by Rudy E. Verner, Steven D. Zansberg
This article provides an overview of the constitutional basis for open courts, Colorado’s expanded media coverage rule, and the history of television and other news media gaining access to courtrooms. It also discusses the use of blogging, tweeting, and other forms of new media to report on court proceedings. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 39) and will publish in two CBA-CLE Legal Connection blog posts. The second part of the article can be found here. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.
Expanded media coverage (EMC) refers to the news media’s use of cameras and microphones to record judicial proceedings, such as a trial, a sentencing hearing, or other court proceeding. Although courtroom proceedings presumptively are open to the public and members of the press, media organizations are required to get permission from the judge before gaining access for EMC. Private attorneys, prosecutors, and state trial judges will benefit from understanding how the EMC process works and the standards governing EMC.
This article provides an overview of the constitutional basis for open courts, the current Colorado EMC rule, and the history of television stations and other news media gaining access to courtrooms. The emergence of blogging, tweeting, and other forms of new media to report on court proceedings also is briefly discussed.
The Constitutional Right of Access to Court Proceedings
In four landmark cases decided in the 1980s, the U.S. Supreme Court established that the press and general public have a constitutional right of access to criminal trials and related judicial proceedings.1 Although this right is not expressly granted by the U.S. Constitution, the Court reasoned that the right to attend criminal trials is a fundamental right indispensable to the enjoyment of other, enumerated rights. A brief description of this constitutional guarantee provides context for understanding Colorado’s EMC rule and the news media’s right to petition courts for expanded coverage of court proceedings.
In Richmond Newspapers, Inc. v. Virginia, the Supreme Court explained that the freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government.2 The Court found that in guaranteeing freedoms such as those of speech and press, “the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees.”3 The right to freely receive information and ideas means, in the context of trials, that the First Amendment guarantees of speech and press, “prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted.”4
Moreover, the Supreme Court found that the First Amendment’s right of free assembly is relevant, having been regarded “not only as an independent right” but also as a “catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen.”5 Therefore, the Court concluded:
a trial courtroom is a public place where the people generally—and representatives of the media—have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.6
The Supreme Court also has observed that public access improves the functioning of an adversarial trial system by, among other things, ensuring that proper procedures are being followed, encouraging those with information to come forward, and creating incentives for all participants to perform well.7 Public access also discourages perjury, misconduct, and bias, and in this respect “is an effective restraint on possible abuse of judicial power.”8 By permitting the public to serve as a check on the judicial process, the right of access “enhances the quality and safeguards the integrity of the fact finding process.”9 Indeed, direct, first-hand observation of the judicial system fulfills the constitutional aspiration of the Framers for a transparent and accountable system of justice:
It is desirable that the trial of causes should take place under the public eye . . . because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.10
Public access to judicial proceedings improves the actual operation of the justice system and improves the appearance of justice. As the U.S. Supreme Court explained in another seminal case:
The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.11
Of course, in modern times, the vast majority of Americans do not acquire information about trials by first-hand observation, but instead “people now acquire it chiefly through the print and electronic media. In a sense this validates the media claim of functioning as surrogates for the public.”12
Although no court has yet recognized a First Amendment right to bring a camera or microphone into a courtroom,13 Colorado’s EMC rule is a powerful mechanism to facilitate the people’s constitutional right to “attend” judicial proceedings. When a camera and/or microphone is allowed into the courtroom to record or broadcast the testimony of witnesses and arguments of counsel, people who cannot be present at the courthouse are provided an opportunity to witness, first-hand, the workings of the judicial system.
Rule 2: The New EMC Canon
Before the enactment of Colorado’s first EMC rule, district court judges were authorized to grant access to the courtroom for cameras and microphones, but only in the event no witness or juror objected to being photographed or recorded.14 In practice, this meant that any participant in a trial or court proceeding had veto authority over EMC; as a result, the news media stopped seeking permission for such access and Colorado’s courtrooms were effectively closed to still photography and broadcast media. In June 1983, the Colorado Supreme Court authorized an experimental program for EMC in the courts. As a result of that experimental program, a revised Canon of Judicial Conduct was proposed.
Adopted in 1985, Canon 3(A)(8) of the Colorado Code of Judicial Conduct set forth the standard courts were to apply in determining whether EMC should be granted for a particular trial or hearing. The EMC Canon, as the rule came to be called, also placed certain conditions on EMC and established procedures the media had to follow to obtain authorization for such coverage. The television and print media have had a successful twenty-five-year experience operating under Canon 3(A)(8) of the Code of Judicial Conduct.
In 2010, the Colorado Supreme Court amended and adopted Rule Change 2010(14), which re-enacted, effective July 1, 2010, the pertinent provisions of Canon 3(A)(8) as a rule of court procedure.15 This new “Rule 2″ is found in Chapter 38 of the Colorado Court Rules. Except as renumbered, Rule 2 is identical to former Canon 3(A)(8) of the Code of Judicial Conduct and provides that a judge may authorize EMC of court proceedings, subject to certain guidelines set forth in the rule.16
The first subsection of the rule defines certain terms relevant to requests for EMC. It defines “expanded media coverage” as “any photography or audio recording of proceedings” and defines “proceeding” as “any trial, hearing or any other matter held in open court that the public is entitled to attend.”17 Although the majority of EMC requests involve access to criminal trials or other criminal proceedings, the rule clearly allows for such requests to be made in the context of civil trials and other proceedings in which the public and press are interested.18
Subsection (2) states that, when determining whether EMC should be permitted, judges shall consider three factors: (1) whether there is a reasonable likelihood that EMC would interfere with the rights of the parties to a fair trial; (2) whether there is a reasonable likelihood that EMC would unduly detract from the solemnity, decorum, and dignity of the court; and (3) whether EMC would create adverse effects that would be greater than those caused by traditional media coverage.19
Subsection (3) contains several limitations on EMC. It states that there shall be (1) no EMC of pretrial hearings in criminal cases, except advisements and arraignments; (2) no EMC of jury voir dire; (3) no audio recording or “zoom” closeup photography of bench conferences; (4) no audio recording or closeup photography of communications between counsel and client or between co-counsel; (5) no EMC of in camera hearings; and (6) no closeup photography of members of the jury.20
The following subsection provides that the judge may restrict or limit EMC “as may be necessary to preserve the dignity of the court or to protect the parties, witnesses, or jurors.”21 To this end, the rule provides that the judge may terminate or suspend EMC at any time on making findings of fact that:
(1) rules established under this Canon or additional rules imposed by the judge have been violated; or (2) substantial rights of individual participants or rights to a fair trial may be prejudiced by such coverage if it is allowed to continue.22
The final subsections set forth the conditions under which EMC must be conducted and the procedure for filing a request. Subsection (5) includes limitations on the type of equipment that may be used, directs the media to designate a representative for the purpose of coordinating a pooling arrangement for all interested media, and sets forth standards of conduct for all media representatives in the courtroom.23 Subsection (6) sets forth procedures for submitting a request for EMC and filing an objection to such a request. It provides that a written request for EMC must be submitted to the judge at least one day before EMC is requested to begin, unless a longer or shorter time is required or permitted by the judge.24
Practitioners filing requests for EMC should check to see whether there are any additional rules or requirements imposed by the judicial district where the case is being heard. For example, the Twentieth Judicial District (Boulder County) has adopted a local rule to implement Rule 2 and its website provides a link to an approved form for EMC requests.25
People v. Wieghard: A Presumption in Favor of EMC
Only one Colorado appellate court decision has addressed the issue of allowing television cameras in the courtroom.26 In People v. Wieghard,27 the trial court had held that the presumption under Canon 3(A)(8) (now Rule 2) was in favor of open coverage and that a party opposing such coverage would have the burden of proving adverse effects therefrom.28 In affirming the defendant’s conviction for first-degree murder, the Colorado Court of Appeals held that the trial court did not abuse its discretion in permitting EMC, stating that “[t]he mere presence of a camera in the courtroom does not in itself deny a defendant due process.”29 Although it did not undertake an exhaustive analysis of the EMC rule, the Wieghard court held that the trial judge did not err when he applied a presumption in favor of allowing EMC, a presumption that can be rebutted only if the defendant shows that the coverage interfered with his or her right to a fair trial. The language of Wieghard also suggests that a trial court should receive evidence and hold a hearing before making its determination.30
The Colorado Supreme Court and EMC
The Colorado Supreme Court has not had occasion to hear a case in which EMC under Rule 2 or its predecessor Canon of Judicial Conduct was a basis for appeal. This state’s highest court has, however, made several public statements regarding the importance of open courts and the educational benefits of allowing the public to watch judicial proceedings.
In 2002, Chief Justice Mary Mullarkey entered an Order that allowed trial courts in the state to waive all restrictions of the EMC rule and allow a national television network to videotape and broadcast entire criminal proceedings, including trial preparation, pretrial motion hearings, jury voir dire, and even jury deliberations.31 The former Chief Justice was quoted as saying that she was “convinced that the benefits of opening up the courts outweighed the disadvantages.”32
Former Justice Rebecca Love Kourlis similarly stated that:
The Supreme Court’s support of this program reflects the high priority we place on public education and jury reform. We believe that we do have a responsibility to educate the public about what really goes on in the courts and criminal trials specifically, and this program serves that goal.33
Consistent with these sentiments, the Colorado Supreme Court has allowed one oral argument to be televised and permitted audio recordings of both its oral arguments and those of the Court of Appeals to be streamed and archived online.34
1. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, and n.17 (1980) (news media and members of public possess First Amendment right to observe criminal trials); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (recognizing right to attend testimony at criminal trial of minor victim of sexual offense); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise Co. I) (right to attend voir dire examinations of jury venire in criminal case); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (right to attend preliminary hearing in criminal case).
2. Richmond Newspapers, Inc., supra note 1 at 575.
4. Id. at 576.
5. Id. at 577.
6. Id. at 578.
7. Id. at 569-70.
8. Id. at 592 (Brennan, J., concurring) (citation and internal quotations omitted).
9. Globe Newspaper Co., supra note 1 at 606.
10. Gannett Co. v. DePasquale, 443 U.S. 368, 429 n.10 (1979) (Blackmun, J., concurring in part and dissenting in part), quoting Cowley v. Pulsifer, 137 Mass. 392 (1884) (Holmes, J.) (emphasis added).
11. Press-Enterprise Co. I, supra note 1 at 508.
12. Richmond Newspapers, Inc., supra note 1 at 572-73. See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975) (“in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he necessarily relies upon the press to bring him in convenient form the facts of those operations”); Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (the press “guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism”).
13. One court has expressly rejected the claims of a First Amendment-based “right” to televise trials. See Courtroom Television Network LLC v. New York, 5 N.Y.3d 222 (2005) (noting that in the twenty-five years since Chandler v. Florida, 449 U.S. 560 (1981), which held that televised trials do not violate due process, “no Federal Circuit Court has opined that the Federal Constitution guarantees the media a right to televise trials”). Recently, the U.S. Supreme Court granted a stay prohibiting “televising,” to five federal courts, the trial challenging the constitutionality of California’s Proposition 8. See Hollingsworth v. Perry, __ S.Ct. __, 2010 WL 105264 (Jan. 13, 2010). Although the stay was grounded exclusively on procedural grounds, in that 5–4 ruling, the majority expressed significant concerns about the effect of televising witness testimony. See id. at *7. Nevertheless, the majority opinion recognized that “the arguments in favor of developing procedures and rules to allow broadcast of certain cases have considerable merit.” Id. at *8.
14. See In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465 (Colo. 1956).
15. See www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes/2010.cfm.
16. The Code of Judicial Conduct is an appendix to the Colorado Rules of Judicial Discipline, found at Chap. 24 of the Colorado Court Rules (Rules) (West Pub., 2009). The Code contains fourteen Canons, delineated as Canons 1 through 9.5.
17. Rule 2(a)(1)(A) and (C).
18. For example, expanded media coverage has been granted in a disciplinary proceeding involving allegations that a district attorney had lied and threatened prosecution to gain advantage in a civil case (People v. Chambers, Case No. 06PDJ036 (Dec. 26, 2006)), and in an enforcement action brought under the Colorado Consumer Protection Act involving alleged fraud by a building contractor (State v. Martinez, June 2005) (Judge Don Marshal).
19. Rule 2(a)(2)(A) to (C).
20. Rule 2(a)(3)(A) to (F).
21. Rule 2(a)(4).
23. Rule 2(a)(5)(A) to (C).
24. Rule 2(a)(6). The Office of State Court Administrator has prepared a form to request expanded media coverage (EMC), available at www.courts.state.co.us/userfiles/File/Media/rqst_exp_media.doc.
25. See Twentieth Judicial District Administrative Order 02-102 dated Sept. 9, 2009, Re: Expanded Media Coverage of Court Proceedings, available at www.courts.state.co.us/Media/Index.cfm. This Order alters the time frame for submitting EMC requests and objections under the Canon as follows:
(c) A written request for coverage, using the attached Request for Expanded Media Coverage of Court Proceedings, must be in possession of the assigned judge per the following unless a longer or shorter time is required or permitted by the judge:
(1) By 11:00 a.m. on the advisement date;
(2) At least 48 hours before the scheduled arraignment;
(3) At least 2 weeks prior to the scheduled trial date;
(4) At least 2 weeks prior to the scheduled sentencing date.
(d) Objections must be submitted, in writing, directly to the assigned judge per the following unless a longer or shorter time is required or permitted by the judge:
(1) By noon on the advisement date;
(2) At least 24 hours before the scheduled arraignment;
(3) At least 5 days prior to the scheduled trial date.
26. This is likely due to the fact that only a party to the case, and not the media, can appeal a decision concerning expanded media coverage. Canon 3(A)(8)(f).
27. People v. Wieghard, 727 P.2d 383 (Colo.App. 1986).
28. Id. at 386.
29. Id., citing Chandler, supra note 13.
30. Id. (noting that “[a] hearing was conducted” and that “[c]ounsel were given an opportunity to present evidence”).
31. Order dated Oct. 10, 2002 from Office of the Chief Justice, Permitting Electronic and Photographic Access to Court Proceedings (on file with the authors). This was an extraordinary situation, because a typical EMC request does not seek a waiver of the restrictions in Rule 2.
32. “ABC to Eavesdrop on Colorado Trials,” The Denver Post A1 (Dec. 12, 2002).
34. See www.courts.state.co.us/Courts/supreme_court/oral_arguments/index.cfm; www.courts.state.co.us/Courts/court_of_appeals/oral_arguments/index.cfm.
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