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Netflix, Hulu . . . the 9th Circuit?

On February 7, the 9th Circuit Court of Appeals had its moment in the streaming media spotlight when it live-streamed audio of a contentious hearing on President Trump’s controversial travel ban.

The tech-savvy, San Francisco-based court’s YouTube stream alone had over 136,000 listeners at its peak. The stream was also accessible on Facebook and numerous news outlets’ websites, as well as on broadcast television, at least in part. It is likely over 1 million people listened live to some or all of the hearing. In contrast, just 50 people tuned into the 9th Circuit’s previous live stream.

Does this signal a turning point in the creeping trend of recording and digitizing our judicial proceedings? Or are U.S. courts intent on continuing with their historically cautious approach?

Inertia

The general state of courtroom video recording and broadcasting in the United States might be aptly described as in its adolescence, if not its infancy. The 9th Circuit made headlines with its huge live audience for the travel ban hearing and has recorded or streamed video of oral arguments for years. In contrast, most federal courts either forbid cameras altogether or do not release their recordings to the public.

Federal rules dating as far back as the 1940s have long established a default position against allowing cameras in both criminal and civil federal cases. Inertia against changing these rules has proved significant.

A three-year pilot program in the early 1990s saw the 2nd and 9th Circuit Courts, as well as six district courts, welcome cameras into their courtrooms. A Judicial Conference rules committee then recommended that the Conference permanently authorize cameras in federal, civil trials and appeals. The Conference declined to do so, citing concerns over the possible intimidating effects of cameras on jurors and witnesses.

Shortly thereafter, however, in 1996, the Judicial Conference punted on video recordings of appeals, allowing each circuit court to make its own rules. The 2nd and 9th Circuits would quickly adopt generally permissive policies that same year, followed recently by the 3rd Circuit in January, 2017. The district courts, meanwhile, would have to wait another 15 years before they saw another camera.

A second pilot program from June 2011 to July 2015 allowed cameras during civil proceedings in 14 district courts. At its conclusion, official policy on federal trials would continue to ban cameras. Just three participating district courts, all within the 9th Circuit, still permit cameras under a narrow extension of the pilot program meant to gather long-term data for continued study.

Some in Congress would settle the issue themselves and allow video recording and broadcasting of proceedings at district courts, but so far they have had little luck. The Sunshine in the Courtroom Act is an oft-introduced bill to permit cameras in federal trials which never seems to have legs.

Pros and cons

Whether live streaming or recorded, courtroom video made publicly available presents certain pros and cons. Video recordings disseminated online are inherently more accessible and educational to the public than transcriptions or even audio recordings. This is especially true of laymen, as opposed to those in the legal industry.

Interestingly, most of the commonly argued disadvantages of courtroom cameras have to do with jurors and witnesses. This is reflected in the current state of federal rules, which permit appellate courts to make their own policy, but generally forbid cameras in trial courts.

Broadcasting a trial may make it harder to find unbiased jurors in the event of a retrial, for example. And sequestering juries may become more frequently necessary in order to keep jurors from viewing proceedings held outside their presence.

Practicing attorneys have mixed views on the issue.

Defense attorney Paul Saputo is concerned about the compromise between creating a more informed populace and the potential to turn a serious trial into a performance. “Streaming court hearings could certainly help create a more informed nation, but the risk is found in the public platform that streaming creates. Courts would prefer that lawyers focus on answering their questions instead of focusing on the cameras,” Saputo told BLF. “When the courtroom becomes a stage for actors, the justice system could lose the credibility it needs to resolve important and complex issues.”

Jef Henninger, an attorney who also works with criminal defendants, believes both attorneys and the courts can benefit from having an audience. According to Henninger, “One of the benefits of making videos of proceedings available is that it will make the courts accountable. Unless you've gone through your own case, the general public has no idea what really goes on.” Henninger says that it can be difficult for attorneys to advocate for changes in the legal system because the public is often skeptical of claims made by litigants.

Videoconferencing: “Virtual Court”

The 9th Circuit’s travel ban hearing was not just live-streamed. It was also conducted by telephone because it was held on an emergency basis. While no one would suggest holding hearings or trials by telephone on a regular basis, video conferencing, with multiple high-definition cameras and high-speed live streaming, is a serious matter. In the 9th Circuit Court today, parties to hearings and trials may request that the proceedings be held by video conference.

The primary advantage of videoconferencing is a potentially significant cost savings. A “virtual” hearing slashes costs related to facilities and staff. No courtroom or bailiff is necessary. New costs are incurred in the form of high-bandwidth internet access, computers, and audiovisual equipment, but those costs are shared by parties and counsel.

In addition to cost and time savings, Jef Henninger sees the potential for new technologies to help overburdened court systems. “In New Jersey, probably like other jurisdictions, there are not enough judges to handle all of these cases,” saif Henninger. “One way to increase the number of cases each judge can handle is to embrace change and come up with creative solutions using technology. If I can do several court appearances by phone or video conference in three difference courts without leaving my office, I won't need to request an adjournment. That will lead to the cases getting resolved faster and lessen the workload for everyone.”

Video conferencing, a technological convenience for attorneys and judges, may seem an easy sell when compared with broadcasting trials and the worrisome questions that entails. However, while its disadvantages are rather more subtle, they fall disproportionately on clients at trial.

When client and counsel are not at the same physical location, it can be difficult or impossible to confer confidentially. Additionally, criminal defendants might be expected to present better in person than they would from a correctional facility. This goes double for non-English-speaking defendants like those in immigration court.

Supreme Court

The arrival of cameras in the Supreme Court has long seemed a distant dream. In 1996, Justice David Souter said, "The day you see a camera come into our courtroom it’s going to roll over my dead body." More recently, Justice Anthony Kennedy in 2008 cautioned Congress against putting cameras in the Supreme Court, calling it an “insidious dynamic” and saying he might suspect his colleagues of creating “sound bites.”

However, the Supreme Court’s hard line against cameras could be eroding. During his confirmation hearing, Neil Gorsuch at least refrained from shooting down the idea, saying he had an “open mind” on cameras in the court when asked by Sen. Amy Klobuchar. The newly confirmed Justice Gorsuch replaces a firm “no” on the idea held by the late Justice Antonin Scalia. Justice Scalia never bought into one of the most reliable arguments of proponents of putting cameras in the courtroom — that it educates the public. In fact, Scalia said it would “mis-educate” people because the vast majority would inevitably be exposed only to those same sound bites Justice Kennedy worried about.

The future

While the idea of video-recorded and live-streamed court proceedings brings up difficult questions about how best to ensure justice, a decidedly lower-tech digitization of the courtroom is stirring its own controversy.

The inexorable replacement of human labor with technology is in the process of claiming its next victim: the court reporter. In many state courts, long challenged with stretching each budget dollar to its limit, human transcriptionists are giving way to digital audio recordings.

The cost savings are quite apparent. However, detractors are quick to point out several potential disadvantages. Overlapping voices can be more difficult to distinguish in a recording. Witnesses may speak too softly to be heard clearly. If the system stops working, that may not be immediately apparent, and records may therefore be lost. And a human court reporter can halt the proceedings if necessary to establish a clear record. A recording can not do that.

Proponents and vendors counter that multi-channel, high quality audio allows voices to be isolated and slowed down when necessary. Further, “courtroom monitors” — humans who supplement recording systems by writing down proper names or unusual terms — help fill in the gaps when necessary.

This energetic push-back against an implementation of even modest technology in the courtroom may not come directly to bear on camera policies, but it does serve to illustrate just how difficult real change can be in the U.S. justice system.

About Author

Ryan Conley is a staff contributor to Bigger Law Firm Magazine and a legal content strategist for U.S. based law firms.

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