[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



                   U.S. GOVERNMENT PRINTING OFFICE
37-979 PDF                  WASHINGTON : 2009
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free(866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, 
Washington, DC 20402-0001

                       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.

                                 
