Cameras in the courts: rules vary but change afoot

By Hillary Brody Anchill

During Derek Chauvin’s recent trial for the murder of George Floyd in Minneapolis, news stations nationally aired footage from inside the courtroom. Those following the case came to recognize the judge, the attorneys, even some of the witnesses as they watched to see whether Chauvin would be found guilty. The same thing happened more than two decades ago with the infamous O.J. Simpson trial and the endless media coverage that coincided with the rise of 24-hour cable news stations and Court TV. Yet despite these seemingly ubiquitous courtroom scenes filling our television and computer screens, those who follow the news might also realize that for some court cases, the only imagery available is sketches drawn by artists from inside the courtroom.

Whether or not a camera, a cell phone, or a laptop is permitted inside a courtroom varies. What type of access is permitted in different courtrooms changes from state to state, and even from court to court and judge to judge. Here in Michigan, state courts – which includes the Michigan Supreme Court, the Court of Appeals, Court of Claims, and circuit and district courts – all fall under the general jurisdiction as determined by the Michigan Supreme Court. The federal courts, including the Eastern District of Michigan’s five courthouses in Detroit, Ann Arbor, Flint, Bay City and Port Huron, follow orders out of Washington, D.C. Many of these rules have not changed for decades. Or at least they hadn’t until March 2020, when courthouses, just like many businesses and schools, began to operate virtually.

The modern day media circus surrounding prominent court cases can be traced back to 1935, with State v. Hauptmann, the trial for the kidnapping and murder of aviator Charles Lindbergh’s baby. Hundreds of members of the media from all around the country were present, which some say influenced public perception, and the outcome, of the case. As a result, in 1937, the American Bar Association amended the Canons of Judicial Ethics by adopting Judicial Canon 35, recommending a prohibition on the broadcast of courtroom proceedings. Federal Rule of Criminal Procedure 53 states that “except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”

In the decades that followed, both states and the federal government tried different approaches to allow cameras in courtrooms with varying degrees of success. The 1965 Supreme Court case of Estes v. Texas determined that the presence of the media and the surrounding publicity had denied the defendant of his 14th Amendment rights to due process. The case of Chandler v. Florida in 1981 overruled Estes by saying that, with proper precautions in place to protect the parties at trial, the presence of cameras is not a 14th Amendment violation, and states could allow cameras to broadcast criminal proceedings. By the spring of 1981, 25 states allowed some form of broadcast coverage of courtroom proceedings.

Notably, Michigan was not one of them.

In the early 1990s, a three-year pilot program in select U.S. district and appeals courts across the country allowed media coverage for some civil proceedings, but ultimately, it was decided that the use of cameras could intimidate witnesses and jurors. Again, in 2011, the federal courts piloted a program in 14 courts across the country – although none in Michigan – allowing the use of cameras and video recordings in select civil cases. In a 2016 review of the program, recommendations were made to not change the policies governing cameras in courtrooms.

Ongoing pilot programs are still in existence in certain federal courts across the country as they continue to evaluate the efficacy and utility of having cameras present in courtrooms. Elected officials have also tried to enact change, including Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL), who co-sponsored the Cameras in the Courtroom Act, which they introduced to the Senate on March 17, 2021. The bill requires the U.S. Supreme Court to permit television coverage of all open sessions in the court unless it decides by a majority vote that allowing such coverage would violate the due process rights of any of the parties involved. The Sunshine in the Courtroom Act of 2021, introduced at the same time, is a similar bill for the lower federal courts. Noted Durbin, “It’s time to put cameras in the Supreme Court so Americans can finally see deliberations and rulings on cases which will affect them for years to come. This bipartisan bill shines a light into the judicial branch of government so more than just a few hundred lucky Americans can watch proceedings in the court’s historic halls.” These bills had also been introduced in previous years.

While courts have grappled with changing technologies for decades, in Michigan’s courts the table was slowly being set at the beginning of 2020 for new standard procedures around the most ubiquitous technological device, cell phones. In January 2020, the Michigan Supreme Court issued an order that as of May 1, 2020, the general public could bring handheld electronic devices (i.e. cell phones) into courtrooms, which amended a rule that had allowed individual courts to set their own policies. This included the acknowledgement that “all cell phones must be assumed to have cameras,” although the use of those cameras was prohibited. At Oakland County Circuit Court in Pontiac, or the 36th District Court in Detroit, judges and lawyers alike describe how prior to this order, there was an omnipresent sound of trees and bushes ringing outside the courthouse by those who had stashed their phones before going inside. Macomb County Circuit Courts had allowed cell phones since 2013, further confusing the issue. This change was a “fundamental access to justice issue,” according to Michigan Supreme Court Chief Justice Bridget McCormack, who described that, as the majority of people are coming to court without a lawyer, having their cell phones is critical “access to whatever is relevant – photos or notes. Or it could be the only way to get an Uber home.”

Access to justice became a prevailing theme when the COVID-19 pandemic abruptly closed courthouses throughout Michigan in March 2020. While businesses were closed, however, the justice system, for everything from divorce cases to landlord-tenant issues to criminal indictments, couldn’t wait. An industry that had been immune to innovation, that had operated in more or less the same fashion with a judge presiding over a courtroom with defendants and attorneys on each side, suddenly had to figure out an entirely new way of conducting business. Noted McCormack, “there has been more change in the past 18 months than we’ve seen in 10 decades. It wasn’t the disruption we wanted, but it was the disruption that we needed.”

Michigan was in a unique position compared to many other states in that, in a prescient move, the Supreme Court had already purchased polycom units for every courtroom in the state, allowing them all to conduct remote hearings. Additionally, the judges all had Zoom licenses before the pandemic, and, says McCormack, “they all had the hardware to be able to start remote hearings on the Zoom platform right away.”

However, for many judges, having the hardware did not necessarily make for a seamless transition.

“We basically had to stitch together a process that allowed us to function. There was no preparation,” recalls Chief Judge of the 45th District in Oakland County, Michelle Friedman Appel. Appel, who represents the Charter Township of Royal Oak, Oak Park, Huntington Woods and Pleasant Ridge, and serves as the president of the Michigan District Judges Association, describes an overburdened system. “Our staff didn’t know how to run Zoom. Initially, I was trying to do the Zoom myself, to maintain the waiting rooms, the breakout rooms, as well as presiding by Zoom. … We had one clerk coming in just to deal with Zoom, and we had to cut back all of our dockets because we only had one clerk who knew how to do this.”

These problems were not isolated to the first few months of 2020. “There’s still technological challenges. My court reporter does not get a good record. Additionally, the challenge to the participants in our court is significant,” she noted.

At the federal level, it took the passage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act to allow the judiciary to ask criminal defendants if they would participate through video teleconferencing for some proceedings.

United States District Judge Terrence G. Berg, who is chair of the court’s public access subcommittee, made note of the distinction.

“The federal system has different rules from the state system regarding the use of cameras in the courtroom,” Berg said. “That whole issue is separate from the question of using the Zoom technology to conduct motions, hearings, and evidentiary hearings and even trials because those aren’t in the courtroom.”

In April 2021, a year into the pandemic, the U.S. District Court for the Eastern District of Michigan reported that more than 6,000 criminal arraignments, plea hearings, sentencings, and other proceedings in criminal and civil cases had taken place remotely.

Judges and attorneys alike describe spotty internet connections, dropped cell phone calls, and participants videoing in from cars and bathrooms as common themes that have not abated over the past year and a half. They do, however, see a place for the continued use of Zoom for short scheduling conferences, hearings that are just between attorneys, and other brief status updates. Not only can an attorney be in multiple courts in a single day, but the cost savings to clients – who traditionally are billed for commute time in addition to the actual time spent in front of a judge – cannot be overstated, reflected Birmingham family law attorney Jessica Woll.

For other matters, there are mixed opinions as to what should be done in person as courts open back up in the latter part of 2021. Karen McDonald, Oakland County prosecutor and former Oakland County Circuit Court judge, has the unique perspective of understanding the pros and cons from both sides of the bench.

“When there are hearings or short status conferences, and it's mainly the contributions from lawyers, I think Zoom is not only better from a public health perspective, it’s more efficient,” McDonald said. “In that way, I’m all for it. However, when you are talking about proceedings that deal with or rely on testimony from witnesses, and in particular victims of crimes, I think it’s problematic and not in our best interest as prosecutors. We have these instances where we can’t really be certain who is with a witness who is testifying over Zoom, who might be trying to influence or threaten a victim of a crime. These things are impossible to assess through a screen. I would argue that a person’s credibility, which is critical to what kind of witness they are, is not fully ascertainable through a screen.” She cites concern for victims of domestic abuse in particular.

At the same time, “if the matters rely only on lawyers’ arguments or cases that are not contentious and don’t have any of these concerns, Zoom actually gives people access to judges that they wouldn’t have had before.”

Oakland County Circuit Court Judge Jacob Cunningham, who works in the family division, echoes McDonald’s views, and was one of the first judges to bring cases back to the courtroom during the pandemic. “Credibility matters. One of the things I’m supposed to do is judge credibility and figure out who’s being truthful and who’s not, and I find that really difficult to judge on Zoom. In terms of judging credibility, there’s physical and non-verbal cues that you pick up from body language, even eye movement, how they’re interacting with other people. Even if they’re wearing a mask [in the courtroom], and you lose the south half of their face, so to speak, there is something about that direct, in-person communication. … When you’re actually witnessing a conversation with a lawyer and a witness, even with masks, you can hear the inflection of voice, see where their eyes are moving, the shift in the chair that you might not be able to see on Zoom. You don’t know how that temporal delay with technology factors into how they’re answering a question.”

Whether taking place in person or remotely, all of these testimonies, interviews, and meetings are taking place before a case ever makes it to its newsworthy conclusion, a trial. Only about two percent of all cases end up at trial, but even those small numbers have been paused since the start of the pandemic, with courts struggling as to how to bring large numbers of people together safely in one court. The federal courthouse in Detroit has conducted two remote trials since March 2020, both for civil, as opposed to criminal, cases. One, a bench trial, meaning there was no jury, “was a lot easier to control because it was a simple Zoom hearing. The jury trial we knew was not going to be an easy task because you can’t control what kinds of internet service people have at home, if they have internet at all,” described Josh Matta, information technology manager for the U.S. District Court for Eastern Michigan. Now that the courthouse is open again, however, “we’re doing trials on a very restrictive basis because of all of the safety protocols,” which includes seating jurors distanced throughout the gallery instead of in the juror box and using another courtroom for jury deliberations because the jury rooms are too small to allow for social distancing. Cameras are not permitted, but media can hire sketch artists.

The 45th District Court in Oakland County has not held any trials since the beginning of the pandemic, mainly due to the lack of available space. Judge Appel said that some courts have used high school auditoriums, but that means installing security, recording equipment, and staffing this new space. She feels for the defendants caught in limbo. “It means they’re waiting. It means evidence goes stale. It means they have this hanging over their head. But as long as the numbers [of COVID cases] stay the way they are, we’re not in a position to do it.”

One of the tenets of the American justice system is the public access to the courts. Prior to the pandemic, anyone – whether they had a vested interest in a particular case or was simply curious about the way the courts worked – could go and watch a court hearing in person. Additionally, in Michigan state courts, if a news station wanted to record footage of the court proceedings, they could do so with the permission of the judge. Milton L. Mack, Jr., state court administrator emeritus and former Wayne County probate judge, describes the utility of allowing cameras in courtrooms. He recalls Channel 7 (WXYZ) wanting to film a mental health case over which he presided. At first, Mack says, he remembered thinking that it was “kind of personal, but then I decided, the public should see this. The public should see how bad this is.”

An investigative reporter turned it into a series, making frequent appearances in his courtroom. This turned into a series called “Waiting for Disaster,” and Mack participated in a governmental working group to help fix many of the laws that the cases exposed.

With the exception of very high profile court cases, however, media inquiries are rare and very few members of the public appeared in person in a courtroom. One notable change as hearings transitioned to the internet, though, was the availability and access for the general public to log in and watch cases from their homes.

Michigan Supreme Court Chief Justice McComack acknowledges that very few people are watching routine court cases that are live streamed on YouTube, which has served as a temporary repository for Michigan’s court cases. However, for cases like those this past year that involved election security and Governor Gretchen Whitmer’s emergency powers, “there were more than 8,000 people watching the livestream at one point. I think that’s great. The court belongs to the people. I am firmly of the view that the more people who can see what happens in court cases, the better.”

As of May 2021, Michigan courts had logged more than three million hours of Zoom hearings, and YouTube videos from Michigan courts had been viewed nearly 38 million times.

Keeping Zoom access public, while simultaneously protecting the integrity of the case, remains an ongoing challenge. Described Oakland County Circuit Court Judge Cunningham, “My personal thought was we have to maintain the same level of access to the courtroom as pre-pandemic. If you wanted to watch court or know what happened in a court case prior to March of 2020, you had the options of either coming to court, driving and seeing the proceedings happen live, or ordering the transcripts after the fact…. I think it’s appropriate to be able to sign onto the Zoom when it’s happening or order the transcript later. I had a lot of concerns, as did many judges, about the whole notion of uploading things. … I also had concerns about the nature of the dockets I have being uploaded to YouTube.”

He describes young children with access to iPhones and YouTube learning about their own family’s divorce proceedings or guardianship claims, or using it in nefarious ways to antagonize classmates. While the cases uploaded to YouTube are there for only 24 hours, not indefinitely, “people can manipulate, record, screen share. They can do a lot more things with that time and with that access than they could have before the pandemic.”

Additionally, while anyone with the Zoom link can login to watch a hearing, most of the judges describe pausing when someone joins the call to acknowledge the person. They will be asked to turn their video on if it is not already, and judges will ask the attorneys if they recognize the person. This minor disruption is no different than when someone walks into a physical courtroom, allowing the attorneys, witnesses, and the court staff to see who the person is. On Zoom, they say they will remove those who are noncompliant.

As courts around the state now toggle back and forth between in-person and remote proceedings – sometimes from the same day in the same courtroom – a new set of norms are being established. “We’re taking public comment from judges, lawyers, the public, and trying to see what we can learn from jurisdictions across the country who might have better data so that we can make smart decisions about what the next phase of our industry looks like,” comments McCormack.

In October 2021, the Michigan District Judges Association issued an online survey to all district judges, the primary purpose of which was to gather information regarding “their experiences with implementing remote court proceedings under emergency order and their opinions and attitudes toward the prospect of a more permanent adoption of remote and virtual proceedings under court rule.” One hundred thirty-two out of approximately 255 judges responded to the survey. Survey results indicate that the majority of judges have not found “the use of remote technology as generally advancing the interests and increased access to the judicial system.” However, as with judges across courts, a majority of district judges did indicate that they are in favor of “some version of the ‘remote’ option,” when it comes to informal hearings that does not “require the taking of testimony or the issuance of a final disposition.”

Berg, of the federal court, notes that the “one thing I think probably every judge will say is that they have found the video teleconferencing technology to be incredibly helpful and useful in conducting all types of court hearings, such as arguments, motions, and even evidentiary hearings. The convenience for the parties and for the lawyers has just been a real gift to the system. That, I think, is something we’re going to be seeing going forward even when the courthouse opens 100 percent. … Do we still want to have Zoom technology available for court proceedings even when the court is open again? I don’t know what the answer will be, but I think they will allow it unless there is a national law adopted that prevents it. Now criminal proceedings, especially trials, you just cannot do that using the technology because of the Sixth Amendment right to confrontation. You have a right to see them, to question them, look at them. This is part of the Constitution.”

Additionally, he says, “I think the criminal process loses some of the dignity, the solemnity, the seriousness, the respect for the individual that arises when everyone is present.”

Longterm, says McCormack, “I think the more people who see how our courts work, the more confidence they’ll have in the branch. I think the gains in terms of access to justice and transparency are once in my lifetime gains.”