The Courts and The Media
The Sixth Amendment
Cases After the Sheppard Decision
Access to Pretrial Criminal Proceedings
Broadcast and Photographic Coverage of Trials
Common Law Concepts and Statutory Provisions
The First Amendment
Grand Jury Testimony
The Reporter as Plaintiff
Media as a Defamation Defendant
The Sixth Amendment.
The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . ." Missouri has a statute, section 476.170, RSMo 2004, which states: "The sitting of every court shall be public and every person may freely attend the same." See also, Missouri Constitution, Art. I, sections 14 and 18(a) and section 510.200, RSMo 2004.
Courts have fashioned various remedies to protect a criminal defendant's right to a fair trial from impairment by media coverage. These remedies include closing the courtroom to the press and public during trial and pretrial hearings, ordering the press not to publish certain information disclosed during trial or pretrial proceedings, keeping cameras out of the courtroom, and other restrictions. Most courts, both state and federal, will state that court’s rules and procedures governing photography and cameras in the courtroom in that court’s “local rules,” which are typically available on that court’s Web site.
In 1966, the Supreme Court of the United States reversed the murder conviction of Dr. Sam Sheppard, recognizing that in some instances pretrial news coverage can have a prejudicial effect on the fairness of a criminal defendant's trial. Sheppard v. Maxwell, 384 U.S. 333 (1966). The Court stated that trial judges should attempt to prevent the prejudicial effect of pretrial news coverage by: (a) continuing the case until the threat of prejudice abates, (b) transferring the case to another county where there is less publicity, (c) sequestering the jury, or (d) ordering a new trial if publicity during the trial threatens its fairness.
Cases after the Sheppard decision.
Since Sheppard, efforts by trial courts to protect the Sixth Amendment right of a criminal defendant have raised new issues. In the early 1970s, some courts began ordering the press not to publish information obtained or disclosed during a criminal trial. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), the Supreme Court of the United States held that a Nebraska trial court's "gag" order was an unconstitutional prior restraint. The Court's opinion noted:
A. In Sheppard, the Court had outlined measures short of prior restraint on publication that can be used to blunt the impact of pretrial news coverage.
B. The First Amendment does not serve as an absolute prohibition against restraint under all circumstances. In appropriate cases the court might limit what lawyers, police and other witnesses may say, but there must be a clear showing of need and justification.
C. Pretrial news coverage, even if pervasive and concentrated, does not automatically render every criminal trial unfair.
D. Juror exposure to news accounts of the crime does not presumptively deprive the defendant of due process.
Eventually, some trial courts attempted to close court proceedings entirely to the media and the public. However, in Gannett v. DePasquale, 443 U.S. 368 (1979), and Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Supreme Court recognized that criminal trials must be open to the public and the press, absent an overriding interest. See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (striking down a Massachusetts statute that required closure to the press and public of all trials involving underaged victims of sexual offenses). In El Vocero de Puerto Rico (Caribbean International News Corp.) v. Puerto Rico, 508 U.s. 147 (1993), the Supreme Court struck down a law prohibiting access to all preliminary hearings.
While criminal trials presumptively must be open to the public, trial judges have broad discretion to keep order in their courtrooms. Thus, trial judges have been permitted to prohibit the entrance to or exit from a courtroom by the public or press for a limited period, such as during the testimony of a certain witness, in order to minimize noise or distraction.
Where children are defendants or witnesses, the courts have wider discretion to close all or some of the proceedings. The Court must make a finding that closing the proceeding is necessary to protect a child witness. In Missouri, juvenile proceedings are closed to the public unless the juvenile is being accused of conduct that would be a Class A or Class B felony, if the child had been an adult. Section 211.171 RSMo 2004.
Access to Pretrial Criminal Proceedings.
The Supreme Court has handed down several important decisions regarding access to pretrial criminal proceedings. Media coverage of these proceedings poses concerns for the criminal defendant because such proceedings often involve the admissibility at trial of certain evidence or testimony.
A. In Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ("Press-Enterprise I"), the Court concluded that the First Amendment right of access applied to the voir dire of the jury, even though voir dire is not part of the trial itself.
B. In Waller v. Georgia, 467 U.S. 39 (1984), the Court unanimously decided that a pretrial suppression hearing may not be closed to the public where the accused objects to closure. The Court held that the accused's Sixth Amendment right to a public trial applied to suppression hearings and further concluded that the First Amendment right of access attached to such proceedings. The Court noted that access to both pretrial and trial proceedings insured that both judges and prosecutors carried out their duties responsibly, encouraged witnesses to come forward, and discouraged perjury.
C. In Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1985) ("Press-Enterprise II"), the Court considered whether the public should have access to a preliminary criminal hearing which the accused seeks to close. The Court held that prior to closing such a proceeding the trial court must find that there is a substantial probability that the defendant's right to a fair trial would be prejudiced by publicity that closure would prevent and that reasonable alternatives to closure could not adequately protect the defendant's right to a fair trial.
D. A recent Missouri Appellate Court decision, State v. Garvey, ED 85879 (Mo.App.E.D. 2005)(holding that certain juvenile proceedings where the juvenile is charged with a Class A or Class B felony can not be closed), provides a good summary of the law regarding access to criminal proceedings.
The Supreme Court has encouraged trial courts to consider the following remedies short of closure or "gag" orders:
C. Change of venue.
D. Change of venire.
E. Intensive voir dire.
F. Additional peremptory challenges.
G. Sequestration of the jury.
H. Admonitory instructions to the jury.
I. Cautioning police, prosecutors and others involved with the case about the impropriety of making inflammatory comments to the press.
J. Shielding witnesses from the press.
K. Cautioning journalists about the dangers of prejudicial news accounts.
Encouraging the adoption of voluntary bench-bar-press guidelines
Broadcast and Photographic Coverage of Trials.
In 1937, the American Bar Association (ABA) approved Judicial Canon 35, which declared that all photographic and broadcast coverage of courtroom proceedings should be prohibited. The states were free to adopt or not adopt the ABA recommendations. Many states, including Missouri (1967), eventually adopted the entire Canons of Judicial Ethics, including Canon 35.
In 1972, the ABA adopted the Code of Judicial Conduct, replacing its 50-year-old Canons of Judicial Ethics. By August, 1990, some 45 states, including Missouri (Rule 2), the District of Columbia and the U.S. Judicial Conference, had adopted it, including Canon 3(A). It continued to prohibit broadcast and photographic coverage of court proceedings.
In 1981, the U.S. Supreme Court, in Chandler v. Florida, 449 U.S. 560, rejected a claim that the television broadcast of a criminal trial in Florida had violated the defendants’ Sixth Amendment rights to a fair trial. Following this case, a number of states began eliminating their prohibitions on photographic and broadcast coverage of courts.
In August, 1990, the ABA adopted the Model Code of Judicial Conduct, omitting its 1972 Code provisions prohibiting broadcast and photographic coverage of court proceedings. Since then, several states have wholly or partially adopted the Model Code.
On September 11, 1992, the Supreme Court of Missouri adopted Administrative Rule 16, establishing a two-year "experimental period" for broadcast and photographic coverage of proceedings in specially designated Missouri courts.
On August 21, 1995, Administrative Rule 16 was implemented statewide. The rule can be found here on the state Web site.
Journalist's "Privilege" to Shield Sources.
Common Law Concepts and Statutory Provisions.
Originally, the law did not grant reporters any privilege to withhold their sources of information in a court of law. Courts had the right to obtain any evidence in the interest of ascertaining truth; hence, reporters enjoyed little or no right to protect their sources, notes, photographs or tapes.
A. Thirty-one states and the District of Columbia now have "shield" laws that mandate such protection. Missouri has no such statutory privilege.
B. States recognizing a common-law privilege include Connecticut, Florida, Idaho, Iowa, Kansas, Maine, Massachusetts, New Hampshire, Texas, Vermont, Virginia, Washington, West Virginia and Wisconsin.
C. Many judges, even without a “shield” law or common law privilege, frequently resist forcing journalists to turn over confidential documents or sources. Judges have the discretion to require a party to prove that the evidence sought is absolutely necessary and cannot be gained through other less intrusive means.
The First Amendment.
In 1958, columnist Marie Torre took a different approach by advancing the then-novel proposition that a reporter’s sources were protected by the First Amendment freedom of the press provisions. Garland v. Torre, 259 F.2d 545 (2nd Cir.), cert. Denied, 358 U.S. 910 (1958).
A. Torre ultimately was jailed for criminal contempt for refusing to name her sources for a statement that precipitated a million-dollar libel suit.
B. The Second Circuit United States Court of Appeals, however, despite acknowledging some constitutional implications, held that even if the First Amendment were to provide some protection, the reporter must testify when the information sought goes to the heart of the plaintiff’s claim.
Grand Jury Testimony.
A. The first Supreme Court case to consider whether the First Amendment supports a reporter’s privilege was Branzburg v. Hayes, 408 U.S. 665 (1972). The Court said:
1. At common law, the great weight of authority is that reporters are not exempt from grand jury testimony, and courts consistently refuse to recognize a reporter’s privilege to refuse to reveal confidential information to a grand jury.
2. The Fifth Amendment mandates grand jury proceedings for the institution of federal criminal prosecution. The public interest in law enforcement and in ensuring effective grand jury proceedings is sufficient to override the consequential, but uncertain, burden on newsgathering claimed by the reporters.
3. It is not suggested that newsgathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press would be eviscerated. Official harassment of the press undertaken to disrupt a reporter’s relationship with his news sources and not for purposes of law enforcement has no justification.
4. Testimony by a reporter before a grand jury involves no intrusion upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold.
5. Justice Powell wrote a concurring opinion to emphasize the limited nature of the court’s holding:
a. State and federal authorities are not free to annex the news media as an investigative arm of the government.
b. If the information sought bears only a remote and tenuous relationship to the subject of the investigation, or if such testimony will implicate confidential source relationships without a legitimate need of law enforcement, then a reporter may seek to quash the subpoena.
c. The court should judge such cases on a case-by-case basis by striking a balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.
6. The Eighth Circuit has followed Justice Powell’s concurring opinion.
Subpoenas by Criminal Defendants to the Media.
A. In criminal trials, a potential conflict exists between a criminal defendant’s Sixth Amendment right to a fair trial and a reporter’s claim to First Amendment rights to freedom of the press and testimonial privilege.
B. In re Farber, 28 N.J. 259, 394 A.2d 330 (N.J.), cert. Denied, 439 U.S. 997 (1978), the New Jersey Supreme Court stated that it follows from Branzburg v. Hayes that the obligation to appear at a criminal trial on behalf of a defendant who is enforcing his or her Sixth Amendment rights is at least as compelling as the duty to appear before a grand jury.
1. Farber refused to comply with subpoenas directing him to produce certain documents and materials complied during his investigative reporting of certain, allegedly criminal, activities. Farber’s investigations and reporting were said to have contributed largely to the indictment and prosecution of the murder defendant.
2. The trial judge entered an order directing that the subpoenaed material be produced for in camera inspection by the court.
3. The New Jersey Supreme Court stated that the in camera inspection is merely a procedural tool to ascertain the relevancy and materiality of that material. An in camera inspection is not in itself an invasion of the reporter’s privilege. Rather, it is a preliminary step to determine whether, and if so to what extent, the privilege must yield to the defendant’s constitutional rights.
4. The Court stated that reporters are entitled to a preliminary determination before being compelled to submit the subpoenaed material to a trial judge for such inspection. Once the reporter asserts the qualified First Amendment privilege, it may be overcome by the criminal defendant by showing:
a. The information sought is material and relevant to his or her defense;
b. Such information cannot be secured by any less intrusive means; and
c. Disclosure of such information is essential to protect the public’s interest, and there is a legitimate need to see and otherwise use it.
The Reporter as Plaintiff.
A. A court is more likely to require disclosure even of confidential sources when a reporter brings a suit against others.
B. In Anderson v. Nixon, 444 F. Supp. 1195 (D.D.C. 1978), the court stated that a plaintiff-reporter must reveal sources if they are central to the defense being raised. The continuing validity of Anderson was mentioned in In Re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005). Anderson stands for the following propositions:
1. The court said a reporter cannot use the First Amendment simultaneously as a sword and a shield; the reporter cannot ask for justice and deny it to those the reporter accuses.
2. The reporter was given the choice to reveal his or her sources or have the case dismissed.
Media as a Defamation Defendant.
A. In 1979, the Supreme Court said in Herbert v. Lando, 441 U.S. 153 (1979), that in a libel suit there is no absolute protection for the editorial process of the media defendant because of the burden on the plaintiff to prove "actual malice." (See Chapter 9, "Libel and Privacy.") But the court said that the material sought from a reporter or editor must be relevant to the case, and trial courts should restrict discovery where justice requires protection from annoyance, embarrassment, oppression or undue burden or expense.
In 1972, St. Louis Mayor Alfonso J. Cervantes filed a libel suit against Life Magazine and sought to identify specific F.B.I. and Department of Justice sources who had provided information for a story connecting Cervantes to organized crime. Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972). The Eighth Circuit United States Court of Appeals, applying Missouri law, held:
1. Cervantes had failed to meet his burden to establish with convincing clarity that defendants had acted with knowledge of falsity or reckless disregard of the truth. (See Chapter 9, "Libel and Privacy.")
2. Courts must first inquire into the substance of a libel allegation before ordering compulsory disclosure of sources; otherwise the fundamental principles of the First Amendment would be emasculated.
In 1984, the United States District Court for the Eastern District of Missouri (St. Louis) relied on the Supreme Court opinions in Branzburg v. Hayes and Herbert v. Lando to promulgate a three-part balancing test. Courts are to use the text in deciding whether a newsperson’s qualified First Amendment privilege against source disclosure has been overcome. Continental Cablevision v. Storer Broadcasting Co., 583 F.Supp. 427 (E.D.Mo. 1984).
1. Once the privilege has been invoked by the reporter, the individual seeking disclosure must show:
a. Efforts were made to obtain the information from other sources;
b. The only access to the information is through the reporter and his or her source; and
c. The information sought is crucial to the claim.
2. The Storer court stated that it is easier for a party seeking to overcome the privilege to do so in a criminal trial or grand jury situation, or in a civil libel case where there is a media defendant, than in a civil case where the reporter is a nonparty.
3. The court also stated that the First Amendment interest in preserving the vitality of the press is implicated any time civil litigants seek discovery or testimony from the media, regardless of whether confidential or non-confidential sources or materials are sought.
In 1997, the Missouri Appellate Court adopted the Eighth Circuit’s approach. State v. Ely, 954 S.W.2d 650 (Mo.App.W.D. 1997). The media may claim a qualified privilege against disclosure of confidential sources. Where the media is a non-party source for information, the media’s claim of privilege is at its strongest. Where the media is a defamation defendant, however, a court will balance four factors before applying the privilege: (1) whether the movant has exhausted alternative sources of the information; (2) the importance of protecting confidentiality in the circumstances of the case; (3) whether the information sought is crucial to plaintiff’s case; and (4) whether plaintiff has made a prima facie case of defamation.
A. Zurcher v. Stanford Daily, 436 U.S. 547 (1978), gives insight into the respective views of the Supreme Court and Congress regarding the protection afforded to a journalist’s notes, investigative materials, photographs and working papers.
1. In this case, a judge issued a warrant authorizing a search of The Stanford Daily after the student newspaper had published photos of a student demonstration.
2. The warrant was issued even though the newspaper’s personnel were not suspected of having committed a crime or having participated in any unlawful acts.
3. The paper and its staff brought suit against the judge and various law enforcement officials, alleging that their First and Fourteenth Amendment rights had been violated.
4. The Supreme Court said the law required only that courts apply search warrant requirements with particular exactitude when First Amendment interests might be endangered by the search.
a. Preconditions for a warrant are probably cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness.
b. If these conditions are met, there is sufficient protection for the media against any possible resulting harms.
c. Justice Powell, in his concurring opinion, asserted that there is no constitutional basis for exempting the press from the reach of a properly issued warrant.
B. Congress passed the Privacy Protection Act of 1980 to limit the impact of Zurcher on the media.
1. The statute applies to federal, state and local law enforcement agents.
2. The statute requires government officials seeking "work product materials" from news media, authors, scholars and researchers to resort first to subpoenas unless:
a. There is probable cause to believe that the person possessing the materials has committed or is committing the crime to which the materials are related; or
b. There is reason to believe that the immediate seizure of the materials is necessary to prevent the death of, or serious bodily injury to, another person.
3. Under another section of the Act, law enforcement officials are prohibited from searching for or seizing "documentary materials, other than work product materials," with four exceptions. These include the two above, plus:
a. If there is a reason to believe that by giving notice through the subpoena process the materials would be destroyed, altered or concealed; or
b. If the materials are not produced through the subpoena process and all legal appeals have been exhausted, or if there is reason to believe that further delay while the subpoena process is pursued would "threaten the interest of justice."
4. The distinction drawn between "work product materials" and "documentary materials" means that a greater degree of protection is afforded to materials generated in the news gathering and disseminating process.
a. "Documentary materials" are "materials upon which information is recorded" and include, but are not limited to, "written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes and other mechanically, magnetically or electronically recorded cards, tapes or discs."
b. "Work product materials" refer specifically to documentary materials which are "prepared, produced, authored or created" in anticipation of communicating with the public. (For example, a company’s business records are documentary materials, but a story based on those records is work product material.)
5. The Act covers persons "reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication."
6. In 1981 the United States Attorney General issued guidelines for federal searches of other persons not suspected of a crime or who are not related to a suspect. See 28 C.F.R. section 59 (1988).
7. For an example of the Privacy Protection Act of 1980 put into practice in Missouri, see Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996)(holding that an application for a search warrant need not state an exception to the Act).
8. Some states have enacted laws strengthening the provisions of the Privacy Protection Act. Missouri is not among them. (Nebraska and Illinois are among them.)
16.02 In General
(a) "Judge" means a municipal division judge, associate circuit judge, or circuit judge presiding in a trial court proceeding, or the presiding judge or justice in an appellate proceeding.
(b) "Judicial proceedings" or "proceedings" as referred to in this Administrative Rule No. 16 includes all public trials, hearings, or other proceedings in a trial or appellate court for which media coverage is requested, except for those specifically excluded by this Administrative Rule No. 16.
(c) "Media coordinator" as referred to in this Administrative Rule No. 16 includes the designees of each coordinator.
(d) "Media coverage" includes broadcasting, televising, electronic recording, or photographing of judicial proceedings for the purpose of gathering and disseminating news to the public or for the purpose of education.
(Aug. 21, 1995.)
16.02 IN GENERAL
Broadcasting, televising, recording, and photographing will be permitted in the courtroom under the following conditions:
(a) Permission first shall have been expressly granted by the judge, who may prescribe such conditions of coverage as provided for in this Administrative Rule No. 16, including the manner in which objections may be raised under Administrative Rule No. 16.03(c).
(b) Media coverage of a proceeding shall not be permitted if the judge concludes that under the circumstances of the particular proceeding such coverage would materially interfere with the rights of the parties to a fair trial.
(c) Media coverage is prohibited of any court proceeding that, under Missouri law, is required to be held in private. Further, no coverage shall be permitted in any juvenile, adoption, domestic relations, or child custody hearing. Notwithstanding the foregoing, the news media, if permitted by the judge, may record and photograph a juvenile who is being prosecuted as an adult in a criminal proceeding.
(d) Media coverage of prospective jurors, jurors, and jury selection is prohibited.
(e) There shall be no audio pickup or broadcast of conferences in a court proceeding between attorneys and their clients, between co-counsel, between counsel and the judge held at the bench or in chambers, or between judges in an appellate proceeding.
(f) There shall be no focusing on nor photographing of materials on counsel tables; however, the media will be given access during periods of recess to exhibits that have been introduced and received into evidence, absent objection from counsel in the proceedings.
(g) The quantity and types of equipment permitted in the courtroom shall be subject to the discretion of the judge within the guidelines set out in this Administrative Rule No. 16.
(h) Notwithstanding the provisions of any of the guidelines set out in this Administrative Rule No. 16, the judge, upon application of the media coordinator, may permit the use of equipment or techniques at variance therewith if the application for variance is included in the advance notice of coverage. Such variances may be allowed by the judge without advance application or notice if all counsel and parties consent to it. Ruling upon any variance application shall be in the sole discretion of the judge.
(i) If media coverage of a proceeding is granted, members of the media shall not record interviews for broadcast in the hallways immediately adjacent to the entrances to the courtroom. Photographing through the windows or open doors of the courtroom is prohibited.
(j) The judge may, as to any or all media participants, limit or terminate photographic or electronic media coverage at any time during the proceedings if the judge finds:
(1) that these guidelines or rules imposed by the judge have been violated or
(2) that substantial rights of individual participants or rights to a fair trial may be prejudiced by such manner of coverage if it is allowed to continue.
(k) The privilege of photographic and electronic coverage provided for by this Administrative Rule No. 16 may be exercised only by persons or organizations that are part of the news media or educational television.
(l) There may be media coverage of investitive or ceremonial proceedings at variance with the provisions of this Administrative Rule No. 16 in the discretion of the presiding judge or judges.
(m) No media coverage shall be permitted in criminal proceedings until the defendant is represented by counsel or has waived such representation.
(Aug. 21, 1995.)
(a) Media Coordinator. Media coordinators shall be appointed by this Court from a list of nominees provided by representatives of the media. The judge and all interested members of the media shall work, whenever possible, with and through the appropriate media coordinator regarding all arrangements for media coverage. This Court shall designate the jurisdiction of each media coordinator. In the event a media coordinator has not been nominated or is not available for a particular proceeding, the judge may appoint an individual from among local working representatives of the media to serve as the coordinator for the proceeding.
(b) Advance Notice of Coverage. All requests by representatives of the news media to use photographic equipment, television cameras, or electronic sound recording equipment in the courtroom shall be made to the media coordinator in writing at least five days in advance of the scheduled proceeding. The media coordinator, in turn, shall give notice in writing of said request to counsel for all parties, parties appearing without counsel, and the judge at least four days in advance of the time the proceeding is scheduled to begin. In addition, the media coordinator shall file a copy of the notice with the clerk of the court in the county in which the proceeding is being held. These times may be extended or reduced by court order, When the proceeding is not scheduled at least five days in advance, however, the media coordinator shall give notice of the request as soon as practicable after the proceeding has been scheduled.
(c) Objections. The judge shall prohibit the video recording, audio recording, and photographing of a participant in a court proceeding if the participant so requests and the participant is a victim of a crime, a police informant, an undercover agent, a relocated witness, or a juvenile. Upon the objection of a party, the objection of a participant, or on the court's own motion, and for good cause shown, the judge may prohibit any or all of the following, the visual identification, video recording, audio recording, or photographing of a participant in a court proceeding or any or all of the participant's testimony. At or before the commencement of the trial, the judge shall direct counsel to inform, and counsel shall inform, any witness that counsel will call that the witness will be subject to video recording, audio recording, and photographing unless the judge finds good cause to prohibit the video recording, audio recording, and photograph-ing of the witness or the witness' testimony.
(d) Dissemination of Media Coordinator Information. This Court shall establish a means by which the name and address of the media coordinators shall be disseminated among the judiciary, court personnel, and media.
(Aug. 21, 1995.)
(a) Equipment Specifications. Equipment to be used by the media in courtrooms during judicial proceedings must be unobtrusive and must not produce distracting sound. In addition, such equipment must satisfy the following criteria, where applicable:
(1) Still Cameras. Still cameras and lenses must be unobtrusive, without distracting light or sound.
(2) Television Cameras and Related Equipment. Television cameras are to be electronic and, together with any related equipment to be located in the courtroom, must be unobtrusive in both size and appearance, without distracting sound or light. Television cameras are to be designed or modified so that participants in the judicial proceedings being covered are unable to determine when recording is occurring. No modifications of existing courthouse facilities or systems to effectuate this Administrative Rule No. 16.04(a)(2) shall be required to be made at public expense.
(3) Audio Equipment. Microphones, wiring, and audio recording equipment shall be unobtrusive and shall be of adequate technical quality to prevent interference with the judicial proceeding being covered. Any changes in the existing audio systems must be approved by the judge. Microphones for use of counsel and judges shall be equipped with off/on switches to facilitate compliance with Administrative Rule No. 16.02(e). No modifications of existing courthouse facilities or systems to effectuate this Administrative Rule No. 16.04(a)(3) shall be required to be made at public expense.
(4) Advance Approval. It shall be the duty of media personnel to demonstrate to the judge reasonably in advance of the proceeding that the equipment sought to be utilized meets the criteria set forth in this Administrative Rule No. 16.04. Failure to obtain advance judicial approval for equipment may preclude its use in the proceeding. All media equipment and personnel shall be in place at least fifteen minutes prior to the scheduled time of commencement of the proceeding.
(b) Lighting. Other than light sources already existing in the courtroom, no flashbulbs or other artificial light device of any kind shall be employed in the courtroom. With the concurrence of the judge, however, modifications may be made in light sources existing in the courtroom (e.g., higher wattage light-bulbs), provided such modifications are installed and maintained without public expense.
(c) Equipment and Pooling. The following limitations on the amount of equipment and number of photographic and broadcast media personnel in the courtroom shall apply:
(1) Still Photography. Not more than one still photographer, using not more than two camera bodies and two lenses, shall be permitted in the courtroom during a judicial proceeding at any one time.
(2) Television. Not more than one television camera, operated by not more than one camera person, shall be permitted in the courtroom during a judicial proceeding. Where possible, recording and broadcasting equipment that is not a component part of a television camera shall be located outside of the courtroom.
(3) Audio. Not more than one audio system, which does not produce distracting sound, shall be set up in the courtroom for broadcast coverage of a judicial proceeding. Audio pickup for broadcast coverage shall be accomplished from an existing audio system present in the courtroom, if such pickup would be technically suitable for broadcast. Where possible, electronic audio recording equipment and any operating personnel shall be located outside of the courtroom.
(4) Pooling. Pooling arrangements shall be the sole responsibility of the media coordinator, and the judge shall not be called upon to mediate any dispute as to the appropriate media representatives authorized to cover a particular judicial proceeding. Requests for copies of audio recording, video tape or photographs shall be directed to the pool representative only, who shall supply copies upon request to media representatives at a price not exceeding actual cost.
(d) Location of Equipment and Personnel. Equipment and operating personnel shall be located in, and coverage of the proceedings shall take place from, an area or areas within the courtroom designated by the judge. The area or areas designated shall provide reasonable access to the proceeding to be covered.
(e) Movement During Proceedings. Television cameras and audio equipment may be installed in or removed from the courtroom only when the court is not in session. In addition, such equipment shall at all times be operated from a fixed position. Television tapes, still cameras and film and lenses, and audio cassettes shall not be changed within the courtroom except during a recess. Still photographers and broadcast media personnel shall not move about the courtroom while proceedings are in session, nor shall they engage in any movement that attracts undue attention. Still photographers shall not assume body positions inappropriate for spectators.
(f) Decorum. All still photographers and broadcast media personnel shall be properly attired and shall maintain proper courtroom decorum at all times while covering a judicial proceeding.
(Aug. 21, 1995.)