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The media’s use of technology has evolved since the ‘60s, but on the federal level, courts have struggled to keep up with the rapidly changing industry. The courts are naturally more slow-moving than the media, whose success hinges on having the latest information as soon as possible. Even today, the use of cameras in federal criminal courtrooms of all levels is strictly prohibited, except in the Second and Ninth Circuit Appeals courts and in rare pilot programs the federal system has implemented, once in the ‘90s, and once again for a three-year trial period starting in 2011 in 14 federal district courts.
I’ve previously explored the U.S. Supreme Court’s extreme hesitancy to allow use of cameras during the ‘60s, but one particular case deserves reexamination from that post.
In the 1965 case of Estes v. Texas, the court threw out a conviction because a trial judge had allowed about a dozen reporters to videotape a pretrial hearing. The U.S. Supreme Court played up the self-consciousness cameras can create for everyone involved – lawyers, judges and witnesses posturing to the camera, trying their best to impress rather than to get at the truth. At that point in time, 48 state courts and the federal courts had banned camera use in courtrooms.
The use of cameras in the criminal courtroom is an inherent denial of due process, the court said:
The television camera is a powerful weapon. Intentionally or inadvertently it can destroy an accused and his case in the eyes of the public … We have already examined the ways in which public sentiment can affect the trial participants. To the extent that television shapes that sentiment, it can strip the accused of a fair trial.
The court refused to consider the possibility of a future where camera usage did not automatically render a judicial proceeding inherently unfair. Instead, the court wrote, “Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore reversed.”
But in the next decades that followed, camera technology rapidly improved and even American ownership of televisions increased dramatically.
This set the scene for the 1981 U.S. Supreme Court decision Chandler v. Florida. A criminally convicted defendant challenged a Florida state law that allowed camera usage in criminal courtrooms, charging that camera use had resulted in an unfair trial.
Upon decision, the Supreme Court declined to directly overturn Estes, concluding that it “did not announce a constitutional rule that all photographic or broadcast coverage of criminal trials is inherently a denial of due process.” But in practice, the court did in fact overturn the spirit of the Estes decision. The court also declined to establish a First Amendment right to use cameras in a criminal courtroom. Instead, the court rooted its decision in the concept of federalism, that federal government and state governments are both sovereign. Painting the decision as a states’ rights issue instead of a First Amendment issued, the court said:
It is not necessary either to ignore or to discount the potential danger to the fairness of a trial in a particular case in order to conclude that Florida may permit the electronic media to cover trials in its state courts. Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment. We are not empowered by the Constitution to oversee or harness state procedural experimentation; only when the state action infringes fundamental guarantees are we authorized to intervene.
Currently every state in the U.S. allows some use of cameras in courtrooms. Mississippi and South Dakota, the last holdouts, changed their camera use policies in 2001. Currently the federal courts allow the public access to audio recordings, and all the 14 district courts (for example, the Northern District of California) have archived copies of some videotaped judicial proceedings accessible online. The federal Cameras in Courts project will last up to 2014, which the Federal Judicial Center will conduct a study of that will determine the fate of camera usage in federal courtrooms in the future.
The ’50s and ’60s were a strange time for courtrooms. The emergence of broadcast journalism changed the way people got their news. In 1961, the U.S. Supreme Court marveled in Irvin v. Dowd at how the media, broadcast in particular, had changed the way the public approached a criminal trial: “In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”
It was virtually impossible to find jurors who hadn’t heard of a particularly high-profile case. Trial judges retained power over trial participants but sometimes failed to exercise those powers, resulting in unfair trials for defendants.
In 1963, the U.S. Supreme Court determined in Rideau v. Louisiana that a Louisiana trial judge had improperly denied a defendant’s motion for a change of venue. Defendant Wilbert Rideau had kidnapped three people and killed one in his 1961 attempt to rob a bank. When he was brought in for arrest, police videotaped Rideau’s confession. Shortly after, local news stations broadcast the tape on three separate occasions, reaching about 106,000 viewers in the area. The court noted that, during his confession, Rideau did not enjoy the right to counsel, and the broadcasting of his confession led to a trial by media and “kangaroo court” proceedings that violated his right to a fair trial.
Two years later, the Supreme Court overturned a swindling charge in Estes v. Texas because of press coverage of a pretrial hearing with about a dozen cameras covering the whole courtroom. The court noted that the presence of cameras in the trial courtroom changed the atmosphere – the defendant, judge, jury and witnesses become more self-conscious and focus on the cameras staring at them rather than the facts and trial at hand.
The court called the right to a fair trial “the most fundamental of all freedoms” and ruled that proof of just the appearance of prejudice is enough to deem a trial unfair. This extended the prior rule of the defendant having to prove prejudice during trial for his appeal to be successful.
Again the court commented on the rapid technological changes the media had faced in the last few years.
“It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials,” Justice Tom Clark wrote in the majority opinion. “But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore reversed.”
In the 1966 case of Sheppard v. Maxwell, the court again threw out a conviction because a defendant had suffered an extremely unfair trial due to media coverage and the faulty discretion of the trial judge. Dr. Sam Sheppard had been convicted in 1954 of murdering his pregnant wife. At trial, the judge was up for reelection in a few weeks and was going to run against the prosecutor of Sheppard’s case.
What followed was a mockery of the trial process: At a public inquest hearing shortly after his arrest, police officers searched Sheppard in front of a huge crowd in a gymnasium, held at that location to account for all the cameras and reporters. Later on, in the tiny courtroom where Sheppard was tried, the trial judge delegated most of the seats to members of the press, saving only the last row of seats for families of the defendant and victim. The trial judge allowed a long table to be put in front of the bar that normally separated formal court proceedings from the spectating public, and from there cameras bowed down on the defendant and the jury.
Accusations of poor character, numerous extramarital affairs and a child with one mistress lined the headlines of nearby newspapers, but the trial judge did not dismiss jurors who admitted to hearing the claims. During deliberations, jurors were allowed to make unmonitored phone calls despite being sequestered.
The Supreme Court ruled 8-1 for Sheppard and noted that the trial judge should have done more to control his courtroom, by sequestering jurors and witnesses and not allowing as many cameras, or indeed any, into the courtroom – or at least not in front of the bar, an unprecedented move.
A half-century later, Sheppard’s son Sam Reese Sheppard failed to convince a jury of his father’s innocence and lost a civil lawsuit based on wrongful imprisonment.
It is cases like these that remind media professionals the possible ramifications of overstepping bounds, sensationalizing cases and not behaving ethically.
Writes Marah Eakin of Ohio University, “[J]ournalists cannot allow themselves to be driven by their gut reaction and popular hunger for gossip – they must think through their decisions and report only what is ethical and just. Cases like the Sheppard trial allow journalists to learn from past mistakes to create a better reputation for the future.”