of Juries,'' was
    published in 1997. She has taught sentencing at Yale Law School
    since 1998.
        Welcome, Judge Gertner.
        Next, speaking on behalf of the U.S. Department of Justice,
    we have John Richter, the U.S. Attorney for the Western
    District of Oklahoma. Mr. Richter leads a team of nearly 40 in
    civil and criminal cases in areas ranging from narcotics
    trafficking to child pornography.
        Previously, he served as the Acting Assistant Attorney
    General for the Criminal Division of the Department of Justice
    and, prior to that, as a commissioner on the U.S. Sentencing
    Commission.
        Welcome, Mr. Richter.
        Next is Susan Swain, president and co-chief operating
    officer of C-SPAN, the Nation's eighth largest cable television
    network. Along with helping to run the network, she has been an
    on-air interviewer for C-SPAN for 20 years.
        It is nice to see you in person, Ms. Swain.
        She is also a regular moderator of Washington Journal, the
    Nation's famous morning call-in and interview program and one
    is that is avidly watched by all Members of Congress to find
    out what is happening. She has also been involved in the
    creation of C-SPAN's history series, helped launch Book TV in
    the Washington Journal and overseas content on C-SPAN Radio.
        Welcome, Ms. Swain.
        Our next witness is Barbara Cochran, president of the
    Radio-Television News Directors Association and Foundation.
    Previously, she was the Washington bureau chief to CBS News
    and, prior to that, executive producer of NBC's Meet the Press.
        She is a leading advocate for issues facing electronic
    journalists, fighting for cameras and microphones in State and
    Federal courtrooms, protecting journalists' access in post-9/11
    America in opposing Government secrecy. She is a frequent
    speaker on topics such as first amendment rights, the Freedom
    of Information Act, and cameras and microphones in the
    courtroom.
        Welcome, Ms. Cochran.
        Finally, but certainly not last, we have Fred Graham, an
    anchor at Court TV since it was launched in 1991. He served as
    chief anchor and managing editor as well as the head of its
    editorial board. He has received numerous awards for his
    reporting, including the George Foster Peabody Award.
        Over the past 45 years, he has been a practicing attorney,
    legal writer for The New York Times, and law correspondent for
    CBS News. He also served as special assistant to Secretary of
    Labor Willard Wirtz and, prior to that, was chief counsel of
    the Senate Judiciary Subcommittee on Constitutional Amendments.
        Welcome, Mr. Graham.
        Without objection, your written statements will be made a
    part of the record in their entirety. We would ask each of you
    to summarize your testimony in 5 minutes or less. To help you
    keep time, there is a timing light at your table. When 1 minute
    remains, the light will switch from green to yellow, and then
    to red when 5 minutes are up.
        We will begin with you, Judge Tunheim.

        TESTIMONY OF THE HONORABLE JOHN R. TUNHEIM, JUDGE, U.S.
    DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, ON BEHALF OF THE
                JUDICIAL CONFERENCE OF THE UNITED STATES

        Judge Tunheim. Thank you, Mr. Chairman, Ranking Minority
    Member Smith, and Members of the Committee.
        My name is John Tunheim. I am a United States District
    Court judge in Minneapolis in the District of Minnesota, and
    for the past 2 years, I have served as chair of the Judicial
    Conference Committee on Court Administration and Case
    Management. I have been a Member of the committee since 2001.
    The committee has one of the broadest jurisdictions of any
    Conference Committee and includes making recommendations to the
    conference on topics involving court administration.
        I am very grateful to have the opportunity to appear before
    you today to present the position of the United States Judicial
    Conference on the issue of cameras in the courtrooms and
    specifically its position on the Sunshine in the Courtroom Act
    of 2007.
        I should also stress that the Judicial Conference does not
    speak for the Supreme Court and, therefore, I will have no
    comment on the bill's application to that court.
        The Judicial Conference strongly opposes H.R. 2128 because
    it would permit the use of cameras in the Federal trial courts
    in all cases civil, and criminal. The Conference also opposes
    the bill's provisions permitting each appellate court panel to
    decide whether to allow cameras, believing instead that the
    existing conference policy which requires the decision to be
    made by the whole court of appeals to be appropriate.
        The Conference does not take this position because it is
    against increased publicity for the Federal courts. In fact,
    the Federal judiciary is probably the most publicly accessible
    Government institution. Nearly every filing, trial, appellate
    argument, decision and opinion is available and open to the
    public, and, over the past decade, the Judicial Conference has
    dramatically expanded that openness by making its entire filing
    system electronically available to the public through the
    Internet. This major initiative has put the Federal judiciary
    at the forefront of electronic innovation.
        In addition, the Federal trial courts effectively utilize
    videoconferencing, modern electronic evidence presentation
    systems, and, recently, we have embarked on a pilot study
    making digital audio recordings of hearings available on the
    Internet. Many of the courts of appeals make available audio
    recordings of all oral arguments.
        A good example is the arrangements that were made earlier
    this year in the criminal case against Scooter Libby in the
    District Court for the District of Columbia. A separate media
    room was created in which reporters and bloggers had access to
    both real-time video from the courtroom and the Internet.
        The Conference's position regarding cameras in the district
    courts is based on thoughtful and real concerns regarding the
    impact that the camera's presence could have on trial
    proceedings, and, more specifically, the Conference is very
    concerned that this legislation has the potential to
    substantially undermine the fundamental right of citizens to a
    fair trial.
        Appearing on television could lead some trial participants
    to act more dramatically, to pontificate about their personal
    views, to promote commercial interests to a national audience,
    or to increase their courtroom actions so as to lengthen their
    appearance on camera. The use of cameras in the trial courts
    could also raise privacy concerns and produce intimidating
    effects on litigants, witnesses and jurors, many of whom have
    no direct connection to the proceeding.
        The concern about the impact on witnesses is at the heart
    of the Judicial Conference's opposition to the bill. Despite
    the fact that the bill gives the trial court judge discretion
    over permitting cameras, an inclusion which the Conference
    appreciates, it is impossible to determine in advance how
    witnesses will react to the presence of cameras.
        Testifying in Federal court is difficult. It can be
    embarrassing and tough. Adding television to the burden of
    testifying could have a profound effect on a witness. Indeed,
    in the 1994 Federal Judicial Center study, a majority of judges
    reported that witnesses were more nervous in the presence of
    cameras. Many reported witnesses being intimidated or
    distracted by the cameras.
        Will witnesses act differently if they know a television
    audience is listening and watching? Will witnesses say things
    differently? Even changes in the demeanor of a witness can
    severely impact their credibility with the jury.
        Our concern is that cameras in the courtroom will interfere
    with the judiciary's primary mission, which is to administer
    fair and impartial justice to individual litigants in
    individual cases. Also, the Conference is very concerned that
    possible camera coverage could become a negotiating tactic in
    pretrial settlement discussions or cause a party to choose not
    to exercise their right to have a trial.
        I also want to differentiate between the televising of
    trial court proceedings and televising congressional hearings
    or sessions. The Federal trial takes place to determine
    individual's rights and to administer justice. Livelihoods,
    property and even personal liberty are among the crucial
    matters at stake, and the right to have those matters decided
    in a fair and impartial trial is the basis of the distinction
    from the use of cameras in legislative, administrative or
    ceremonial proceedings.
        The paramount question in determining whether cameras
    should be used in Federal courts should not be whether more
    openness would be enjoyed by the public and media. Virtually
    all court proceedings are public and open today with the
    limited exception of juvenile and some national security-
    related matters. The better question is whether the presence of
    the camera has the potential to deprive citizens of their
    ability to have a claim or right fairly resolved in a United
    States District Court.
        Although the legislation gives the presiding judge
    discretion to deny the use of cameras, the potential for
    compromising a citizen's right to a fair trial may not be
    evident until a televised trial is underway. The court would
    likely never know the extent to which the potential or actual
    use of cameras had chilled the search for truth.
        Mr. Delahunt. Judge, could you wrap up, please?
        Judge Tunheim. Okay. In closing, I would like to quote from
    Mr. Justice Clark in the case of Estes v. Texas who I think
    said it very well, ``The impact upon a witness of the knowledge
    that he is being viewed by a vast audience is simply
    incalculable.''
        Because cameras in the trial courts could profoundly and
    negatively impact the dynamics of the trial process, the
    Judicial Conference strongly opposes any legislation that would
    allow the use of cameras in the United States District Courts.
        Thank you.
        [The prepared statement of Judge Tunheim follows:]
              Prepared Statement of the Honorable John R. Tunheim

        Mr. Delahunt. Thank you, Judge Tunheim.
        Judge Gertner?

    TESTIMONY OF THE HONORABLE NANCY GERTNER, JUDGE, U.S. DISTRICT
                COURT FOR THE DISTRICT OF MASSACHUSETTS

        Judge Gertner. Thank you very much, Mr. Delahunt, and thank
    you, Ranking Member Smith and Members of the Committee. I want
    to thank you for giving me an opportunity to speak before you.
    I am in favor of this bill, and I am a lone judicial voice in
    favor of the bill.
        As I describe in my testimony, which I would like to
    supplement after this is over, I think that the issue is not
    whether there should be cameras in the courtroom, but how they
    should implemented. In other words, I think we are past the
    discussion of whether, and we are now into a discussion of how.
        I come to this issue both as a judge and, as Representative
    Delahunt said, as a former litigator. I was a trial lawyer for
    22 years and participated in State court trials which were
    televised.
        I have been a judge for 13 years and, during that period of
    time, I have presided over numerous trials which have attracted
    enormous publicity, most recently Limone v. United States,
    which involved serious accusations of FBI misconduct and, when
    I announced my decision in open court, the room was filled with
    spectators. We provided an overflow courtroom with a video
    feed, and I wish that we had been able to provide a larger
    audience.
        My testimony is based on two prongs. The first is almost
    conceptual, what ``public'' means in the 21st century, which I
    think is a different thing than it meant at the time of the
    Supreme Court decisions on this issue, and also the experience
    in the State courts which has proved that in a setting which is
    far more difficult than the setting of the Federal courts,
    cameras have not had the predicted impact.
        Let me start with what ``public'' means. ``Public'' today
    means television, Internet, means information through screens,
    means 24/7 coverage of proceedings, and we are essentially
    there, all but with cameras. That is to say we have 24/7
    coverage of proceedings. We have transcripts which the press
    has ready access to, and, in fact, I have frequently seen the
    judge with a streaming transcript on the screen.
        In my courtroom, it is an electronic courtroom. The lawyers
    can e-mail one another from the courtroom to their offices.
    There is, in fact, work going on now about a private video feed
    from the lawyers to their own offices. In other words, we have
    equipped our courtrooms to deal with the technological age.
        The portrait of cameras that, again, is implicit in this
    discussion is of an obtrusive device, and I think that that is
    no longer the case.
        In addition, ``public'' today to those of a certain age
    group means getting information through screens. There is a
    huge response, substantial information suggesting that young
    people do not read newspapers. They only get their information
    through screens, and when we do not provide our information in
    that way, it makes a substantial difference.
        Again, the debate has been characterized by the awful
    cases, by O.J. Simpson, by Lorena Bobbitt. There have been
    certainly times I have been watching the television and
    grimaced. It is not clear to me that I would not have been
    grimacing if I were in that courtroom as well in a high-profile
    case.
        I think that the antidote to those cases is to be in the
    courtroom of Judge Young when he sentenced Richard Reid, the
    shoe bomber, or the courtroom of Judge Wolf, when he uncovered
    misconduct in the FBI, or Judge Mazzoni during the course of
    the proceedings on the cleanup of Boston Harbor.
        In the second prong of my testimony is the State courts.
    The State courts deal with murder and rape and child
    molestation, and they have managed to have coverage for nearly
    20 years without any of the anticipated concerns. I deeply
    appreciate the concerns of the other witnesses, but I think
    again that is a question of how and not whether.
        The concern, for example, about witnesses who are
    sequestered, going home and watching television and seeing the
    testimony of their predecessors--well, we actually trust the
    public when we tell them not to read about the case that they
    will not read about the case.
        But, again, we know how to control this technology. We
    could delay the broadcast of proceedings, could obscure faces.
    There are a number of techniques one can use, and that is what
    we should examine because it is a new age.
        Finally, I want to say just I think it is a new age in
    another respect. Twenty-four/seven news coverage of proceedings
    and the anti-judge tirades one frequently sees in late-night
    programs, I think, requires cameras in the courtroom now as an
    antidote to that.
        I believe that we are at a point where judges in one sense
    have to prove their legitimacy, have to demonstrate their
    legitimacy. It is no longer assumed by the public, and I would
    rather prove that legitimacy in my own voice with my own face
    and my own words than have my words described by a late-night
    TV anchor.
        Finally, the strength of this bill is that it does not
    mandate cameras. It does not insist on them. It does not even
    encourage them. It allows judges to exercise their discretion
    to permit cameras in appropriate cases, subject to fair
    limitations. I for one would like to try.
        Thank you.
        [The prepared statement of Judge Gertner follows:]
               Prepared Statement of the Honorable Nancy Gertner

        Mr. Delahunt. Thank you, Judge Gertner.
        Mr. Richter?

             TESTIMONY OF JOHN C. RICHTER, U.S. ATTORNEY,
                      WESTERN DISTRICT OF OKLAHOMA

        Mr. Richter. Thank you, Mr. Chairman, Ranking Member Smith,
    Members of the Committee.
        Again, my name is John Richter. I presently serve as the
    United States Attorney for the Western District of Oklahoma.
        It is my privilege today to speak to you on behalf of the
    Department of Justice to express our strong opposition to and
    deep concerns about H.R. 2128.
        In pursuing cases, it is the duty of each and every United
    States Attorney to see that justice is done. In examining the
    implications of this bill, therefore, I look at whether it will
    add to or detract from the cause of justice.
        The Department of Justice joins with the Judicial
    Conference, many Federal judges and many defenders in
    expressing our concerns about this bill.
        In my prepared remarks, I have identified the many
    potential harms that will flow from placing cameras in Federal
    courtrooms. As the Supreme Court has indicated, giving the
    media a degree of access beyond that available to the public
    will adversely impact witnesses, victims, jurors, judges and
    other trial participants and, in so doing, negatively affect
    our ability to maximize the truth-seeking function of our
    justice system.
        Likewise, because of the exponential increase in the
    dissemination of images that will necessarily flow from placing
    cameras in the courtroom, the risk of harm to judges and other
    trial participants will increase. Judges, defendants and
    witnesses face increased risks as it is. We do not need to add
    to that risk.
        In exchange for these harms, proponents of cameras in
    Federal courtrooms assert that there will be two benefits.
    First, they argue that by broadcasting the proceedings, the
    media, as a surrogate for the public, can act as a check by
    shining the sun on the judicial branch.
        Second, they argue that expanding the manner in which the
    press can cover court proceedings will be educationally
    valuable to Americans. However, when actually examined, neither
    of these arguments carries much weight when compared to
    ensuring that justice is done.
        First, it is hard to see how the media really needs a
    greater means of coverage in order to monitor and check the
    judiciary. After all, the sun is already shining brightly.
    Without this bill, the print and broadcast media still have the
    exact same degree of access to Federal court proceedings as the
    general public.
        These trials are not secret. The bright lights of the
    camera are on the steps of the courthouse every day, and
    journalists are already in the courtroom ferrying information
    immediately to cameras and from there to the viewing public.
        Second, the idea that cameras and broadcasts will increase
    the educational aspects of reporting while carrying superficial
    appeal, in fact, breaks down upon examination. In comparing
    television and newspaper coverage, a Harvard academic study
    showed that media coverage without the presence of cameras in
    the court covered more facts about the case, the actual
    judicial process, the substance of the defense and the larger
    societal impact of the case than the coverage with the cameras.
        The coverage with cameras in court raised few larger
    societal issues. Instead, the cameras' coverage focused
    primarily on the dramatic and the graphic aspects of the trial,
    the emotions of the witnesses and the trials as a strategic
    game between two sides, rather than a proceeding for the
    purpose of ascertaining the truth and seeking justice.
        And why is that? Because if past is prologue, some in the
    media will see trials as a soap opera, as just another
    opportunity to sensationalize, and gain ratings. Of course,
    many media outlets covering trials may behave responsibly. We
    must remember, however, that once we allow the feed from the
    courtroom, no one will be able to control its use or
    dissemination to only the most responsible.
        For some, the Federal court proceedings will not be about
    education. Instead, the coverage will be focused on
    sensationalization and entertainment, but, Mr. Chairman,
    justice is not about entertainment. It is not about making
    money on programming.
        It is about seeking the truth. It is our Nation's best
    attempt at justice in a dignified process, a process that will
    not be improved, but only potentially hurt by cameras and
    broadcasts from inside the courtroom. It is for these and the
    reasons set forth in my prepared remarks that we conclude as
    follows:
        The potential harms this legislation will have on the cause
    of justice greatly outweigh the benefits, if any, to be gained
    by the measure. The Department of Justice, therefore, strongly
    opposes H.R. 2128.
        I would be pleased to answer any questions you or your
    fellow Committee Members may have.
        Thank you.
        [The prepared statement of Mr. Richter follows:]
                     Prepared Statement of John C. Richter

        Mr. Delahunt. Thank you, Mr. Richter.
        Ms. Swain?

              TESTIMONY OF SUSAN M. SWAIN, PRESIDENT AND
                   CO-CHIEF OPERATING OFFICER, C-SPAN

        Ms. Swain. Thank you, Mr. Chairman, Mr. Smith and Members
    of the Committee, for inviting C-SPAN here today to testify
    about an issue that is very near and dear to our network,
    cameras in the Federal courts.
        C-SPAN actually welcomes very strongly the bill's intention
    of making the courts more accessible to television coverage. As
    the Members of this Committee are very aware, our network has a
    long history of advocating greater openness in Federal
    Government, and we believe that the Federal courts should be as
    open to cameras as are the House and the Senate.
        I travel the country a great deal for my job, and it is
    interesting how often the question is asked, ``When will
    cameras be allowed in the Federal courts?'' It is very
    disappointing to explain to people that 16 years after the
    Judicial Conference first began experimenting with television
    coverage, no additional circuits beyond the two in that first
    test, the 2nd in New York and the 9th in San Francisco, have
    moved to allow camera coverage of their proceedings.
        Two things have happened during those 16 years: As the
    judge has indicated, video has come to dominate the
    communications flow in our society; and the 2nd and 9th
    Circuits now have long histories of successful interaction with
    C-SPAN and other television news organizations.
        Let me tell you a little bit about what the experience is
    like being a news organization trying to operate in what has
    become, we think, a patchwork quilt of policies regarding media
    access in the 13 Federal courts.
        While the 2nd and 9th consider requests for cameras, most
    other circuits make audiotapes of their proceedings, and even
    then, access to those audiotapes ranges from no public
    release--in other words, the tapes are for the judge's use
    only--to circuits, which, as noted, post them on their Web
    site. And there is one circuit, the 5th in New Orleans, which
    still relies on written transcripts.
        The status quo is really hard for someone outside the
    system to understand, and let me give you an example from the
    past year to explain why.
        In the past 9 months, two circuits, the 2nd and the 3rd in
    Philadelphia, both heard cases about broadcast indecency
    standards. Because of the current public debate over television
    decency, C-SPAN petitioned both courts for permission to
    televise the sessions: the second, which has the camera policy;
    the third, which does not.
        The 2nd Circuit not only permitted us to bring in cameras,
    but further agreed to our request to televise last December's
    argument in Fox vs. FCC live. By contrast, the 3rd Circuit
    court case, CBS v. FCC, is probably much better known to the
    public because it stems from the 2004 Super Bowl telecast,
    Janet Jackson's so-called ``wardrobe malfunction incident.''
        We asked the 3rd Circuit to consider an exception to its no
    TV policy and permit us to televise this argument. In the end,
    we received a letter from the clerk denying our request on the
    grounds that the 3rd Circuit has no television policy, and
    there we are.
        The 3rd Circuit is one of those courts which audiotapes
    proceedings, so we asked for permission for same-day access to
    the audiotapes, which the court granted. We figured that our
    best resource was to televise the audio of the oral argument by
    adding graphics and pictures of the judges and attorneys. So
    this is where we end up, same-day televised audio with pictures
    bringing us far enough down the road that one has to ask, ``Why
    not simply permit the cameras?''
        Audio with pictures is exactly where we are with the
    Supreme Court oral arguments. And, although we are very pleased
    with Chief Justice Roberts, who has continued Chief Rehnquist's
    practice of considering requests for expedited release of the
    audio of high-court arguments, our batting average in the
    Supreme Court is good, but we wish it were better. So far, we
    have asked the Roberts court for audio in 12 different cases,
    and the chief justice has agreed to seven of our requests.
        Mr. Chairman and Members of this Committee, it has now been
    30 years since C-SPAN argued, and the Congress agreed, that in
    this very vast country, television cameras are a practical
    extension of the press and public galleries in the Capitol
    building, and we believe that the same basic argument holds
    true for the Federal court.
        An open judicial system is fundamental to our democracy.
    Federal judges, after all, are public employees doing the
    public's business in public buildings. We believe, as the
    authors of this legislation do, that the public has a right to
    witness the work of their Federal courts and that considering
    the great size of this country and the reliance on television
    as the means of communication, it is really the only viable way
    for this to happen.
        Mr. Chairman, let me close by reiterating C-SPAN's interest
    in and commitment to greater coverage of the Federal courts on
    our networks, our plan to do it entirely gavel to gavel, and
    complete coverage of the Supreme Court should television access
    be expanded there as well.
        Thank you for letting us present our opinion today.
        [The prepared statement of Ms. Swain follows:]
                      Prepared Statement of Susan M. Swain

                                  ATTACHMENTS

        Mr. Delahunt. Thank you, Ms Swain.
        Ms. Cochran?

               TESTIMONY OF BARBARA COCHRAN, PRESIDENT,
              RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION

        Ms. Cochran. Mr. Chairman, Ranking Member Smith and Members
    of the Committee, thank you for inviting me to appear today on
    behalf of the 3,000 electronic journalists who are members of
    RTNDA.
        The Sunshine in the Courtroom Act of 2007 is an important
    step toward removing the cloak of secrecy surrounding our
    judicial system. In our view, the time has come to enact this
    legislation as speedily as possible. Cameras are now routinely
    present in State courtrooms and have been for more than a
    quarter of a century. Indeed, all 50 States permit television
    and radio coverage at some level and 43 States allow such
    coverage of trials. If cameras can work at the State level,
    they can work at the Federal level, too.
        The U.S. Supreme Court has upheld the first amendment right
    of the public to attend trials. The news media are present as
    surrogates for the public. In the 21st century, there is no
    compelling reason to continue to exclude electronic media from
    Federal courts. Such a discriminatory ban is inconsistent with
    an open judicial process and is a disservice to the public.
        A courtroom is a public forum where the presence of
    citizens or the news media as their surrogates historically has
    enhanced the integrity and quality of the judiciary. Only the
    electronic media can truly convey with accuracy what goes on
    inside a Federal courtroom by enabling the public to observe
    the demeanor, tone, credibility and even the competency and
    veracity of the participants in a proceeding.
        Electronic coverage of Federal court proceedings would
    serve an important purpose for this body as well. The actions
    of the executive branch and the legislature are extensively
    portrayed in the electronic media, but under our current
    system, neither the legislature nor the executive branch has
    ready access to the daily workings of the Federal judiciary.
    Without regular audio visual coverage of court proceedings, two
    co-equal branches' oversight of the judiciary is limited to
    fleeting glimpses offered in confirmation hearings.
        Americans are left knowing more about the jurisprudence of
    Judge Judy than of Justices Roberts and Alito. Jurors,
    prosecutors, lawyers, witnesses and judges at the State and
    Federal levels have overwhelmingly reported that the
    unobtrusive camera has not adversely impacted trials or
    appellate proceedings. The pilot program in the early 1990's
    was a resounding success and resulted in a recommendation that
    cameras be allowed in all Federal courts.
        Comprehensive studies conducted in 28 States show the
    significant social and educational benefits of televised
    coverage of courts. Most conclude that a silent, unobtrusive
    courtroom camera provides the public with more and better
    information about the functioning of courts. RTNDA knows of no
    case in which the presence of a courtroom camera was found to
    have any affect whatsoever on the ultimate result.
        Simultaneous audiovisual coverage of judicial proceedings
    also improves the accuracy of reporting by all media. Such
    coverage affords instant access and verification of quotes to
    reporters who work in print as well as electronic media. In
    contrast to the Harvard study we just heard about, a New York
    study found, ``Reporting on court proceedings, both by
    newspaper and broadcast reporters, frequently is more accurate
    and comprehensive when cameras are present.''
        The 2000 presidential election case illustrates the public
    benefits of audiovisual coverage of judicial proceedings. When
    the case reached the Supreme Court, the court set historic
    precedent by quickly releasing an audio recording of the oral
    arguments. Both television and radio stations broadcast the
    tapes in their entirety. By acting with more transparency, the
    high court laid the groundwork for a common understanding and
    acceptance necessary for closure to the electoral contest of
    2000.
        Federal courts have not taken the initiative to permit
    electronic coverage of their proceedings. Therefore, RTNDA
    respectfully submits that the time has come for Congress to
    legislate.
        RTNDA's members have covered court proceedings in every
    State, and their experience has demonstrated that cameras do
    not interfere with the administration of justice or infringe
    the rights of defendants or witnesses. Cameras in the
    courtrooms work. They create a public record. They get the
    story right.
        In permitting audiovisual coverage in Federal courts at
    every level, including the Supreme Court, you will provide the
    world with unlimited seating to observe the workings of justice
    in the United States.
        Thank you, Mr. Chairman, for the opportunity to testify on
    behalf of the Radio-Television News Directors Association
    before your Committee today.
        [The prepared statement of Ms. Cochran:]
                     Prepared Statement of Barbara Cochran
        Mr. Chairman and Members of the Committee, I am Barbara Cochran,
    President of the Radio-Television News Directors Association. Thank you
    for inviting me to appear today on behalf of the 3,000 electronic
    journalists, educators, students and executives who comprise RTNDA, the
    world's largest professional organization devoted exclusively to
    electronic journalism.
        At the Committee's request, I will address proposed legislation to
    allow media coverage of federal court proceedings. As you know, under
    present law, radio and television coverage of federal criminal and
    civil proceedings at both the trial and appellate levels is effectively
    banned. The Sunshine in the Courtroom Act of 2007 represents an
    important step toward removing the cloak of secrecy surrounding our
    judicial system by giving all federal judges the discretion to allow
    cameras in their courts under a three-year pilot program.
        Americans base their opinions and perceptions of our judicial
    system on a variety of sources. We are influenced by popular culture:
    the four major broadcast networks currently air at least ten different
    hour-long prime-time programs dealing with courts or the criminal
    justice system. Three of the eight shows are regularly set in or around
    courtrooms. In addition, local broadcasters' daytime offerings
    frequently include confrontational programs, such as Judge Judy, that
    purport to approximate atmosphere of a civil courtroom.
        Within this context, does it make sense that judicial nominees are
    closely scrutinized in the Senate Judiciary Committee's confirmation
    ``hot seat,'' only to be obscured from view after they ascend to the
    bench? RTNDA's members think not.
        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. RTNDA strongly believes
    that permitting electronic coverage of federal judicial proceedings--
    from federal district courts to the United States Supreme Court--is the
    right thing to do as a matter of sound public policy. Moreover, RTNDA
    believes that the decision to allow cameras in federal courtrooms is a
    legislative prerogative. Passage of this legislation will send a
    message to judges that giving the public access to courts through
    televised proceedings is a right and an opportunity, not an
    inconvenience.
        RTNDA respectfully submits that there is no compelling reason to
    stall the passage of this legislation. The First Amendment right of the
    public to attend trials has been upheld by U.S. Supreme Court. The
    presence of cameras in many state courtrooms is routine and well-
    accepted. The anachronistic, blanket ban on electronic media coverage
    of federal proceedings conflicts with the values of open judicial
    proceedings and disserves the people.
        Allowing electronic coverage of federal court proceedings serves an
    important purpose for this body, as well. It allows the legislature to
    criticize actions taken by the executive, and it affords the executive
    an opportunity to prod reluctant lawmakers. But under our current
    system, neither the legislature nor the executive have ready access to
    the day-to-day workings of the federal judiciary. Without regular
    audiovisual coverage of court proceedings, two co-equal branches'
    oversight of the judiciary is constrained to fleeting glimpses offered
    in confirmation hearings.
        A courtroom is, by nature, a public forum where citizens have the
    right to be present, and where their presence historically has been
    thought to enhance the integrity and quality of what takes place.
        The interests of our citizens are not fully served, in this day and
    age, by opening federal courtrooms only to a limited number of
    observers, including the press, who can publicize any irregularities
    they note. In practice, what goes on inside a courtroom can only be
    effectively reported if the court permits journalists to use the best
    technology for doing so. There is no principled basis for allowing
    print media and not electronic media to use the tools of their trade
    inside federal courtrooms. Only the electronic media can serve the
    function of allowing interested members of the public not privileged to
    be in the courtroom to see and hear for themselves what occurs. As
    Judge Nancy Gertner, who will testify before you today, aptly stated in
    testimony before the Senate Judiciary Committees' Subcommittee on
    Administrative Oversight and the Courts some seven years ago, ``public
    proceedings in the twenty-first century necessarily mean televised
    proceedings.''
        Technological advances in recent decades have been extraordinary,
    and the potential for disruption to judicial proceedings has been
    minimized. The cameras available today are small, unobtrusive, and
    designed to operate without additional light. Moreover, the electronic
    media can be required to ``pool'' their coverage in order to limit the
    equipment and personnel present in the courtroom, further minimizing
    disruption.
        It cannot seriously be disputed that audiovisual coverage, which
    would allow for complete and direct observation of the demeanor, tone,
    credibility, contentiousness, and perhaps even the competency and
    veracity of the participants, is the best means through which to
    advance the public's right to know as it pertains to the actions of the
    federal judiciary. Public access to judicial proceedings should not and
    need not be limited to reading second-hand accounts in newspapers, or
    hearing them on radio or seeing them on television. By nature, the
    electronic media is uniquely suited to ensure that the maximum number
    of citizens have direct and unmediated access to important events.
        The Committee should not be swayed by those who are quick to point
    the finger at a few extreme examples of courtroom spectacles. Even
    though television coverage of a handful of court proceedings has been
    criticized as mere ``sensationalism,'' the Committee should remember
    that the camera shows what happens; it is not a cause. The prohibition
    on audiovisual coverage of federal judicial proceedings has resulted in
    viewers witnessing those events that take place on the courthouse
    steps, not those transpiring where it matters most--inside the
    courtroom.
        Jurors, prosecutors, lawyers, witnesses and judges on both the
    state and federal levels have overwhelmingly reported for the last
    decade or so that the unobtrusive camera has not had an adverse impact
    on trials or appellate proceedings. The pilot cameras program conducted
    by six federal districts and the Second and Ninth Circuit Courts of
    Appeals between 1991 and 1993 was a resounding success, resulting in a
    recommendation that cameras be allowed in all federal courts. This past
    summer, five federal district courts entered a new pilot program to
    make digital audio recordings of proceedings available online. Although
    audio recordings are no substitute for live audiovisual broadcasts,
    RTNDA is encouraged and sees this program as a step in the right
    direction.
        All 50 states now permit some manner of audiovisual coverage of
    court proceedings. 43 states allow electronic coverage at the trial
    level. The District of Columbia is the only jurisdiction that prohibits
    trial and appellate coverage entirely, but even it has not remained
    immune from technological advances and demands for greater
    transparency. Last year, the District of Columbia Court of Appeals
    opened its doors, virtually, and began offering live audio webcasts of
    appellate oral arguments.
        Comprehensive studies conducted in 28 states show that television
    coverage of court proceedings has significant social and educational
    benefits. Most conclude that a silent, unobtrusive in-court camera
    provides the public with more and better information about, and insight
    into, the functioning of the courts. Many have found that the presence
    of cameras does not impede the fair administration of justice, does not
    compromise the dignity of the court, and does not impair the orderly
    conduct of judicial proceedings. In the hundreds of thousands of
    judicial proceedings covered electronically across the country since
    1981, to the best of RTNDA's knowledge there has not been a single case
    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.
        It is also worth noting that simultaneous audiovisual coverage of
    judicial proceedings improves the media's overall ability to accurately
    report on them. Such coverage affords a greater pool of reporters
    instantaneous access. In-court events, including quotations, can be
    verified simply by playing back an audio or videotape. As one New York
    study found, ``reporting on court proceedings, both by newspaper and
    broadcast reporters, frequently is more accurate and comprehensive when
    cameras are present.''
        One compelling illustration of the public benefits resulting from
    audiovisual coverage of judicial proceedings involves the presidential
    election dispute in the fall of 2000. Given Florida state rules that
    permit cameras in the courtroom, the nation was able to watch and
    listen live as the Florida courts, including the state's Supreme Court,
    heard arguments in President Bush's bid to throw out hand-counted
    ballots that former Vice President Al Gore hoped would win him the
    presidency.
        In response to requests from numerous media organizations,
    including RTNDA, to allow television coverage of the subsequent oral
    arguments before the United States Supreme Court, the late Chief
    Justice Rehnquist wrote, ``the Court recognizes the intense public
    interest in the case and for that reason today has decided to release a
    copy of the audiotape of the argument promptly after the conclusion of
    the argument.'' Radio stations played the tapes in their entirety;
    their television counterparts played long excerpts, supplemented with
    photos and the familiar artists' sketches. Later, Chief Justice
    Rehnquist told a CNN reporter that he was very pleased with the
    reception that the playing of the court's audiotapes had gotten. People
    who before the election couldn't have named one justice now could name
    all nine. As divisive as the 2000 electoral contest was, the openness
    of the courtrooms produced the common understanding and acceptance
    necessary for political closure.
        The Supreme Court has released audiotapes of other high profile
    cases in recent years, thus permitting the public to hear oral argument
    concerning such serious issues as United States courts' jurisdiction
    over claims by foreign citizens held at the Guantanamo Naval Base and
    whether the government may withhold constitutional protections from a
    U.S. citizen detained as an ``enemy combatant.'' While the electronic
    media has welcomed release of these select recordings, they are no
    substitute for consistent, complete audiovisual coverage.
    Significantly, in response to questions posed by members of this
    Committee during his confirmation hearings, our new Chief Justice, John
    Roberts, stated that he is open to the idea of televising Supreme Court
    proceedings.
        Indeed, because of the federal ban, American citizens have been
    deprived of the benefits of first-hand coverage of significant issues
    that have come before the United States federal district courts,
    federal appellate courts, and the Supreme Court in recent years. For
    example:

              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;

              Whether the term ``Under God'' in the Pledge of
            Allegiance is unconstitutional;

              Whether a state university may consider race and
            ethnicity in its admissions process;

              Whether a student may be disciplined for carrying a
            vaguely pro-drug banner at a public event near his school.

              Whether parents have a constitutionally protected
            right to prevent schools from providing information on sexual
            topics to their children.

              Whether an employee may be awarded back-pay for
            twenty years difference between her salary and those of her
            male counterparts.

        In contrast, people throughout the world were able to turn on their
    television sets (or their computers) to witness for themselves opening
    proceedings in the trial of Saddam Hussein and seven of his associates
    accused of crimes against humanity. The judges involved and the Iraqi
    people apparently understood how critically important it was to make
    this process truly public. Ironically, if the United States had
    successfully argued to have the case come before one of our federal
    courts, our laws would have prohibited broadcast of the trial.
        For whatever reasons, 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. As federal district Judge Leonie Brinkema wrote
    in rejecting requests for televised coverage of the trial of alleged
    terrorist Zacarias Moussaoui, whether or not to permit cameras in
    federal courtrooms is a question of social and political policy best
    left to the United States Congress. The legislation proposed by
    Representatives Chabot, Delahunt, McCotter and Poe represents a careful
    approach by giving federal judges at both the trial and appellate
    levels the discretion to allow cameras in their courts under a three-
    year pilot program. At its conclusion, Congress and federal judges
    would be given an opportunity to review the program.
        I should mention here that RTNDA believes that federal law
    governing television coverage of the judicial branch should be grounded
    in a presumption that such coverage will be allowed unless it can be
    demonstrated that it would have a unique, adverse effect on the pursuit
    of justice or prejudice the rights of the parties in any particular
    case. Placing decisions as to whether or not to ``pull the plug'' on
    electronic coverage in the hands of the parties would render the
    legislation ineffective.
        The public has a right to see how justice is carried out in our
    nation. As the Supreme Court has stated, people in an open society do
    not demand infallibility from their institutions, but it will be
    difficult for them to accept what they are prohibited from observing.
    Public scrutiny will help reform our legal system, dispel myth and
    rumors that spread as a result of ignorance, and strengthen the ties
    between citizens and their government. The courtroom camera not only
    gets the story right, it creates a record of the proceedings and opens
    a limited space to a broader audience. Experience shows that cameras in
    the courtroom work and that they do not interfere with administration
    or infringe on the rights of defendants or witnesses. 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.
        In the same way the public's right to know has been significantly
    enhanced by the presence of cameras in the House and then the Senate
    over the past two decades, the proposed legislation that is the subject
    of today's hearing has the potential to illuminate our federal
    courtrooms, demystify an often intimidating legal system, and subject
    the federal judicial process to an appropriate level of public
    scrutiny. While both print and electronic media fulfill the important
    role of acting as a surrogate for the public, only television has the
    ability to provide the public with a close visual and aural
    approximation of actually witnessing events without physical
    attendance. It is time to provide unlimited seating to observe the
    workings of justice everywhere in the United States by permitting
    audiovisual coverage of federal judicial proceedings at all levels,
    including those before the United States Supreme Court.
        Thank you, Mr. Chairman, for the opportunity to testify on behalf
    of RTNDA before your committee today.

        Mr. Delahunt. Thank you, Ms. Cochran.
        And now our last witness, Mr. Fred Graham.

           TESTIMONY OF FRED GRAHAM, SENIOR EDITOR, COURT TV

        Mr. Graham. Thank you, Mr. Chairman.
        My name is Fred Graham. I am the Senior Editor of Court TV.
        I want to start by commending the Chairman, Congressman
    Delahunt, and Congressman Chabot--they were the original
    sponsors of the precursor to this legislation, and they have
    been very faithful in supporting us through this proposed
    legislation ever since--and also the other Members of the
    Committee.
        After all, this Committee has twice approved earlier
    versions of this testimony, and it is clear to you all that
    Court TV does support the legislation. We hope the third time
    will be a charm, that it will go through, again, this
    Committee, but this time it will turn out to be in the end a
    statute.
        I filed my statement. I want to make two points, and the
    first one is fortuitous because, as you know, lawyers love to
    quote Oliver Wendell Holmes, and Oliver Wendell Holmes had a
    principle that goes to the core of what we are talking about
    today. He said, ``The life of the law is not logic. It has been
    experience.''
        And what he meant by that in this context is to go to the
    heart of the bona fides of this issue, it is not helpful to
    have a lawyer go through in his mind and lay out a parade of
    horribles, of things that might happen or theoretically could
    happen, because we have so much experience in what has happened
    through cameras in courts.
        Now we at Court TV have had a unique, I think in the world,
    opportunity to obtain experience on this issue. Since we went
    on the air 16 years ago, we have covered more than 900 trials
    and judicial proceedings. Thirty thousand hours we have put on
    the air of real trials being covered by cameras, and you cannot
    imagine how frustrating it is when we have seen through the
    course of 30,000 hours while we put on the air these trials
    that the camera coverage does not have a harmful effect.
        You can tell the psychology which is behind that lack of
    harmful effect, and that is it is so clear when you see a trial
    begin that is being televised that after the first 3 or 4
    minutes, the participants just tune out the fact that there is
    a camera there. They do not pay any attention to it. These
    trials typically go 3 weeks, 6 weeks, and, after the first few
    minutes, the camera means nothing.
        So what we see is that the camera does not prevent the
    trial that is being covered by the camera from being as
    ordinary and as dignified as the trial next door where there is
    no camera in effect.
        Now my second point has to do with really befuddlement on
    our part because we are, frankly, confused and uncertain as to
    why it is that the Judicial Conference is so extreme in its
    opposition to this bill.
        As Judge Gertner pointed out, this does not require the
    presence of cameras in any court. This only permits the judge
    to exercise his or her discretion to decide if it should be
    covered.
        Now here is a group of judges who have the power to make
    decisions over life or death. They can enjoin the President of
    the United States. They can declare unconstitutional acts that
    you, Members of Congress, have put into effect. And yet
    basically the Judicial Conference seems to be saying they
    cannot be trusted to have discretion to rule on this one point.
        I must say that it is a matter of confusion to us. I would
    be interested to hear some explanation of it. We feel that this
    statute should become law. We hope that it will, and I will be
    happy to try to answer any questions you may have.
        [The prepared statement of Mr. Graham follows:]
                       Prepared Statement of Fred Graham
        Chairman Conyers, Ranking Member Smith and Members of the
    Committee, my name is Fred Graham. I joined Court TV as an anchor when
    it first was launched in 1991. I served as the Chief Anchor and
    Managing Editor of Court TV. In that capacity, I hosted Court TV's
    morning trial coverage program Open Court. Recently, I assumed the new
    role of Senior Editor and serve as the Chair of Court TV's editorial
    board. I also continue to report on key legal news events from here in
    Washington, D.C. Prior to joining Court TV, I was a legal writer for
    The New York Times and law correspondent for CBS News. Very early in my
    career, I was the Chief Counsel of the Senate Judiciary Subcommittee on
    Constitutional Amendments under Chairman Estes Kefauver of Tennessee. I
    earned my law degree at Vanderbilt University, where I was the Managing
    Editor of the Vanderbilt Law Review and was elected to the Order of the
    Coif.
        Mr. Chairman, Court TV strongly supports H.R. 2128, the Sunshine in
    the Courtroom Act of 2007. We believe that the First Amendment right of
    the people of the United States to the freedom of speech, particularly
    as it relates to their right to present their opinions on the affairs
    of the Government, cannot be exercised meaningfully without the ability
    of the public to obtain facts and information upon which to base their
    judgments about important issues and events. As the United States
    Supreme Court stated in Craig v. Harney (1974), ``A trial is a public
    event.'' ``What transpires in the court room,'' the Court continued,
    ``is public property.''
        Further, Mr. Chairman, Court TV believes that the First Amendment
    right of the people of the United States to petition the Government to
    redress grievances, particularly as it relates to the manner in which
    the Government exercises its legislative, executive, and judicial
    powers under the Constitution, cannot be exercised meaningfully without
    the availability to the public of information about how the affairs of
    the Government are being conducted. As the Supreme Court noted in
    Richmond Newspapers, Inc. v. Commonwealth of Virginia (1980), ``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.''
        H.R. 2128 would provide statutory authority for United States
    District Judges to allow, at their discretion, televised coverage of
    public trials. As the Supreme Court stated in In re Oliver (1948),
    ``Whatever other benefits the guarantee to an accused that his trial be
    conducted in public may confer upon our society, the guarantee has
    always been recognized as a safeguard against any attempt to employ our
    courts as instruments of persecution.'' ``The knowledge that every
    criminal trial is subject to contemporaneous review in the forum of
    public opinion,'' the Court continued, ``is an effective restraint on
    possible abuse of judicial power.''
        Mr. Chairman, by allowing delayed audio broadcasts of the oral
    arguments before the Supreme Court in last fall's partial-birth
    abortion and affirmative action cases, Chief Justice John Roberts has
    recognized the great public interest in nationwide access to important
    judicial proceedings. Building on that principle, Representatives
    Chabot and Delahunt have introduced H.R. 2128, their bipartisan
    legislation to give Federal judges the discretion to allow the
    televising of proceedings in their courtrooms. Senators Schumer and
    Grassley have introduced companion legislation in the Senate. An
    earlier version of H.R. 2128 passed the House Judiciary Committee as
    part of H.R. 1751, the Secure Access to Justice and Court Protection
    Act of 2005, in the 109th Congress.
        H.R. 2128 would codify Chief Justice Roberts's inherent
    discretionary authority to allow the televising of Supreme Court
    proceedings. Presiding judges of panels of the Courts of Appeals and
    District Court Judges would be given statutory authority to exercise
    discretion in allowing televised coverage of proceedings in their
    courtrooms. The bill gives the Judicial Conference the authority to
    formulate and issue guidelines to which judges may refer in deciding
    whether to allow the televising of particular cases. H.R. 2128 also
    includes a three-year sunset provision.
        Recognizing special concerns about televising trials in the
    District Courts, H.R. 2128 provides strong safeguards. On the request
    of any trial witness other than a party, a District Judge must order
    the face and voice of the witness to be disguised or obscured in a
    manner that renders the witness unrecognizable to the television
    audience. The bill also prohibits the televising of jurors.
        H.R. 2128 is fully consistent with the trend in the states. All 50
    states allow cameras at some level of their judiciaries. Based on our
    most recent review, 43 states permit cameras in their civil trial
    courts. Of those, 39 states allow cameras in criminal trials. Thus, at
    the state level, there is a growing consensus that cameras in the
    courtrooms serve the public interest.
        Mr. Chairman, Justice Oliver Wendell Holmes said, ``The life of the
    law has not been logic, it's been experience.'' Since 1991, Court TV
    has covered more than 900 trials and other judicial proceedings,
    providing more than 30,000 hours of courtroom coverage. We have seen
    over the years how the participants in these trials ``tune out'' the
    camera and how the televised proceedings are conducted in the normal,
    orderly way. We have always made a special effort to cover trials that
    involve issues of great public interest and importance. We believe that
    through our coverage of these trials, the members of the public who
    have watched them have gained an enhanced respect for our judicial
    system and a greater understanding of our laws.
        The trials that Court TV has covered have involved many of the most
    serious social, political, cultural and economic issues of our time. In
    1992, for example, Court TV provided live coverage of a hearing before
    the International Court of Justice in a case involving the 1988
    terrorist bombing of Pan Am Flight 103, which killed 270 people, over
    Lockerbie, Scotland. We also covered the criminal trials of Dr. Jack
    Kevorkian, who was accused of violating state laws against assisted
    suicide and euthanasia. In 2005, we covered the trial of the notorious
    Columbus, Ohio, highway shooter Charles McCoy, who admitted to a string
    of shootings, one of which killed a woman, but claimed innocence by
    reason of insanity. Also in 2005, we covered the case of Mississippi v.
    Killen, in which 80-year-old Edgar Killen stood trial for murder in the
    deaths of three civil rights workers who were killed while registering
    black voters in rural Mississippi.
        We at Court TV believe that our trial coverage serves very
    important public interests. At times, in fact, our trial coverage can
    help diffuse highly charged, volatile situations in very controversial
    cases. One of the best examples of this occurred in a case that
    attracted considerable national attention, the 2000 trial of four New
    York City police officers who were charged in the shooting death of an
    unarmed man, Amadou Diallo.
        Judge Joseph Teresi, the trial judge who was assigned to the case,
    understood the importance and value of having the New York City public
    watch the trial after venue was relocated to Albany. When the televised
    trial resulted in the acquittal of the police officers, public
    acceptance of the verdict was widely attributed to the fact that the
    people of New York had been able to watch and listen to the proceedings
    with their own eyes and ears. After the trial, then-New York City Mayor
    Rudolph Giuliani commended the trial judge for opening the courtrooms
    to cameras. As a result of televised coverage of the Diallo trial,
    Mayor Giuliani commented, the public ``had the opportunity to listen
    and to see and to observe all of the witnesses; to observe the judge
    and the way in which he conducted the case; to sit by and listen to all
    the analysis the jury went through; and, they can draw their own
    judgment.'' ``And I believe that fact alone--the camera and the
    television coverage of it,'' the Mayor continued, ``--has changed the
    minds of a lot of people about what happened.''
        Mr. Chairman, in the sixteen years that Court TV has been
    televising more than 900 trials, no judgment in the United States has
    been reversed because a television camera was in the courtroom. One has
    to look back more than four decades, to a time when television was in
    its infancy and cameras were still generally prohibited, to find a case
    to the contrary. In Estes v. Texas (1965), by a bare 5-4 majority, the
    Supreme Court reversed a criminal conviction based in part on a
    determination that the televising of a pre-trial hearing and parts of
    the trial had prejudiced the defendant. Four members of the Court,
    responding to the argument that television technology and the public's
    reliance on television news would continue to advance, stated that ``we
    are not dealing here with future developments,'' nor with ``the
    hypothesis of tomorrow,'' but with ``the facts as they are presented
    today.'' Justice Harlan's concurring opinion struck a similar note.
    Limiting his agreement with the majority to the facts of the case,
    Justice Harlan observed that ``the day may come when television will
    have become so commonplace an affair'' as to ``dissipate all reasonable
    likelihood that its use in courtrooms may disparage the judicial
    process.'' ``If and when that day arrives,'' he concluded, ``the
    constitutional judgment called for now would of course be subject to
    reexamination.''
        Mr. Chairman, in this first decade of the 21st Century enters its
    final years, the day of which Justice Harlan spoke surely has arrived.
    When Estes was decided, audio visual technology was crude and other
    recording devices frequently intruded upon the dignity and conduct of
    courtroom proceedings with noisy cameras, bright klieg lights, snaking
    cables, and numerous technicians scurrying about the courtroom.
        Today, by contrast, broadcasters typically employ a single,
    stationary camera, which produces no noise and requires no additional
    lighting. The camera is placed away from the proceedings and, if
    necessary, can be operated by remote control. Wiring is unobtrusive.
    Microphones are small and are never operated in such a way as to record
    private conversations between attorneys and clients. Those microphones,
    in fact, are turned off during all parts of the proceedings that are
    not part of the public record. Thus, the electronic media routinely
    record trial court proceedings without disturbing their orderly, serene
    conduct. Not only, to use Justice Harlan's words, is there no
    ``reasonable likelihood'' that the simple presence of a modern in-court
    camera will ``disparage the judicial process,'' but also there can be
    no question that television has ``become so commonplace an affair''
    that the day that Justice Harlan foresaw has, in fact, now arrived.
        In fact, in today's world many Americans receive most of their news
    and information from television--so that if the judicial system is to
    be known and understood by the great mass of American citizens, it must
    communicate with them by way of television. Since years of experience
    have demonstrated that television coverage of judicial proceedings does
    no harm, it is in the public interest to open the judicial system to
    television coverage to the greatest feasible extent.
        Finally, Mr. Chairman, I want to comment on the continuing
    opposition to this legislation by the Judicial Conference of the United
    States. I find it ironic indeed that the Judicial Conference opposes
    this bill. After all, H.R. 2128 does not require cameras in our
    Nation's Federal courts. Rather, it merely grants discretion to
    District Judges to decide, on a case-by-case basis, whether, and to
    what extent, to allow televised coverage of judicial proceedings in
    their courtrooms. Moreover, as I noted earlier, the bill explicitly
    grants the authority to the Judicial Conference to ``promulgate
    advisory guidelines to which a presiding judge, at the discretion of
    that judge, may refer in making decisions with respect to . . .
    televising [judicial proceedings].'' Thus, by opposing this bill, the
    members of the Judicial Conference seem to be questioning their
    judicial brethrens' ability exercise their discretion wisely and to
    follow the advisory guidelines that the Conference itself would issue.
        No one would dispute that U.S. District Judges in our Nation have
    tremendous power. They may declare acts of the Congress
    unconstitutional. They may issue injunctions against the President's
    exercise of his executive power if they find that it is contrary to the
    Constitution. They may sentence defendants convicted of capital crimes
    to death or send convicted defendants to prison for the rest of their
    lives. The notion that we can trust our Nation's Federal judges with
    these awesome powers, but cannot trust them to exercise their
    discretion wisely in deciding whether to allow televised coverage of
    trials in their courtrooms is, to say the least, a strange one indeed.
        Specifically, in his testimony on behalf of the Judicial Conference
    before the Senate Judiciary Committee on nearly identical legislation
    in 2005, Judge Diarmuid O'Scannlain asserted that ``camera coverage
    would . . . have a notably adverse impact on trial court proceedings.''
    ``This, he continued, ``includes the impact the camera and its
    attendant audience would have on the attorneys, jurors, witnesses, and
    judges.'' Once again, Mr. Chairman, all that H.R. 2128 does is to grant
    District Judges the discretion to decide, on a case-by-case basis,
    whether to allow cameras. In doing so, Judges necessarily will take
    into account whether cameras in any particular case would, in fact,
    have an ``adverse impact'' on ``attorneys, jurors, witnesses and
    judges.'' In fact, the discretion that is granted by the bill is so
    broad that some Judges could decide that they do not believe that
    cameras are ever appropriate and make such determinations in each and
    every case before them.
        Beyond that, as I noted earlier, H.R. 2128 provides that non-party
    witnesses have an absolute right to have their faces and voices
    obscured if they make that request of the Judge. In addition, as I also
    pointed out, H.R. 2128 specifically prohibits the televising of members
    of jurors. Thus, H.R. 2128 has built-in safeguards that address any
    legitimate concerns about the effects of cameras on witnesses and
    jurors. As for the Judicial Conference's concerns about the effects of
    cameras on attorneys and judges, H.R. 2128 leaves it to the Judge to
    evaluate any such effects and make the determination whether to allow
    cameras in light of them.
        Thank you, Mr. Chairman, for this opportunity to testify. I would
    be happy to respond to any questions that you or the other members of
    the Committee may have for me.

        Mr. Delahunt. Well, thank you, Mr. Graham.
        And I do share that befuddlement that you alluded to.
        And I am going to go to the Ranking Member, Mr. Smith, at
    this point in time, and I will save my own questions for
    somewhere along the track.
        Mr. Smith?
        Mr. Smith. Thank you, Mr. Chairman.
        Judge Tunheim and Mr. Richter, let's try to dispel some of
    that befuddlement, if we can.
        It seems to me inherently difficult to try to quantify the
    adverse impact of cameras in the courtroom, particularly on
    witnesses.
        Judge Tunheim, I know the Judicial Conference has over the
    course of several decades conducted any number of studies. Is
    there any evidence in those studies of that adverse impact of
    the cameras in the courtroom, particularly on witnesses?
        And, Mr. Richter, going not to logic, but to experience, do
    you have any experience in the courtroom that you would be able
    to point to that would be examples of real life adverse impact
    on courtroom activities?
        And we will start with the judge the first.
        Judge Tunheim. Thank you, Congressman Smith.
        There is evidence in the most recent study done by the
    Federal Judicial Center of this strong concern that cameras may
    impact the testimony of witnesses. The study reported the views
    of judges who had presided over trials which were televised,
    and the results were that about 64 percent of participating
    judges felt that at least to some extent cameras made witnesses
    more nervous, 46 percent of the judges believed that at least
    to some extent cameras made witnesses less willing to appear in
    court, and we often have some difficulty getting witnesses to
    testify, particularly if they are outside a judge's subpoena
    power.
        Mr. Smith. So you are going actually to the administration
    of justice in America when you talk about those kinds of
    examples.
        Judge Tunheim. Absolutely. It is a difficult thing to
    testify in Federal court, and anything which discourages people
    from participating in trials as a witness is a cause for
    concern.
        And there is one other figure coming out of the FJC study,
    and that was 41 percent of the judges felt that cameras
    distracted witnesses.
        So there clearly is evidence from the study that this
    concern about witnesses is a legitimate one.
        Mr. Smith. Okay. Thank you, Judge Tunheim.
        Mr. Richter?
        Mr. Richter. Thank you, Mr. Smith.
        From a prosecutor's perspective, working with victims and
    witnesses is a critical part of the truth-seeking function of a
    case, both from the prosecutor and from defense counsel's
    perspective, and it is their testimony during the course of a
    trial that, of course, is some of the key facts that come into
    evidence that make or break a case.
        And so to follow on what Judge Tunheim has just stated, for
    example, particularly in cases involving victims of violent
    crime, domestic violence, for example, these are victims who,
    obviously, are being called into court through no choice of
    their own. They were victims of a very serious crime. They do
    not want to be there. The circumstances are deeply personal,
    they are deeply humiliating. It is tough, in most of these
    cases, to bring the case in to begin with and to get them there
    and to gain their cooperation to begin with.
        For those who have worked with victims of domestic
    violence, many of them recant. Many of them reconcile. It is
    very difficult to come back and get them into the courtroom.
    And so for those types of victims, it is incredibly difficult
    to begin with, and adding on top of that then the pressure that
    comes from knowing that your remarks are not only going to be
    heard by the people in that courtroom, but they are going to be
    heard and stamped indelibly on the Worldwide Web, we believe is
    a significant factor that will weigh in a victim or in that
    witness's testimony.
        And to follow on the pilot project, the fact that judges
    have observed the change in demeanor, the nervousness, what
    juries have to judge is the credibility of a witness or
    victim's testimony, and if they appear more nervous than, in
    fact, they should have as a result of that camera, then justice
    is not being done.
        Mr. Smith. Okay. Thank you, Mr. Richter.
        Maybe I can squeeze in one more question here. And you have
    both given the statistical evidence as well as the real life
    case examples, and I think that that is helpful to all this.
    Why not allow district judges discretion to determine whether
    or not they want cameras in the courtroom like we do sometimes
    on the appellate level?
        You will have to give a brief answer, if you will, Judge.
        Judge Tunheim. Well, the Conference has studied this issue
    carefully and believes that the concern about witnesses,
    primarily the concern about security, the kind of pressure that
    would be brought to bear on televising proceedings is
    counterproductive, and it is just best that these proceedings
    go forward without the television cameras present.
        They are open proceedings. Anyone can come. The media is
    present at most of our proceedings and can be present at any
    one, and there is really no need to add to the concern that
    presents for witnesses.
        Mr. Smith. Thank you, Judge Tunheim.
        Mr. Chairman, thank you.
        Mr. Delahunt. Mr. Davis of Alabama, a former Federal
    prosecutor himself, distinguished Member?
        Mr. Davis. Thank you, Mr. Chairman, and thank you for
    recognizing me.
        I welcome the panel here today. I am a young man, so I have
    not spent a lot of my time doing anything in life, but I spent
    a little bit of time as a Federal prosecutor and as a law clerk
    for a Federal judge, and I am certainly honored to see the
    judges and U.S. Attorney here today.
        Let me make some observations and perhaps invite response
    from the panel today.
        And, Judge Tunheim, let me start with your observations and
    Mr. Richter's observations.
        I certainly respect the observations that you make about
    the possibility that witnesses could be made nervous or could
    be constrained or affected in some way, but I wonder if the
    question were asked of witnesses, ``Does the presence of the
    defendant make you nervous?'' I bet a substantial number would
    say it does.
        I will bet if you asked witnesses, ``Does the presence of
    an audience full of live people make you nervous?'' I will bet
    they would say it does. I will bet if you asked witnesses who
    were testifying pursuant to a plea agreement, ``Does the fact
    that there is a plea agreement hanging over your head and a
    prosecutor has to evaluate your performance make you nervous?''
    I bet they would say it does.
        I am willing to bet there are a number of factors that
    witnesses would say constrain and deter their testimony, but,
    you know what, we tolerate it because there are powerful
    countervailing interests on the other side. We decide that
    courtrooms should be made open to the public, so, therefore,
    the fact that a live audience could make someone nervous, that
    concern, is trumped by the desire to have open courtrooms, and
    I can go on down the line. There is always a countervailing
    public interest, and I wonder if this is not that kind of an
    example.
        Now I have no desire to see round-the-clock live coverage
    of Federal court. It would put most people to sleep, as all of
    us know who practice there, and that is not what we are talking
    about, as Mr. Graham pointed out. We are talking about giving
    the discretion to judges. And I have gotten to know a number of
    Federal judges over the years. Frankly, most of the ones I know
    would almost never grant it.
        The only times they would grant it would be an unusual
    case. I will give you an example: the Oklahoma City bombing
    trial. I suspect that that judge would have allowed his
    courtroom to be open and, frankly, I think the public would
    have gained from seeing that very serious event transpire and
    for us to have a living memory of it.
        I do not think it is enough for that kind of an event to
    simply be preserved by newspaper accounts or eyewitness
    accounts. That is the kind of seminal event that I think our
    country would benefit from seeing, and there will be other
    events like that. I want to hear some response from the panel
    on that point.
        But the second point that I would make, though, before
    that, is that it strikes me that the one branch of Government,
    ladies and gentlemen, that the public knows the least about is
    the judicial branch. They probably know all too much about us,
    the legislative branch, because they see us arguing
    repetitively at midnight. They see us making speeches to empty
    chambers and going on and on as if somebody somewhere cared.
    They get to hear us pontificate all the time.
        The executive branch they know a fair amount because even
    though there is a closed element to the executive branch--some
    of us are not happy about that--there is still a very active
    press out there that tries to tear those walls down, and
    newspapers tell us a lot about what the executive branch, the
    presidency do in this country.
        It has always struck me that the most mysterious branch is
    the judicial branch.
        Mr. Graham, you know this probably from your many years.
        For a lot of people, their image of what happens in a
    courtroom is ``Law and Order,'' the TV show. A lot of people's
    image of what happens in a courtroom, when I was growing up,
    was ``L.A. Law,'' and when I first started trying cases as a
    young assistant U.S. Attorney, juries would wonder why I could
    not do a closing statement in 1 minute like they do on TV, and
    they would wonder why my witnesses would not always break down
    the way the ones on TV would.
        And I wonder if we do not have a powerful interest in this
    society in opening up the judiciary, giving more people a
    chance to see it, not all of it, not all the time, but the
    seminal events, the unique events: the Pentagon papers trial in
    1971, Supreme Court arguments. I think there is a powerful
    interest in our demystifying this enormously important branch
    of Government, and I wonder if this bill would not take us a
    step in that direction.
        But I would like to hear some reaction to what I have said
    from the panel.
        Mr. Richter. Well, Mr. Davis, speaking on behalf of the
    Department briefly to your first point, I think you do frame
    the issue correctly that this is a question of whether it adds
    to justice or detracts from justice. Your points as far as
    other things that may make witnesses nervous are certainly
    valid ones, but those all flow from things with which we have
    no choice in the matter.
        The difference here is we have a choice as to whether
    cameras go in a courtroom or not, and so from the Department's
    perspective, really the question is as to whether that will add
    to the cause of justice or detract from the cause of justice.
    We believe, in weighing the equities of this case, that it will
    detract from the cause of justice.
        Mr. Davis. Any different perspective, Judge Gertner?
        Judge Gertner. Yes. I think you make a great point. I think
    the question is: Are witnesses more nervous in high-profile
    cases because of the presence of the camera or because the
    cases are a high-profile case?
        And I am not sure that one can disentangle one from the
    other, whether having a courtroom sort of filled to the rafters
    and with a courtroom sketch artist makes a particle of
    difference from having the inconspicuous camera behind you on
    the bench. I do not think that it makes a difference.
        The studies that people are pointing to are studies from
    1994. Between 1994 and now, there has been an explosion of
    information, as I said, through screens, and I am not sure that
    the public makes a difference, makes a distinction.
        Also, with respect to the cases that Mr. Richter cited, we
    care very much about child witnesses. We care very much about
    domestic abuse victims. That is what is going on in State
    court, not in Federal court, and it is in State court which
    accommodations have been made without problems. When you think
    about what we do in Federal court, we have the ability to
    control the proceedings even more.
        Mr. Davis. Mr. Chairman, would you allow some witness to
    comment on my demystification point, if anybody wants to pick
    that up?
        Mr. Delahunt. Without objection.
        Hearing none, we----
        Mr. Graham. I do, Mr. Davis. I say bravo to everything you
    said there.
        But it does seem that many of the objections that we have
    heard here and that you hear on this issue would be cured by
    the structure of this bill. The bill gives discretion to these
    judges, and these judges are used to making very complicated
    decisions and they can make proper decisions on complicated
    issues.
        So, if there is a problem perhaps that because of the
    nature of the case, these questions would come up, the judge
    just says, ``Well, we will not televise this trial.'' You
    hinted that you do not think a lot of judges will take you up
    on taking advantage of the discretion. Well, we will have to
    see, but it does mean that when these problems perhaps arise,
    the answer is the judge would just say, ``We will not televise
    this case.''
        Judge Tunheim. Mr. Davis, if I might. Mr. Chairman,
    Congressman Davis, very good points that you raise. One thing
    that we are quite concerned about is the inability to determine
    in advance where you are going to have problems with witnesses
    testifying with cameras. As you know from your career as a
    prosecutor, things do not go always as planned during a trial.
        Mr. Davis. I thought that was just me that happened to.
        Judge Tunheim. I think that happens to all of us on a
    regular basis.
        And trying to discern ahead of time what type of case would
    be appropriate for television coverage and what would not be is
    a very difficult chore.
        Mr. Delahunt. The gentleman from North Carolina, Mr. Coble?
        Mr. Coble. Mr. Chairman, by your own admission, you are not
    Chairman Conyers, but I will stipulate that you have presided
    very adeptly.
        Mr. Delahunt. Well, I appreciate that particular kudo.
    Coming from you----
        Mr. Coble. For what that is worth.
        Mr. Delahunt [continuing]. That is of real consequence.
        Mr. Coble. Good to have you----
        Mr. Delahunt. And I welcome the new Ranking Member to my
    left, Mr. Chabot.
        Mr. Coble. Good to have you all with us, and I will
    probably be brief.
        Your Honor, Judge Gertner, do you have any concern about
    courtroom security if proceedings in your courtroom were
    regularly televised?
        Judge Gertner. I would have some concerns, but I am not
    sure, again, that with the Internet that this makes a
    difference. In other words, my picture and my words are on the
    Internet. Every time I issue a decision, they, you know, trot
    out the last picture of me, which is actually not bad if they
    keep on going back in time. So I am not concerned in that
    regard.
        I think that my point is that we are already there in a
    world in which information is on the Internet. We have to
    account for and accommodate for that even in a closed
    courtroom. I do not think this will materially add to those
    concerns. That is all that my point was.
        Mr. Coble. Judge Tunheim and Mr. Richter, I was going to
    ask you all if your opposition would be assuaged if parties
    were allowed to move the court to prohibit television, but with
    the judge's discretion finally ultimately prevailing, I take it
    that your opposition would not be assuaged from your response.
        Judge Tunheim. Mr. Chairman, Representative Coble, you are
    correct. An interesting experience here is in my home state of
    Minnesota in which the State court does permit cameras in the
    courtroom, but any party can veto that so that any side can
    decide that they do not want to have cameras in and judges do
    not have the discretion then.
        Mr. Coble. Then that would prevail.
        Judge Tunheim. And then that would prevail, which has
    resulted in cameras never being in the courtroom because,
    typically, if one side feels that they want cameras, the other
    side would probably be suspicious and not want it.
        Mr. Coble. Ms. Cochran, do you see any avenue whereby the
    Federal courts could use this procedure to generate revenue?
        Ms. Cochran. Well, I think the tradition has been that the
    actions of Government are free to coverage by the news media,
    so I am afraid I do not see any opportunity for that.
        Mr. Coble. Ms. Swain, have photographs, recordings or
    televised proceedings from the courtroom been litigated and
    what has been the result if you know?
        Ms. Swain. I actually do not know.
        Mr. Coble. Does any of the panelists know?
        Mr. Richter?
        Mr. Richter. Let me see if I can address your question as I
    understand it. The issue, of course, of exposure through
    publicity is periodically litigated around the country, and
    this is one of the issues that, I guess, concerns us and should
    be of concern from the defense bar's perspective, and that is
    that in order to show that publicity during the course of a
    trial has prejudiced a defendant's rights, a defendant carries
    a very high burden on appeal of showing that prejudice and,
    oftentimes, many of the things that go along that may have, in
    fact, prejudiced the outcome against the defendant are not
    easily measurable.
        So, ultimately, very few of those cases are ever overturned
    on appeal as a result of publicity, and that is part of the
    concern that I think many in the defense bar have voiced in the
    past about legislation of this type.
        Mr. Coble. Mr. Graham, I think I have time for one more
    question. What would be, in your mind or your opinion, the
    greatest challenge for Court TV to cover Federal court
    proceedings?
        Mr. Graham. Well, we have covered Federal court
    proceedings, back during the experimental period, 1991 and the
    3 years following that. We covered about two dozen. And would
    you believe, Congressman, we covered a Federal antitrust case,
    and people's eyeballs were clouding up all across the country.
    Antitrust----
        Mr. Coble. That does tend to induce sleep.
        Mr. Graham. Antitrust lawyers practice being dull, and let
    me tell you that this was a dull process, and we did not have a
    lot of people that stuck with us for the several weeks that
    that trial lasted.
        So, yes, we have covered Federal cases. The experiment did
    not permit us to cover criminal cases. Under this bill, we
    could, and I think that is where the most interest would be.
        Mr. Coble. Thank you all for being with us.
        Thank you, Mr. Chairman.
        Mr. Delahunt. Before I go to Mr. Gallegly, I am going to
    claim my own 5 minutes at this point.
        And I noted in response to a question by Mr. Davis--I think
    it was you, Mr. Richter, that responded--that it is the
    position of the Department of Justice that cameras detract from
    the cause of justice. Now it is my understanding that every
    single State has some rule, some like Massachusetts which I
    would describe as an expansive rule, one that I am familiar
    with.
        Why don't I ask the entire panel is it your position that
    justice has been demeaned in the States since the advent of
    cameras in the courts of general jurisdiction and appellate
    courts in the various States?
        Judge Gertner?
        Judge Gertner. Well, you know, the last time I spoke in
    favor of this bill, also on the panel was Judge Hiller Zobel,
    who had just come off handling the case of Commonwealth v.
    Louise Woodward, which was the Newton Nanny case in which he
    had international press, national press, and he had cameras.
        He talked about--this goes to Representative Davis' point
    also--how good it was to present this case, to be able to show
    the wheels of justice on television and to demystify the State
    judiciary in that case.
        Massachusetts has a very expansive rule, as you noted. We
    do not hear of any problems.
        Mr. Delahunt. Judge, is there a crisis in the State courts
    now of detracting, to use Mr. Richter's word, from justice? Has
    there been a clamor among the various State bars that you are
    aware of?
        Judge Gertner. I think at this point what has happened as
    that as cameras have gotten more and more, as I said,
    inconspicuous, as people got more comfortable with them, the
    grandstanding problem, if it existed at all, did not exist, and
    courts and judges learned how to deal with it.
        Some of the problems that Mr. Richter raises also are
    endemic to 24/7 cable news coverage. The problem with pretrial
    publicity is not necessarily going to be enhanced with cameras.
    In fact, one argument is that having the real deal in
    television is better than having the caricature.
        Mr. Delahunt. Well, I would note also that I think it was
    Mr. Richter that noted that one of the solutions is press
    conferences on the steps of the courthouse. You know, some
    might describe that as the ultimate spin zone, and I would
    suggest that, you know, getting this information unfiltered to
    the American public gives them a much more realistic
    understanding of the process that is embraced in having an
    independent judiciary as opposed to simply lawyers standing
    out, putting the facts as they often do in a very favorable
    light to their client, whomever that client may be.
        Judge Tunheim?
        Judge Tunheim. You raise a very good question, Mr.
    Chairman, and----
        Mr. Delahunt. Is there a problem in the States now? Are you
    concerned about those State courts going out there detracting
    from justice?
        Judge Tunheim. Generally no. I think that there have been
    trials that have not reflected well on the State courts
    systems. The O.J. Simpson trial comes to mind. And, secondly, I
    think there is a concern about the 30-second sound bite from
    inside the courtroom not reflecting well on the entire
    proceedings.
        Mr. Delahunt. The 30-second sound bite? I am unfamiliar
    with it within a courtroom. I am very familiar with it on, you
    know, the cable networks, particularly in the aftermath of the
    trial as lawyers trot out with their clients and give press
    conferences.
        Judge Tunheim, in your written testimony, you make
    reference to the current policy of the Administrative Office of
    the U.S. Courts with regard to appellate courts permitting
    broadcasts of their proceedings. Now the Circuits as a whole
    already have the ability to permit the televising of
    proceedings, to set policy, to decide how those proceedings are
    televised, and yet you have a problem with individual appellate
    judges making those same decisions. Are the judges better when
    they are operating collectively as opposed to individually?
        Judge Tunheim. Well, Mr. Chairman----
        Mr. Delahunt. Do we have more confidence when they are
    together as opposed to when they are making those individual--
    --
        Judge Tunheim. The Judicial Conference policy makes it an
    issue for the entire court to determine. If the court, pursuant
    to guidelines established by that court, wishes to open up
    appellate court hearings to cameras, they can do that, and two
    circuits, as you have noted, have done that, but it is pursuant
    to guidelines established by the entire court, and that is the
    rationale for that position.
        Mr. Delahunt. Do you feel that you have the capacity and
    the discretion to circumscribe appropriate rules----
        Judge Tunheim. Well----
        Mr. Delahunt [continuing]. You know, in the capacity of an
    appellate judge?
        Judge Tunheim. I may have the capacity, but perhaps not the
    discretion.
        Mr. Delahunt. Well, that is what this bill would do. It
    would provide you the discretion, and I, for one, have full
    confidence in the discretion that you would exercise.
        And with that, let me turn to my friend and colleague, Mr.
    Gallegly of California.
        Mr. Gallegly. Thank you, Mr. Chairman.
        I appreciate your testimony today, and I think you might
    find it a little unique because I happen to be the first
    nonlawyer in history to serve on the Judiciary Committee. So I
    have a little different perspective, and unique to most
    hearings, as a Member of Congress, I have more questions than
    answers, okay. So I hope you can understand and respect that.
        And listening to Ms. Swain, Ms. Cochran and Mr. Graham, I
    understand and completely understand your advocacy, and I know
    that Judge Gartner comes from a little different perspective
    with her advocacy than you do, and I respect that.
        Mr. Graham, I have watched Court TV as a consumer and as a
    viewer for many years, enjoy it. I find it not only
    entertaining, but extremely educational. I genuinely say that
    as a consumer.
        I do not have the benefit that my colleagues have in seeing
    firsthand in the trenches what happens in the courtroom and
    understanding the depth of whether this is competitive. It
    appears to me, though, that our principal objective as Members
    of this Committee is not to be an advocate for education in
    this arena. We certainly have an opportunity to be an advocate
    for education in other areas.
        But our principal objective here, I would think, is making
    sure that we do not do anything that compromises the
    administration of justice, and I do not know that this would. I
    do not know if anyone could give me an example--perhaps Judge
    Gertner could--as to whether or not it could contribute to the
    administration of justice.
        I keep going back to as a consumer and as a viewer--I think
    probably most Americans that are not lawyers and there are more
    not lawyers--it hard to believe that when you live in this
    town--than there are just the rank-and-file people across the
    country--the O.J. trial. Perhaps this is not a classic example.
        And, Ms. Cochran, you know, in your testimony, you said
    that you believed that there would not be able infringement on
    the process of justice.
        Mr. Graham, you said that you are sure that this would not
    have a harmful effect on the administration of justice.
        First of all, Ms. Cochran, I am sure you followed the O.J.
    trial. I do not know anyone that did not in some degree or
    another. Do you feel that that was a good example of the effect
    that cameras could have on the proceedings?
        Ms. Cochran. I believe that the O.J. trial, whatever
    happened and whatever one thinks about how that process was
    carried out, that the most objective observer of what was
    taking place was the very small camera in the courtroom, that
    all of the other things that happened either happened because
    of the way the judge acted or the way the lawyers acted or it
    happened because of what happened outside of the courtroom on
    the courthouse steps.
        And so even though the O.J. trial is given as an example
    and the camera is blamed, the camera in the courtroom actually
    gave the public the most accurate picture of what was
    transpiring, and the public could make up their own mind, and
    members of the public made up their minds in vastly different
    ways about how justice was served.
        A few years later, there was a case in New York involving
    an immigrant named Diallo, and the New York police officers
    were on trial, and New York is not a State where cameras are
    readily available. But the Supreme Court said that cameras
    would be allowed in that court, and there are those who believe
    that because cameras were present that the verdict, when it
    came down, was more readily accepted because people could see
    for themselves in a very controversial and inflammatory case
    that justice had been done.
        Mr. Gallegly. I know I am about to run out of time, but I
    would hope that perhaps, Ms. Swain, you could join in--or Ms.
    Cochran or Mr. Graham--and just give me a very honest
    assessment as to whether, in your opinion, your objective
    opinion--and perhaps Judge Gertner as well--do you believe that
    the cameras in the courtroom had any effect on the way Judge
    Ito presided over the case or either Johnny Cochran or Mr.
    Shapiro? Do you think the cameras had any effect on the way the
    case was presented and, more importantly, the way it was
    presided over?
        Mr. Graham. Well, I was there, Congressman, and I saw this
    firsthand. It is impossible to know what was going on in the
    minds of the participants that you discuss there, but I agree
    with Ms. Cochran that what we saw basically was a judge who did
    not control his courtroom. Some very feisty high-paid lawyers,
    defense lawyers, some racial overtones of the case that the
    judge should never have permitted to come out in this case. It
    was not a race case----
        Mr. Gallegly. Did he have a tougher job because of the
    cameras or not?
        Mr. Graham. I do not know. You know, I ran into Judge Ito
    recently out there in California. I was at a judicial meeting,
    and I said, ``How are things going with you?'' and he said,
    ``You know, I still allow cameras in my courtroom,'' and he
    says, ``If you want to bring your cameras back out, you can
    televise a trial in that courtroom.''
        Very briefly, as you well know, after the O.J. case, the
    judiciary in California did a thorough study on just these
    topics we are talking about, and they concluded that cameras in
    the courtrooms of California were a beneficial thing and that
    it should stay.
        And in that same regard, Mr. Delahunt, part of your
    question, in the States that have cameras in courts, are they
    perceived as being harmful, what we have seen in Court TV is
    when we launched Court TV in 1991, about half the States
    permitted cameras in the trial courts, and now that figure is
    two-thirds. It has gone from a half to two-thirds in 16 years.
    What has happened is that the word has gone out from the States
    where they have cameras that it is a good thing, and others
    have copied that.
        Mr. Gallegly. Mr. Chairman, I know the red light is on, but
    it is not often that we have Ms. Swain on the other end of the
    microphone. [Laughter.]
        So I wonder if the Committee would indulge me in asking her
    to give us a response to the same question about the way the--
    --
        Mr. Delahunt. Without objection, the gentleman will have
    another 30 seconds.
        Mr. Gallegly [continuing]. Trial was presided over.
        Ms. Swain. You know, Mr. Gallegly, like you, I am, I think,
    the only nonlawyer on this panel. So I feel as though my
    comments would only be as an observer, rather than as a
    professional observer of this, as a citizen. So I think I will
    defer on being able to answer anything that is of use to you.
        I might say for the few members of the panel that have been
    around Washington as long as I have, when the early debates
    were happening over whether or not the Congress should be
    televised and, 7 years later, that the Senate should be
    televised, the arguments sound very similar to me today.
    Technology of any sort, if you look through social scientists'
    eyes, is always disruptive, but then the institution adapts,
    and we believe the same thing would happen in this case.
        Mr. Delahunt. Mr. Chabot?
        Mr. Gallegly. Thank you, Mr. Chairman. Thank you for your
    indulgence.
        Mr. Chabot. Thank you very much, Mr. Chairman.
        First of all, let me apologize to the panel. There are two
    bills that are on the floor today. One of them has to do with
    flood insurance, the other one has to do with the Small
    Business Investment Act, and I am the Ranking Member of the
    Small Business Committee, so I had to go back and deal with a
    whole bunch of things relative to that.
        So I heard the first four witnesses here personally. I
    agreed with two of them. I disagreed with two of them, although
    I think they all make wonderful points. But I did not hear
    these three witnesses here. So this may be unfair, but could I
    ask each one of you just in a sentence or two give me your most
    persuasive argument or your most persuasive point for your
    point of view, whatever that might be?
        And I have a pretty good idea what that point is, or at
    least not what the point is, but what the point of view is.
        So, Ms. Swain, if we could start with you.
        Ms. Swain. Certainly. Briefly, I think actually Judge
    Gertner made the point well on our behalf, is that we are so
    far down the road really with so many Federal courts allowing
    audiotapes, where they do not allow cameras, and on same-day
    release of the audiotapes, we are putting them on television in
    their entirety with photographs and with graphics. So we are
    this far along, and the republic has stood as we have done
    this, and we think it will continue to if cameras are added.
        Mr. Chabot. Okay. Thank you. It has even stood under
    Democratic control with the House and Senate for the first time
    in 12 years. So I do not know how long it will stand, but----
        Ms. Cochran?
        Ms. Cochran. Yes. Our position is that our members are the
    people who are making cameras work in courts at the State level
    and that the objections that we hear could just as easily apply
    to what transpires in a State procedure as in a Federal
    procedure, that we have made them work, we know of no instance
    in which the outcome has been reversed because of the presence
    of a camera, and we believe we can make it work at the Federal
    level as well.
        Mr. Chabot. Thank you very much.
        And Mr. Graham?
        Mr. Graham. What has happened here is that in the States
    where cameras are permitted in the trials, this is a no-
    brainer, this is a nonissue because everyone knows that the
    system works, and it is not harmful.
        As I mentioned in my earlier testimony, no one in no case
    that we know of, certainly no case that has been before Court
    TV, but in no other case in the last 16 years has a case been
    overturned or has a trial judge held that anyone's rights were
    violated because of the presence of the camera, and our feeling
    is that if it is working, then it should be in the Federal
    courts which are so much more important in general than the
    State courts are.
        Mr. Chabot. Thank you very much, Mr. Graham.
        Judge Gertner, if I could go to you. Our colleague, Elton
    Gallegly, was talking about the administration of justice in
    his questions and made the point about detracting. Could you
    give an example of it contributing to the administration of
    justice?
        You made a strong point about trials, in the Supreme
    Court's own words, being a public event, and it seemed to me
    that that might be a pretty good argument where they are
    contributing to the administration of justice, cameras would
    be. Would you want to comment on that?
        Judge Gertner. First is the O.J. Simpson paradigm, which I
    think would not happen again today and was idiosyncratic to the
    judge and the lawyers in that case. But even in the O.J.
    Simpson case, there was a huge number of people who
    distinguished between ``I think he is probably guilty, but not
    beyond a reasonable doubt.'' That was stunning to me as a
    defense lawyer because that was a distinction, in fact, that
    you have spent your life trying to identify, and it was
    terribly important that people identified that.
        The case in which it contributed to the administration of
    justice, I think, was the Woodward case, the Newton Nanny case,
    which had gavel-to-gavel coverage. The judge would actually
    talk to the foreign press at the end of every day explaining
    what the proceedings were. He understood he had a public event,
    and when the verdict came down, the public understood how that
    had happened.
        I have seen so many times that I would be presiding over a
    trial as a judge and the press would be there for one case, one
    party's side and not the other, and then the verdict would come
    down reflecting the defendant's side or the side that they had
    simply not been a participant of, and there would be this
    extraordinary outcry about how did it happen. Well, if you had
    seen the proceedings, you would have understood how it
    happened, and it seems to me that that is where we want to put
    the public.
        Mr. Chabot. Mr. Chairman, I am almost out of time. Just let
    me make a couple of real quick points in the time I have. Can I
    ask unanimous consent for 1 minute to finish?
        Mr. Delahunt. Thirty seconds. I am sensing a revolt among--
    --
        Mr. Chabot. Okay.
        Mr. Delahunt [continuing]. The other Members.
        Mr. Chabot. Real quick. Thank you. Just a couple of quick
    points.
        First of all, I think the point has been made very, very
    strongly that, you know, the Federal courts would basically
    just be keeping up with what has happened already in the
    experience of the States, and if we had seen it been a disaster
    at the States, I would not have proposed this, Mr. Delahunt
    would not be for it. But, clearly, we have 50 States out there
    that are doing some form of cameras in the courtroom, and as
    was mentioned, the republic still stands.
        Judge, with all due respect, I would just make the point
    that if we were telling you you had to do it, you know, we are
    separate branches of Government, co-equals, et cetera, ``You
    have to do it. You have to do it,'' I could understand the
    objection, you know, even though I really do think they ought
    to be open. But we are giving judges the discretion to do it. A
    judge, if he does not want to do it in his courtroom, does not
    have to, she does not have to, and so that is why I am just
    surprised at the level of anxiety on the part of the judges,
    but I know it is there.
        And then finally just on the point of the witnesses being
    afraid of cameras and things, I might have even thought that
    maybe 20 years ago. But there are many houses in America now
    where the video cameras are so common. You know, people are
    always getting videotaped. They are on camera all the time. It
    has become almost second nature, and I just do not think it is
    as scary or hostile an experience as it once was. So those are
    the points I wanted to make.
        Mr. Delahunt. Let me go to a Member who is not afraid of a
    camera, and that is the former Attorney General of the State of
    California, my good friend----
        Mr. Lungren. If we threw out the cameras, we would not be
    asking for extra time. [Laughter.]
        Since everybody is talking about the O.J. Simpson case, do
    you remember what they said there? ``If it does not fit, you
    must acquit.''
        I have not heard a single argument from those who oppose
    this that is relevant to not allowing cameras in appellate
    courts or the United States Supreme Court. Everything you have
    said is the impact on witnesses, impact on parties, and that,
    for the life of me, underscores the silliness of the argument
    that somehow the American people do not have a right to see
    Government in action at the highest level.
        And while I disagree with Mr. Graham that somehow the
    Federal courts are the most important court, which you just
    said--I disagree with that very strongly--the fact of the
    matter is the Supreme Court does have a greater affect because
    of its ability to finally determine interpretations of the
    Constitution. But I can see nothing that has been said here
    that in any way would suggest that somehow the presence of a
    camera in the courtroom would unduly influence those who are on
    the Supreme Court or those who are on the appellate courts.
        But now getting to the question of the trial courts, man,
    the only image I have in my mind when I hear the testimony of
    those who oppose this is we are talking about the Federal
    Wizard of Oz. We sort of know what is being said, but we cannot
    dare see the wizard because somehow that is going to unduly
    influence us, and I almost wonder if you want us to say that
    jurors should have to close their eyes when they are sitting in
    the jury box because as long as they hear it, it is okay, but
    if they see it, they are unduly influenced.
        One member of the Supreme Court many years ago talked about
    the States of the union being the crucibles of experimentation,
    and so, Judge Tunheim, we have had the crucibles of
    experimentation now for how many years with the courts being
    televised in the most gut-wrenching cases because that is the
    ones the States have. Most of the violent crime cases are at
    the State level, not the Federal level. Most of those cases
    dealing with children's rights and domestic relationships are
    State, not Federal.
        I would just ask you very directly something that was only
    hinted at a moment ago. Are you telling us that we have had a
    substantial diminution of the rights of defendants and parties
    in our courts at the State level since cameras have been
    allowed?
        Judge Tunheim. Mr. Chairman, Congressman Lungren, of course
    not. I am not saying that. I think what I am saying is it is
    very difficult to quantify and very hard to say what the impact
    of cameras has been in courts. Defendants have raised these
    issues on appeal. As it has been properly stated, it is rare
    that a case has been overturned. But how do you measure and how
    do you demonstrate that your rights have been impacted by the
    presence of cameras in a particular----
        Mr. Lungren. But I was asking for your opinion----
        Judge Tunheim. It is very difficult.
        Mr. Lungren [continuing]. As to whether you think there has
    been a diminution of the protection of rights of individuals in
    the courtrooms that have been exposed to cameras because your
    premise is that that is necessarily what will follow if this
    bill becomes law.
        Judge Tunheim. Well, I think what I am saying, Congressman
    Lungren, is that there is a significant risk of it, and I do
    not know how we can quantify what has happened in the State
    courts over the past 20 years when cameras have been there. It
    is very difficult to determine how many rights have been
    impacted by the cameras. It is a concern.
        Mr. Lungren. Well, I will just give you an analogy of your
    argument. When I was Attorney General of California, I helped
    author Megan's Law. The same arguments I am hearing from you
    are what I heard then, because under the law for a long period
    of time, people who registered as sex offenders was public
    information, except that the public could not get to it. They
    were shielded from it. It was difficult to even try and find
    it.
        And when I first came forward with the idea, it was I was
    going to deprive these folks, even though they had been
    convicted, of their other constitutional rights and we could
    not allow the public to handle this information, which is the
    same argument I hear here.
        And you say to us, look, these are public trials because
    people are allowed to be in here. And maybe I am just a little
    irritated about this, but as I grew up as a kid, I knew I did
    not have a chance to come to Washington, D.C., and I could not
    get in the galleries. One of the great things about C-SPAN is
    it opened it up to the entire United States.
        What is the craziness that says, yes, the Supreme Court is
    public so long as you can be one of the few people that can get
    into the few seats that are there, and so long as you can stand
    in line and so long as you can get here? I mean, what does
    public mean to you that says that only those selected people
    that are able to get there can do it, number one.
        And, number two, we talk about demeanor of witnesses. I
    like to eyeball witnesses. I like to see what they say. What is
    the matter with the public eyeballing the witnesses through the
    TV cameras?
        Judge Tunheim. Mr. Chairman, Congressman Lungren, I think
    what we are trying to say is that it is the potential impact on
    the testimony of the witness of having a camera staring them in
    the face.
        Mr. Lungren. So you have the discretion of the judge to
    make that determination----
        Judge Tunheim. You do----
        Mr. Lungren [continuing]. Under this bill.
        Judge Tunheim. But your discretion is at the beginning of
    the trial whether or not to have the proceedings open or not,
    and, as I indicated earlier, things change during the course of
    the trial.
        I have to also remind the Members that transcripts are
    fully available. The courtroom doors are open. The briefs,
    every filing in court is available through the Internet. We
    have made these proceedings open.
        The concern is about how the cameras affect the testimony
    of the witnesses, their demeanor as reviewed by the jury, and
    the impact on the truth-finding function of the trial court.
        Mr. Lungren. I appreciate that. The only point I would make
    is we have tested that in all the other States in the union.
    The crucibles of democracy's experimentation has taken place.
    With all due respect to Mr. Graham, perhaps the Federal courts
    could learn from the State courts even though some may think
    the Federal courts are most important.
        Mr. Delahunt. I would associate myself with the final
    conclusion and remarks of the gentleman from California.
        I understand, Judge Tunheim, that you have to leave at 3.
    Is that correct?
        Judge Tunheim. Mr. Chairman, I should leave. I need to get
    to a family funeral tomorrow morning----
        Mr. Delahunt. Sure. Then this would be an appropriate----
        Judge Tunheim [continuing]. In Congressman Lungren's home
    State.
        Mr. Delahunt. So this would be an appropriate time for you
    before I call on the gentleman from Florida.
        Mr. Keller?
        Judge Tunheim. Thank you very much, Mr. Chair.
        Mr. Keller. Thank you, Mr. Chairman.
        And as I listen to the witnesses, I am very impressed with
    all of you on both sides. To me, this turns on two central
    issues. First, we have to weigh the first amendment right of
    the public to view public trials versus the concerns of the
    Judicial Conference that a witness on TV might pontificate his
    personal views or promote his commercial interests.
        Are we really worried about a witness saying, ``I will tell
    you whether the traffic light was red or green, but, first, let
    me just say that we should stop global warming and shop at
    Joe's Hardware Store?'' I think if that is the true analysis,
    you have to come down on the side of the first amendment here.
        Now the second issue then becomes: Are Federal judges wise
    enough to exercise their discretion about saying yes or no to
    having cameras in the courtroom? I have to think they are smart
    enough.
        Let me give you an example. Let us take a Federal judge
    sitting in the Southern District of New York. Osama bin Laden
    has already been criminally indicted by a Federal grand jury in
    New York for terrorism-related activity.
        If he is captured somewhere in the hills of Pakistan and
    brought to New York City, in light of the high-profile nature
    of his crime and its impact on thousands of people, don't you
    think that it would be best to have a public trial where all of
    us can see it on TV, especially in light of all the kooky
    conspiracy theories relating to 9/11, and we can see ourselves
    what the evidence is with his various activities?
        On the other hand, if I am that same Federal judge sitting
    in the Southern District of New York, and I am presiding over
    the prosecution of a mid-level Mafia thug who has been charged
    with extortion, and I see that the witnesses include many
    undercover FBI agents, as well as lots of paid informants and
    fearful shopkeepers who are going to be witnesses for the
    prosecution, I can tell you I would probably exercise my
    discretion to say ``no cameras'' in that circumstance. So I
    have to believe that the judges are smart enough to make that
    call.
        Mr. Graham, let me start with you. As a fellow Vanderbilt
    Law School graduate, you have great credibility with me here.
    Let me have you address some of the concerns. You have been
    covering State courts and Federal courts for a long time raised
    by the Judicial Conference. In all your years, have you seen a
    big problem in these televised State court trials about
    witnesses getting up there and promoting their own commercial
    interests?
        Mr. Graham. No, I have never seen that happen. You know,
    when he mentioned that, I thought, well, we really are
    wandering far afield here on our objection because I do not
    think that would ever really happen in the real world.
        Mr. Keller. Have you ever seen a big problem at these
    televised State court proceedings about witnesses getting up
    there and pontificating their personal views about various
    political issues or other things?
        Mr. Graham. Well, I have seen them try, but I have seen
    them put down very quickly by the presiding judge.
        Mr. Keller. And, next, let me talk to you about the issue
    of witnesses being nervous. Obviously, many State court trials
    are right there on national TV. O.J. is a good example. Is
    there any evidence that somehow a witness would be more extra
    nervous in a Federal court televised trial than in a State
    court nationally televised trial?
        Mr. Graham. I cannot see what the difference would be.
        Mr. Keller. Now isn't it true that right now 43 States
    already allow television for civil court proceedings in State
    court?
        Mr. Graham. State. Some of them criminal as well.
        Mr. Keller. And I believe 39 States allow TV coverage in
    criminal cases, 43 in civil cases. Is that about right?
        Mr. Graham. I have seen those figures, yes. I believe they
    are accurate.
        Mr. Keller. Okay. Now one of the things Mr. Tunheim said
    before he left was that, ``Well, in a Federal court, we are
    dealing with people's livelihoods and money, and liberty is at
    stake.'' In a State court action in a criminal prosecution,
    isn't someone's liberty at stake?
        Mr. Graham. Certainly.
        Mr. Keller. And in a State court suit when you have a civil
    action, isn't money often at stake?
        Mr. Graham. Yes, it is.
        Mr. Keller. Okay. Let me get my remaining person against
    the--our prosecutor here. Sorry about that.
        Mr. Richter, let me get your side of this. Do you believe
    that Federal judges are wise enough to exercise their
    discretion about whether to say yes or no in terms of having
    cameras in the courtroom?
        Mr. Richter. Thank you, Congressman.
        I would direct you to a decision in which this issue was
    taken up before the 11th Circuit Court of Appeals a number of
    years back and the 11th Circuit Court of Appeals itself
    addressed really that question, and what it said is that it
    came down on the side of a per se rule, one blanket rule, for
    the following reason, as opposed to a case-by-case approach as
    presumably would occur with this legislation, and that is
    because of the difficulty that a judge has--and this is the
    court noting this--will have on detecting all the potential
    adverse impacts that flow from a camera. And let me just
    identify a few of those that it is likely a judge would be
    unable to really identify.
        Mr. Keller. Let me just have you be brief, and I will tell
    you why. I would be happy to hear it, but we are going to have
    votes here in a second, and I want to get to our other judge
    and ask her some questions. So, if you could wrap that up kind
    of in a summary form.
        Mr. Richter. Well, secondly, I think what we are dealing
    with here is a balancing between the benefits and the potential
    harms that are out there. I think all the panelists agree that
    there are potential harms out there. Where we disagree, I
    think, is how heavily we weigh the potential benefits here.
        Now what the 11th Circuit said in that is because the
    public and media already have full access at some point to a
    degree, the down sides did not outweigh the up sides of doing
    that, and I think that is where the department comes down on
    that.
        Mr. Keller. Thank you.
        Mr. Chairman, I will yield back my time.
        Mr. Delahunt. Thank you.
        And let me now go to a former jurist, an eminent Member of
    the Committee, Mr. Gohmert from Texas.
        Mr. Gohmert. Thank you, Mr. Chairman.
        And thank you, members of the panel. I really appreciate
    your being here.
        Fred, you do not remember me, but in the early days of
    Court TV, you had commentary on a case of mine.
        But let me comment very briefly, and I would ask if in my
    questions I not be restricted by a 5-minute rule, but by the
    rule of the number of words that the gentleman from
    Massachusetts used. I think we will come closer to being equal.
    I cannot talk that fast.
        Mr. Delahunt. So ordered. [Laughter.]
        Mr. Gohmert. And I realize Judge Tunheim had to leave, but
    let me address a couple of things, and I am talking from
    personal experience here.
        He said that it could change the activity or conduct in the
    courtroom. I can tell you this. It could make them better
    because you do not have lawyers and even judges that want to
    come face that television camera unprepared, and if there is
    anything that frustrates judges, it is having lawyers coming in
    the courtroom unprepared.
        They know they are going to be on TV, they would come in
    ready, and then it is up to the judge to control the conduct in
    the courtroom.
        One other case, our chairman of the Judicial Conference had
    referenced the Estes case and a quote from Judge Clark. He was
    referencing Billy Sol Estes, tried in the early 1960's in the
    7th District Courtroom in Tyler, Texas. That is the courtroom
    where I presided 30 years after the trial.
        As it happens, just this week, the local prosecutor passed
    away, a fine man, Democrat, good friend of mine, Weldon
    Holcomb. Weldon told me that during the course of that trial,
    the judge had no rules as to the conduct of the media. They
    were everywhere. He said at times, there were cameramen that
    would walk up behind the judge, photographing, taking pictures
    around, that they just had free reign.
        I can tell you I allowed a camera in the courtroom, and I
    never had a problem because it was very clear that in order to
    bring a camera in the courtroom or to get footage from that
    camera, as a member of the media, you had to sign a motion
    seeking permission to have a camera in the courtroom or to get
    footage in the courtroom.
        Now the case I tried on Court TV that you all came in at
    the last minute and wanted to cover, actually, I asked, ``Why
    are you interested in this case? It is going to be a long case.
    It has been tried once. We know it is going to be a long
    case.'' And I was told by the Court TV personnel, ``Well,
    initially, we were not interested in televising it, but O.J.'s
    case just got moved to the spring, so you will be a great
    filler.''
        But anyway, with the order allowing camera in the courtroom
    or footage, it allowed me to reach my control outside the
    courtroom. I was able to control the sanctity of the
    proceedings like a judge cannot do if they do not have that
    leverage because, let's face it, whether you are in Congress or
    you are in the courtroom, it is all about leverage.
        And so we had the most interesting case, from what they
    tell me, in Smith County history. The county was evenly
    divided. We had three TV stations that wanted to cover it. They
    all had to sign the motion. Court TV had to sign the motion. It
    allowed me to control who was interviewed that was involved in
    the case.
        It allowed me to prevent, not just in the courtroom, but
    outside the courtroom until that case was over, any photography
    of any juror or any witness that I did not allow because if
    anyone violated that motion that they signed and my order that
    followed, they were subject to contempt, and they were subject
    to sanctions. I controlled the media coverage for my trial.
        Now Judge Ito seemed like a great guy, seemed like a really
    smart kind of guy I would love to hang around with, but he did
    not control the courtroom, and when I saw him putting
    hourglasses that he was getting through the mail or from people
    up on his bench, I knew he was concerned and the cameras were a
    distraction to him. That was none of his business.
        And as I recall, he said, ``Now the jurors and all the
    parties have heard this tape of Mark Fuhrman, but since the
    public has a right to know, we are going to sit here and we are
    going to listen to it on camera,'' then I knew he had lost his
    way. That was none of his business. His business was conducting
    the trial and making sure they had a fair verdict. He could
    have handed that out. So we know we had a judge lose his way a
    little bit in that.
        But the judge can ensure that the truth comes out, and when
    it comes to the allegation that a witness may be more nervous,
    maybe they are, maybe they are not. I can tell you I think
    nervousness is a good thing in a witness. It makes potential
    inaccuracies come to the light and easier to observe. Perhaps
    you have seen that.
        Also, the judge has said it may make it more difficult for
    getting witnesses to testify, and I have experienced that. I am
    sure we all have. There is a thing called a subpoena and
    officers with handcuffs, and just like I found if people cannot
    shut their mouth in the courtroom, duct tape is very helpful, I
    also found that if people are not willing to come to court and
    they are reluctant to testify, officers with handcuffs and guns
    are very helpful. So I do not see that as being all that
    helpful as an assertion.
        The Federal judges may say that they are not paid
    adequately to deal with the media, and I would submit they are
    not paid adequately to do the job they are doing. When you can
    have first year law students or people come out of the first
    year of law school making more than judges, then it is time
    that we gave them a raise, and I was hopeful we were going to
    get that filed this week, as I understand, maybe next week to
    give them a raise, and then they will feel better about dealing
    with this.
        But I would submit to the Chairman and to other Members
    seeking input after the hearing from our witnesses, I would
    like to tweak this bill a little bit to make sure that judges
    have that power to require a motion and that they have the
    power to fashion sanctions. But that is the one thing I have
    never heard anybody on Court TV or anyone else say. It gives
    the judge so much more control.
        When my predecessor tried that case that ended up on Court
    TV for 10 weeks, he did not allow a camera in the courtroom.
    They chased witnesses. They chased jurors. He had no control
    outside his courtroom. When I did it, I had total control.
        And I would also add, it has advantages, too. We had a
    witness in a hearing outside the presence of the jury that was
    supposed to turn over all of his materials that he had used in
    formulating his opinion, his expert opinion, and the judge from
    Minnesota, as I recall, after we broke for lunch, gave the
    defense time to review what had been provided. After lunch, we
    came back and the prosecutor and the defense attorney said,
    ``Judge, we need to see you in chambers.''
        The defense attorney's office had gotten a call, as I
    recall, from somebody from Minnesota who said they believed as
    the witness was turning over this big stack of documents and a
    computer disc that he may have palmed a computer disc and put
    it in his pocket, and they got that information to his office
    in Tyler. They passed it on to him.
        They approached me. We got with the Court TV editing room,
    watched an instant replay of the witness, and saw that--nobody
    had seen it--he palmed a disc, took it and stuck it in his
    pocket, and it changed a little bit of the outcome of how that
    played.
        But there are all kinds of advantages, but the judge must
    control what they do.
        Mr. Delahunt. Thank you, Detective Gohmert.
        Mr. Gohmert. Well---- [Laughter.]
        Mr. Delahunt. Appreciate that.
        Mr. Gohmert. Well, I would ask the Chairman would you be
    open to some little tweaking to allow----
        Mr. Delahunt. I mean, I think, you know, Mr. Chabot has
    indicated that accommodations have been made in the past, and
    as long as the core purpose of the proposal remains intact, I
    think we would welcome that discussion among Members of the
    Committee.
        Mr. Gohmert. Thank you.
        And thank you, witnesses.
        I know I did not ask any questions, but I had a lot to
    testify about. So I appreciate it.
        Mr. Delahunt. Well, we are glad you were able to get it off
    your chest. [Laughter.]
        You know, we are at the end of this round, and I would ask
    if any of the Members wish to make further inquiry. I would be
    pleased to grant them as much time as they may consume and as
    much time as the panel is willing to indulge us.
        Mr. Lungren. Mr. Chairman?
        Mr. Delahunt. Mr. Lungren?
        Mr. Lungren. If I could just ask Mr. Richter a couple of
    questions.
        In your testimony, you outlined some serious concerns, and
    so I would just like to ask you if the way the bill is written,
    which allows the discretion of the judge, would not take care
    of that. You are saying, ``We are concerned with the spillover
    effects from cases where co-conspirators are tried
    separately.'' Wouldn't that be a case in which the prosecutor
    would ask that perhaps that not be televised for that very
    purpose?
        Mr. Richter. It certainly could be, yes.
        Mr. Lungren. I mean, wouldn't you think the judges would be
    sensitive to that as they are to other requests to be made when
    you have those kinds of considerations?
        Mr. Richter. Sure. That is clearly something that if the
    issue was flagged and put before the judge, that we would hope
    a judge would come down and take that in consideration. The
    problem we see, Congressman, is that there are many other harms
    in addition to that that are not necessarily so easily
    quantified.
        Mr. Lungren. Well, let me ask you about a couple others.
    You say that, ``The bill fails to ensure that the attorney-
    client conversations and confidences are protected.'' Talking
    about what former Judge Gohmert said, wouldn't that be
    something that could be controlled by the judge?
        Mr. Richter. It could be.
        Mr. Lungren. And let me ask those that have actually done
    this in State cases, have you run into a problem where there
    has been a complaint that attorney-client conversations and
    confidences have been picked up and broadcast?
        Mr. Graham. At Court TV, we take steps on the front end to
    prevent that so that it does not happen. In the wiring of the
    courtroom and the placement of the microphones, we have in mind
    the fact that we do not want to pick up any privileged
    conversation, and, to my knowledge, it has not happened.
        Mr. Lungren. What about conversations between the judge and
    the lawyers, sidebar?
        Mr. Graham. Well, the same thing occurs, and judges are
    very, very vigilant about sidebar conversations, as I am sure
    you know, and, generally speaking, the judges see to it--they
    really do not have to with Court TV because we see to it--in
    case the broadcaster does not have experience in it, that they
    just do not pick up sidebar conversations.
        Mr. Lungren. Mr. Richter----
        Mr. Graham. Some----
        Mr. Delahunt. If the gentleman would yield for a moment?
        Mr. Lungren. Yes.
        Mr. Delahunt. You know, let me opine, put forth a premise.
    I think what we are discussing here is whether we have
    confidence in both the judgment and the integrity of the
    individual participants in the judicial process. Mr. Richter
    indicated that it was an 11th Circuit case where--and maybe I
    am mischaracterizing his words--it was almost as if the court--
    and I did not get the name of the decision--wanted to alleviate
    the burden of discretion from individual judges.
        I mean, you know, if that is the premise of our
    jurisprudence, why don't we just, you know, mandate everything,
    you know, from sentencing on? Let's really start to restrict
    judicial discretion. Do we have confidence in our prosecutors
    that they are going to protect in some aspects the rights of
    the defendant as well as the administration of justice in a
    larger sense? I mean----
        Mr. Richter. If I might respond, the case called United
    States v. Hastings--I do not believe the court was opining with
    regarding to a lack of confidence in judges to identify the
    kinds of points that Congressman Lungren credibly is
    identifying, and, obviously, we would hope, of course, that the
    parties to a case would do their utmost to identify pitfalls
    and risks and problems.
        What the court in Hastings identified, however, and what I
    think is of deep concern from the Department's perspective is
    that there are things that cannot be identified and cannot be
    accounted for. So, for example----
        Mr. Delahunt. But let me interrupt you. I mean, can't a
    judge and a prosecutor and counsel for the defendant--aren't
    they situated to determine potential problems and issues? They
    are more familiar with the case than the collective position of
    the Department of Justice or even, with all due respect, to the
    perspective of one particular circuit court of appeal?
        I mean, I hear--I do not know whether it was from you, Mr.
    Richter, or maybe it was from Judge Tunheim--about impacting
    negotiations as it relates to settlements or even being used as
    a tool in terms of negotiating plea agreement. I mean, give me
    a break.
        You know, I would challenge the department and anyone to
    come forward and present, you know, some empirical data that
    would establish that that the threat of a camera in the
    courtroom has been used as a tool in terms of affecting a plea
    bargain. That argument just is silly.
        You know, we can create all sorts of scenarios that have no
    basis in reality. We all live in the world. We are all familiar
    with the experience. I think it was maybe Judge Gertner that
    said, I mean, we have--well, in Massachusetts--26 years of
    experience. This is not something new. It would be my position
    that the Federal Government or the Federal system is way
    behind, way behind the States.
        I yield to you, Mr. Lungren.
        Mr. Lungren. I would like to raise this because Mr. Richter
    raises this in his prepared testimony, and I would like Mr.
    Richter to respond and also Judge Gertner, and that is the
    assertion that ``The bill does not protect against the
    televising of evidence that should not be disseminated except
    to the limited degree necessary to ensure due process and fair
    trial, for example, sensitive information relating to terrorism
    prosecutions and that the bill does not account for the
    increased harm caused by wider than necessary dissemination of
    sensitive law-enforcement techniques when disclosed in open
    court.''
        I am concerned about those two things. I presume judges
    would take care of those as they take care of unnecessary
    dissemination in the open courtroom of those things. But, Mr.
    Richter, if you could, you know, sort of flesh that out, I
    would appreciate that.
        Mr. Richter. Sure.
        Mr. Lungren. That is a concern of mine, and particularly in
    terrorism, that would be a generally unique circumstance for
    Federal court versus State court.
        Mr. Richter. Well certainly. Obviously, when we go through
    a decision in which we are going to make use of information
    that is classified and make a use decision that the attorney
    general signs off on to authorize, with, obviously, the consent
    of the classifying agency, the ultimate declassification of
    information so that we could use it during the course of a
    criminal proceeding, we necessarily have to calculate some of
    the risks, obviously, to national security in weighing that
    against the benefits of going forward with a criminal
    prosecution.
        The concern we have, of course, is that to the extent that
    you are televising a proceeding--and more than just the one-
    time broadcast--the fact that broadcasts now in the modern
    world do not just include major networks or Court TV or C-SPAN,
    but also include, of course, bloggers and all kinds of Web
    sites and all kinds of unique other delivery mechanisms.
        Mr. Lungren. Al Jazeera perhaps.
        Mr. Richter. And Al Jazeera, for example, yes.
        And so when information is conveyed in a courtroom, at some
    level, there is still a degree in a continuum of privacy for
    any information that is conveyed because you are only telling
    the people that are in that courtroom. Now some of those people
    may go out and tell a lot of other people, and the information
    may be disseminated. But there is a difference to some degree.
        There is, I think we all have to concede, a difference--
    otherwise, we would not have this bill--between the amount of
    dissemination that follows from a regular proceeding that is
    not televised or in which cameras are not present, and the
    amount of dissemination possible when cameras are there.
        So I think from a national security perspective, obviously,
    in those kinds of cases, if such a bill like this existed, we
    would be, one, factoring in the possible risks. Again, it will
    depend on the judge that we draw under a bill like this, and
    that, obviously, is not something we know until the charges are
    filed and we go forward.
        And so while we would, of course, hope under those
    circumstances that a judge would come down on the side that
    you, Congressman, wisely have indicated you would. There is
    certainly no guarantee, as this bill is currently drafted.
        Mr. Lungren. Judge Gertner?
        Judge Gertner. Well, we already have some experience with
    this, even in the Federal courts. The Federal court now, all
    our records, all the filings are electronic, and we have had to
    come up with degrees of access because there are some things
    that--Social Security numbers, all sorts of things--should be
    sealed, things that are ex partes, things that may be sealed
    and the lawyers only have access to, things that are more
    broadly sealed, and literally we have come up with electronic
    devices that would affect who has access to what. So, again, it
    was a technical issue, and we worked on that.
        In the open court--I have an electronic courtroom--
    likewise, I had to learn to deal with how contemporaneously
    information was now put on the screens. So we put in a kill
    switch so that if the information as not properly admitted, I
    could just press the button. It would then be only for me or
    only for me and counsel. I do not remember who it was that said
    that this is going to happen, and we have to come up with
    techniques and rules to identify how to control it.
        Terrorism is a unique situation, and it may be that those
    trials ought to not be televised. Again, even with respect to
    ordinary public trials--I am in the middle of a patent case
    now--portions of the case deal with trade secrets. We empty the
    courtroom, and we move on. It seems to me the parties in the
    case are able to identify what the concerns are, and there is
    not a court in the country that would not be deferential to
    those concerns, particularly given how hostile judges are to
    cameras.
        What is going to happen the day after this bill is passed
    is not that, you know, suddenly the Federal courts are going to
    be wide open. This is going to proceed in baby steps, as it
    should.
        Mr. Delahunt. Mr. Keller?
        Mr. Keller. Thank you, Mr. Chairman.
        Let me begin by going to Judge Gertner. Why is it that you
    think there is a split among the Federal judges the way that
    there is? Is it possibly a deference by some of them just to
    the Judicial Conference and to other folks, or do most judges
    in the Federal genuinely oppose the cameras in the courtroom?
        Judge Gertner. That is a very hard question for me to
    answer. I think that one is in deference to the Judicial
    Conference. [Laughter.]
        Mr. Keller. Okay.
        Mr. Delahunt. Hit that kill switch, please.
        Judge Gertner. Right. I love that kill switch.
        I think that part of it is the O.J. Simpson case completely
    soured the Federal bench on this issue. I think that it is also
    safer to say no than it is to engage with the technology.
        Mr. Keller. It would appear to me that maybe they do not
    want to have the discretion because that would put them in a
    tough view on those situations when they say no.
        Judge Gertner. No comment on that.
        Mr. Keller. All right.
        Let me go to the next question here. Mr. Richter, based on
    the policy arguments that you have made here today, is it your
    view that the 43 States that currently allow TV coverage in
    civil trials and 39 States which allow TV coverage in criminal
    trials are wrong to do that?
        Mr. Richter. Well, as we all know, we live in a Federal
    republic, and it is the decision of each individual State to
    make its own decisions about how each individual system of
    justice operates in those States. Certainly, in formulating our
    position, we----
        Mr. Keller. But do you see what I am getting at? The same
    policy reasons that you have made could be made by the State
    judges as well, correct?
        Mr. Richter. Yes. We have looked, of course, and examined
    those experiences to the degree that you can ascertain
    anything. The concerns that we have--and, again, I have been
    cut off a couple of times on this--there are things that cannot
    be quantified, that simply cannot be identified by a judge,
    that are not going to be quantifiable in a case such that it
    would ever lead to reversal. You know, when----
        Mr. Keller. What is a unique concern that is different in
    the Federal courts than State courts?
        Mr. Richter. Well, I do not know that it is necessarily
    unique. I think some of these concerns----
        Mr. Keller. All right. Let me stop you there.
        Mr. Richter [continuing]. There are always significant
    security----
        Mr. Keller. I understand. My focus----
        Mr. Richter. There are significant security----
        Mr. Keller. I understand, and I----
        Mr. Richter [continuing]. Concerns that extend at the
    Federal level that are far greater in many circumstances than
    you find at the State level.
        Mr. Keller. All right. Let me stop you there because I do
    not want to go too far, but it is a Federal crime to misuse the
    4-H emblem. Murder is typically a State crime. So I think it is
    a pretty broad generalization to say, ``What we do here in
    Federal court is so important and unique, we cannot have
    cameras. But what they do in State court is not that big of a
    deal, so it is okay to have cameras.'' Would you agree with me
    at least that that is a little too broad?
        Mr. Richter. I was a State prosecutor. I prosecuted lots of
    cases as an Assistant District Attorney. I know that the work
    that State and local prosecutors and State and local law
    enforcement does is God's work and some of the most important
    work that we do in this country.
        What I am trying to articulate is what we believe is best
    for our Federal system of justice and the cause of justice at
    the Federal level.
        Mr. Keller. Let me just comment, too. One of my bright
    colleagues, Judge Gohmert, has said that essentially maybe if
    we give these judges a raise, they will swallow the TV cameras.
    [Laughter.]
        I am summarizing there here, and I am empathetic. But let
    me just point out to my esteemed jurist who knows a lot more
    about these issues than I do that the Supreme Court justices
    made $202,000 a year. Judge Judy makes $27 million a year. So
    we are never going to be able to come up with that kind of
    money to make them happy. But I sympathize that they are
    underpaid for the great value that they bring to society.
        I would also point out that they write decisions like Brown
    v. Board of Education. She wrote a book called ``Don't Pee on
    My Leg and Tell Me It's Raining.'' I will let you know which
    one has a bigger W-2 form, but sometimes life is not fair.
        Let me just go to now Ms. Swain. One of the things I am
    having a hard time with on the folks who want to shut down the
    cameras in the Federal courtroom is they are saying, ``Well, it
    is okay,'' as Judge Roberts said, ``that somehow we have
    audiotapes in the Federal courtroom. It is okay to have the
    sketch artists. It is okay to have the journalists. It is okay
    to have members of the public present. But it is somehow not
    okay to have the cameras there.'' Can you articulate why you
    think you should have the cameras there if all the other stuff
    is being allowed?
        Ms. Swain. Well, I think you have just made my case for me,
    that the discrimination between the types of media that are
    currently allowed to cover the proceedings does not make any
    sense to us. In fact, it seems to be a level of discrimination
    between print press and electronic press by allowing the print
    press into the room, but not allowing the electronic journalist
    to take his or her tools into the same courtroom. So we do not
    understand the inconsistency.
        Obviously, the galleries, whether press or public, in the
    Supreme Court or any of the Federal courts, there for a very
    important reason, can only accommodate so much, and the whole
    system was envisioned at a time when travel was not as distant
    as it is today. The cameras just seem like a logical extension
    to us.
        Mr. Keller. Okay.
        Mr. Chairman, my time has expired.
        Mr. Delahunt. Judge Gohmert?
        Mr. Gohmert. I thank my friend from Massachusetts.
        And, you know, that was a very loose paraphrase of what I
    said. The camera issue aside, Federal judges should have a
    raise. I do not have any qualms about that, and I would not
    want--I did not know she was making $27 million.
        But I would like to comment on a few things that were
    brought up. For one thing, my friend from California, my good
    friend from California, brought up about sidebars and concerns
    about things like that being picked up. My experience was when
    the media knows that they will be kicked out of the courtroom
    and will no longer be allowed to have any footage, any audio,
    they are very careful, especially my experience with Court TV
    was they went out of their way to be careful.
        Especially after you have been covering a case for 3 or 4
    weeks, if you do something and violate the rule or the law of
    the order and you get yanked from the case, your viewers get
    real upset with you, and they quit paying attention and may
    watch something else because they do not want that interrupted.
        By the same token, in Tyler, having three networks that
    were constantly wanting footage from trials because they knew
    in our small market to compete they had to get the things
    people were interested in, they were very careful not to
    violate the protective order because they did not want the
    other two stations to be able to show stuff on the news that
    they could not broadcast, and with that looming continuous
    threat, it was my experience everyone was very careful. We
    never had a problem in 10 weeks on that.
        Now I will say on the issue of discriminating against the
    types of media, I discriminated against the types of media
    based on one issue, are you a distraction to the jury, because
    when we were in session, anything that distracted the jury was
    not going to be allowed in the courtroom. That was made very
    clear to the media. Court TV was incredibly good. I kept
    watching the jury because if I ever saw them distracted one
    time, the camera was gone. And they were never distracted. It
    was not a problem.
        I got the ire of the print media because their cameras made
    noise when they clicked, and, as I told them, ``You come in
    here with a camera that does not click, you are welcome. Take
    all the pictures you want.'' And he said, ``Well, our editor
    and publisher will not buy cameras that do not click.'' I said,
    ``That is your problem. You are not clicking and making noise
    in the courtroom because that is a distraction.'' So sometimes
    it is necessary to discriminate between various types of media
    if they are a distraction.
        On another point, something I meant to bring up earlier, I
    have heard so many people say when you bring a camera in the
    courtroom, you just lengthen the trial, and I remember hearing
    people say after the O.J. Simpson case, ``See, television was
    in the courtroom. Therefore, it was long. In Susan Smith's
    case, there were no cameras in the courtroom. Therefore, it
    went very fast.''
        That was not the reason. The reason the case I tried went
    so long, the reason O.J. Simpson's case went long, is the
    defendant had lots of money in both of those cases. They went
    toe to toe with every witness. When one side had a witness, the
    other side had a witness. As judges, we can control if there is
    duplicitous testimony, things like that, but when it is fresh
    testimony, you know, you have to allow it.
        It was not so much an issue of television. It was an issue
    of whether the judge will control the courtroom and also
    whether or not the parties want to spend the money, and in
    those cases, they did.
        And I will say this, this is true, but I have had judges
    tell me, ``Look, I know you allowed cameras in your courtroom
    from time to time. I like the anonymity.'' And there is a lot
    of comfort in anonymity when you are a judge that makes tough
    rulings, and I recognize that, and there are cases it would be
    nice to give anonymity, so you balance those things, and I
    think you come out ahead if you say the public should be
    allowed to see and hear what goes on in our courtrooms.
        And I thank the Chairman and yield back.
        Mr. Delahunt. Thank you.
        Thank you to this panel for sharing your insights and your
    expertise and experience.
        And without objection, Members will have 5 legislative days
    to submit any additional written questions to you, which we
    will forward and ask that you answer as promptly as you can to
    be made part of the record.
        And without objection, the record will remain open for 5
    legislative days for the submission of any other additional
    materials.
        It has been a very good hearing. It has generated valuable
    input from all of you. I think we all concur that greater
    transparency in the judicial process can enhance our democracy
    by promoting greater public understanding of our judicial
    system, and we do need to be cognizant that access to Federal
    judicial proceedings is granted in a manner that does not
    detract but enhances.
        And with this, the hearing is adjourned.
        [Whereupon, at 3:42 p.m., the Committee was adjourned.]
                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John Conyers, Jr., a Representative
    in Congress from the State of Michigan, and Chairman, Committee on the
                                   Judiciary
        Since 1946, the photographing and broadcasting of federal district
    court criminal and civil proceedings have been prohibited by directive
    of the Judicial Conference. Federal appellate courts, in contrast, have
    been authorized by the Conference to use their discretion in
    determining whether to allow electronic media coverage of appellate
    arguments. Currently, only the Second and Ninth Circuit Courts of
    Appeals permit cameras in their courtrooms.
        In recent years, however, there has been growing public interest in
    having all federal judicial proceedings televised, which may reflect a
    greater general desire for transparency, as well as heightened interest
    in certain well-publicized cases.
        Today's hearing provides an opportunity for us to consider H.R.
    2128, the ``Sunshine in the Courtroom Act of 2007,'' which would allow
    the presiding federal district or appellate court judge to permit
    electronic media coverage of court proceedings. I commend my colleagues
    on both sides of the aisle, Bill Delahunt and Steve Chabot, for their
    leadership on this measure.
        It is my hope that this hearing will shed some sunlight on the
    following issues.
        First, would this measure help promote greater understanding of the
    judicial process by the public, by making it more transparent? It is
    vital to our democracy that the public understand the critical role
    that our federal judicial system plays in our system of open government
    with respect to protecting the rights of all citizens. Greater
    transparency also helps enhance the public's trust and confidence in
    the judicial process. As Justice Louis Brandeis once said, ``Sunshine
    is the best disinfectant.''
        Second, would the measure grant access to federal judicial
    proceedings in a way that promotes fairness? Many believe that the
    constitutional right to a fair trial requires that all court
    proceedings be open to the public, including the press. They cite, for
    example, the Supreme Court's ruling in Richmond Newspapers, Inc. v.
    Virginia, which held that ``the right to attend criminal trials is
    implicit in the guarantees of the First Amendment.'' Similar statements
    could be made with respect to civil trials.
        Third, would the measure undermine due process and privacy rights
    of participants in federal judicial proceedings by opening them to
    intrusive electronic media? We should be appropriately careful that
    media coverage of these proceedings not impair the fundamental right of
    a citizen to a fair and impartial trial.
        The prospect of public disclosure of personal information may have
    a material effect on an individual's willingness to testify, or place
    an individual at risk of being a target for retribution or
    intimidation. Likewise, the safety and security of our judges, law
    enforcement officers, and other participants in the judicial process
    should not be jeopardized. Accordingly, we should take proper
    precautions to ensure that the privacy of all participants in the
    judicial process is appropriately protected.
        I look forward to having an informative discussion on the
    advantages and disadvantages of electronic media coverage of court
    proceedings.