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SUNSHINE IN THE COURTROOM ACT OF 2007 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

ON

H.R. 2128 

SEPTEMBER 27, 2007 

Serial No. 110–160 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 27, 2007 

Page 

THE BILL 

H.R. 2128, the ‘‘Sunshine in the Courtrom Act of 2007’’ ...................................... 3 

OPENING STATEMENTS 

The Honorable William D. Delahunt, a Representative in Congress from 

the State of Massachusetts, and Member, Committee on the Judiciary ......... 1 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 8 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Member, Committee on the Judiciary .......................................... 9 

WITNESSES 

The Honorable Ted Poe, a Representative in Congress from the State of 

Texas 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 13 

The Honorable John R. Tunheim, Judge, U.S. District Court for the District 

of Minnesota, on behalf of the Judicial Conference of the United States 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 18 

The Honorable Nancy Gertner, Judge, U.S. District Court for the District 

of Massachusetts 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 40 

Mr. John C. Richter, U.S. Attorney, Western District of Oklahoma 

Oral Testimony ..................................................................................................... 44 

Prepared Statement ............................................................................................. 46 

Ms. Susan M. Swain, President and Co-Chief Operating Officer, C-SPAN 

Oral Testimony ..................................................................................................... 80 

Prepared Statement ............................................................................................. 82 

Ms. Barbara Cochran, President, Radio-Television News Directors Association 

Oral Testimony ..................................................................................................... 95 

Prepared Statement ............................................................................................. 96 

Mr. Fred Graham, Senior Editor, Court TV 

Oral Testimony ..................................................................................................... 99 

Prepared Statement ............................................................................................. 100 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 131 

(1) 

SUNSHINE IN THE COURTROOM ACT OF 2007 

THURSDAY, SEPTEMBER 27, 2007 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

WASHINGTON, DC. 

The Committee met, pursuant to notice, at 1:13 p.m., in room 

2141, Rayburn House Office Building, the Honorable William D. 

Delahunt (acting Chair) presiding. 

Present: Representatives Delahunt, Sutton, Davis, Smith, Coble, 

Gallegly, Chabot, Keller, Issa, Forbes, King, Franks, Gohmert, and 

Jordan. 

Staff present: Diana Oo, Majority Counsel; Michael Volkov, Minority Counsel; and Matt Morgan, Majority Staff Assistant. 

Mr. DELAHUNT. [Presiding.] The Committee will come to order. 

And without objection, the Chair is authorized to declare a recess. 

Since 1946, photographing and broadcasting of Federal District 

Court criminal and civil proceedings have been prohibited by a directive of the Judicial Conference. Federal appellate courts, in contrast, have been authorized by the conference to use their discretion in determining whether to allow electronic media coverage of 

appellate arguments. 

Currently, only the 2nd and 9th Circuit Courts of Appeals permit 

cameras in their courtroom. In recent years, however, there has 

been growing public interest in having all Federal judicial proceedings televised, which may reflect a greater general desire for 

transparency as well as heightened interest in certain well-publicized cases. 

Today’s hearing provides an opportunity for us to consider H.R. 

2128, the ‘‘Sunshine in the Courtroom Act of 2007,’’ which would 

allow the presiding Federal District Court or appellate court judge 

to permit electronic media coverage of court proceedings. 

I would like to acknowledge my friend, Steve Chabot, for his 

leadership on this issue—and he has joined us on the dais—and for 

closely working with myself and others to get us to this point. 

It is my hope that this hearing will shed some sunlight on the 

following issues. 

First, would this measure help promote greater understanding of 

the judicial process by the public by making it more transparent? 

It is vital to our democracy that the public understand the critical 

role that our Federal judicial system plays in our system of open 

Government with respect to protecting the rights of all citizens. 

Greater transparency also helps enhance the public’s trust and conVerDate Aug 31 2005 14:09 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\FULL\092707\37979.000 HJUD1 PsN: 37979
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fidence in the judicial process. As Judge Louis Brandeis once said, 

‘‘Sunshine is the best disinfectant.’’ 

Second, would the measure grant access to Federal judicial proceedings in a way that promotes fairness? Many believe that the 

constitutional right to a fair trial requires that all court proceedings be open to the public, including the press. They cite, for 

example, the Supreme Court’s ruling in Richmond Newspapers v. 

Virginia, which held, ‘‘The right to attend criminal trials is implicit 

in the guarantees of the First Amendment.’’ Similar statements 

could be made with respect to civil trials. 

Third, would the measure undermine due process and privacy 

rights of participants in Federal judicial proceedings by opening 

them to intrusive electronic media? We should be appropriately 

careful that media coverage of these proceedings not impair the 

fundamental right of a citizen to a fair and impartial trial. 

The prospect of public disclosure of all personal information may 

have a material effect on our individual’s willingness to testify or 

place an individual at risk of being a target for retribution or intimidation. Likewise, the safety and security of our judges, law-enforcement officers, and other participants in the judicial process 

should not be jeopardized. Accordingly, we should take all proper 

precautions to ensure that the privacy of all participants in the judicial process is appropriately protected. 

I look forward to having an informative and illuminating discussion on the advantages and disadvantages of electronic media coverage of our court proceedings. 

[The bill, H.R. 2128, follows:] 

3 


2128-1.eps
4 


2128-2.eps
5 


2128-3.eps
6 


2128-4.eps
7 


2128-5.eps
8 

Mr. DELAHUNT. I would now recognize the Ranking minority 

Member of the full Committee for his opening statement, Mr. 

Lamar Smith. 

Before I do, and for those of you who are frequently in attendance at these hearings, I am not Chairman John Conyers. 

With that, Mr. Smith? 

Mr. SMITH. All right. Thank you, Mr. Chairman. 

First of all, it is nice to have my friend from Massachusetts serving as Chairman of the hearing today, and I ought to point out he 

is serving as Chairman of a hearing in which we have had the largest number of witnesses that we have had all year long, I believe. 

So you all are setting some kind of a record here today. 

I also, Mr. Chairman, want to thank all my colleagues on this 

side of the podium for their conscientious attendance today, and, 

Mr. Chairman, we will do our best to restrain ourselves from offering any motions that would in any way delay the hearing today. 

But I do appreciate the good attendance on this side. 

Mr. Chairman, I appreciate having today’s hearing to examine 

the issue that you have mentioned. Legislation to authorize television cameras in the Supreme Court, Appellate Courts and District Courts do raise many questions. For example, does placing 

cameras in Federal courtrooms trivialize and commercialize what 

is a serious and often personally stressful time? 

The Judicial Conference cites the potential harm to the judicial 

system after studying this subject for years in a variety of contexts. 

By and large, they feel cameras in the courtroom are incompatible 

with the administration of justice. 

Some judges are concerned about protecting each citizen’s right 

in a fair and impartial legal setting. They do not want to sacrifice 

this duty on the altar of media curiosity. They argue that the right 

to justice in a courtroom, especially at trial, distinguishes the use 

of cameras in a judicial setting from their use in legislative, administrative and ceremonial proceedings. 

So how could a television camera compromise a fair trial? Some 

lawyers and judges are no less likely to play to the cameras than 

some Members of Congress. Of course, I do not have anybody specifically in mind. Others, like witnesses, might be intimidated by 

the camera. Either outcome—grandstanding or intimidation—could 

diminish the ability of a court to seek the truth and administer justice. 

There are also significant safety concerns. Judges, prosecutors, 

court reporters, courtroom deputies, jurors, witnesses and even law 

clerks could be identified during televised broadcasts. These men 

and women could easily become targets for attempts to influence 

the outcome of the trial or the object of retribution for an unpopular ruling. 

The public has a right to know what is said and what happens 

in courtrooms, and, for more than 200 years, the media has provided the public with in-depth coverage of judicial events. A zone 

of privacy should be considered out of respect not only for the 

plaintiffs and defendants, but also for the dignity and decorum of 

the courtroom itself. 

I know the intent of the supporters of this legislation is to create 

greater transparency in the Federal judiciary. Their motives are 

9 

worthy, particularly the motives of my colleague, Steve Chabot, on 

the Committee here and my colleague from Texas, Ted Poe. Nevertheless, this legislation, in my judgment, does have the potential to 

weaken our court system by denying litigants and the public fair 

trials and just outcomes. 

Mr. Chairman, I look forward to hearing from all of today’s witnesses, and I will yield back the balance of my time. 

Mr. DELAHUNT. I thank the gentleman for yielding. 

And I would call upon my colleague, the primary sponsor of this 

legislation with whom I have worked for several years now, the 

gentleman from Ohio, Mr. Chabot. 

Mr. CHABOT. Thank you very much, Mr. Chairman, and I want 

to commend you for the wisdom contained in your opening statement. I thought it was well thought out, well reasoned, well delivered and agreed with you in toto. 

Mr. DELAHUNT. I thought it was pretty good myself, Steve. 

[Laughter.] 

Mr. CHABOT. And I would like to thank the distinguished Chairman and the Ranking Member for agreeing to hold this hearing, 

and this is one of the very few things that I think the Ranking 

Member of this Committee and I just do not see eye to eye on, but 

most things we do. This is just one we differ on. 

I would also like to thank Mr. Delahunt, as I said, for his support and leadership on this bill. We have worked together on this 

for more years than I would like to admit at this point in time, but, 

eventually, we will get there. Whether it will be this Congress or 

not remains to be seen, but there is no question in my mind that 

ultimately cameras will be permitted within the Federal courts all 

the way up to the U.S. Supreme Court, as far as I am concerned, 

and should be, and I know Congressman Poe, former Judge Poe, 

will be speaking about that here shortly. 

During the markup of H.R. 660, the Court Security Improvement 

Act of 2007, concern was expressed about the lack of process that 

this particular bill, the Sunshine in the Courtroom Act of 2007, had 

received during this particular Congress. Although this bill has either been introduced or offered as an amendment at least since the 

105th Congress, which is, you know, 10, 11 years ago, I think holding this hearing today is important, and I will make my remarks 

relatively brief here. 

As I have said on each of the other occasions, hardworking, taxpaying citizens have the right to see their Government at work. 

The bill that we are examining today, H.R. 2128, would extend this 

policy to the Federal courts by giving Federal appellate and district 

court judges the discretion—and let me repeat that—the discretion—to allow media coverage of courtroom proceedings. 

It does not make the judges do it. It says they have the discretion, if they deem it to be appropriate. And some, obviously, still 

oppose that, but I want to emphasize this does not force the cameras in the courtroom. The judge has discretion over that. 

At the same time, this bill incorporates the necessary safeguards 

to ensure that due process rights are preserved. That request by 

nonparty witnesses to disguise their features and voices are granted—I believe that was Mr. Nadler that suggested that, and we 

10 

agreed with him and complied with that—and that televising of 

any juror is prohibited. 

In addition, the discretion provided to Federal judges under this 

amendment expires at the end of 3 years—and I do not recall the 

Member that suggested that. It might have been Mr. Coble, but it 

was somebody that suggested 3 years, so we incorporated that as 

well—allowing us to revisit, to make any changes, if necessary. 

So, if any of the horrors that some folks think could occur if we 

put cameras in the Federal courtrooms occur, we can always go 

back and undo the damage that we have done. Now I do not think 

there is going to be a bit of damage, but, nonetheless, there is that 

safeguard in case of the slight chance that something goes wrong. 

And, again, let’s remember in the House and the Senate, none 

of us was on television, and we are just as pompous on TV or off 

TV. I do not think it has made a bit of difference. I think my colleague here mentioned the Senate, but I have to say the House 

Members are—— 

Mr. ISSA. That is an—— 

Mr. CHABOT. I guess they do. 

But there is no doubt that trials are public events. In Craig v. 

Harney, the Supreme Court held that, ‘‘A trial is a public event. 

What transpires in the courtroom is public property.’’ 

Although the Judicial Conference guidelines currently prohibit 

cameras in Federal district courts, every State allows for some form 

of cameras in the courtroom. They do not in the District of Columbia, but every State, all 50, do. 

I believe that it is good public policy for Congress to facilitate 

through media access to the courts the ability of citizens to exercise 

their freedom of speech, freedom of press and their right to petition 

the Government for redress of grievances, the very rights acknowledged by the Supreme Court in Harney. 

Lifetime tenure for unelected officials conveys a tremendous 

amount of power. Why shouldn’t our constituents be allowed to observe the conduct of Federal judges and their proceedings from 

their homes or from work? Why should citizens be forced to rely on 

the news media to interpret and filter the proceedings when cameras would allow citizens to watch and interpret for themselves? 

As a co-equal branch of the Federal Government, the Federal judiciary has a responsibility to those who appear before it and to the 

public. The judiciary is not above the other two branches, nor 

should it be treated that way. The citizens of this Nation have the 

right to see how our Federal courts conduct business. 

I look forward to hearing from our witnesses today, and I, again, 

want to thank both the Chairman and the Ranking Members for 

giving us the opportunity. 

And I yield back the balance of my time. 

Mr. DELAHUNT. Thank you, Mr. Chabot. 

And without objection, other Members’ opening statements will 

be included in the record. 

We have a distinguished group of witnesses before us today. 

Our first witness is Congressman Ted Poe who is a second-term 

Republican from Southeast Texas, Second Congressional District. 

As an Assistant District Attorney for 8 years, he tried hundreds of 

cases, including capital cases, and never lost a jury trial. 

11 

Well done, Congressman Poe. 

Later as a judge, he garnered national media attention for his 

‘‘poetic justice’’ in sentencing criminals. His innovative punishments included ordering thieves to carry signs in front of the stores 

from which they stole. 

I understand that the congressman has a busy schedule today. 

For those of you that are unaware, he also is a congressional delegate to the United Nations, which is a very demanding responsibility and task. So what I am going to do is to recognize Congressman Poe now to make his statement, and it is my understanding 

that after he concludes his statement, he will ask to be excused. 

Congressman Poe? 

TESTIMONY OF THE HONORABLE TED POE, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. POE. Thank you, Mr. Chairman. 

And as the other United Nations delegate from Congress, I appreciate the opportunity to address this panel. 

Americans have the right to a public trial. The right dates back 

to the founding of this Nation, and it is based on our values of fairness and impartiality. 

The more open and public a trial is, the more likely justice will 

occur. I believe this theory. That is why we do not have the secret 

Star Chamber in the United States. The right to a public trial is 

reserved for a defendant, but the public sees it as their right to be 

informed as well. Cameras enhance the concept of fairness and 

openness in a courtroom. 

Any American can walk into a courtroom to observe the proceeding, but if the person does not physically fit inside the courtroom, that person is denied the ability to see and observe the same 

proceeding. That does not make sense. Placing a camera in the 

courtroom would allow the trial to be more public just like a trial 

is supposed to be. 

While Federal court hearings are open to the public, not everyone 

can attend a court hearing. This is certainly true of appellate and 

Supreme Court hearings. Because of the impact of the United 

States Supreme Court’s rulings on all Americans, those proceedings 

especially should be filmed. 

Probably of all court proceedings, the Supreme Court proceedings 

are the most misunderstood by the public, and the Supreme Court 

should make that decision whether to be filmed or not in their discretion. It is time to allow cameras in our Federal courts, of course, 

at the discretion of those Federal judges. 

I personally know how important it is to make a courtroom and 

the proceedings and trials accessible by camera to the public because I did it. For 22 years, I served as a State felony court judge 

in Houston, Texas. 

I heard over 25,000 felony cases and presided over a thousand 

jury trials. I was one of the first judges in Texas to allow cameras 

in the courtroom. I tried violent cases, murder cases, corruption 

cases, undercover drug cases and numerous gang cases. 

I had certain rules in place when the camera filmed in my courtroom, and the media followed the rules, including Court TV, who 

is here today. Court TV successfully aired an entire capital murder 

12 

trial in my courtroom. My rules were simple: No filming of sexual 

assault victims or children, never the jury or certain other witnesses, such as informants. The unobtrusive camera filmed what 

the jury saw and what the jury heard. 

After the trial, jurors even commented and liked the camera inside the courtroom because they wanted the public to know what 

they heard instead of waiting to hear a 30-second sound bite from 

a newscaster who may or may not have the facts correct. 

Those who oppose cameras in the courtroom argue that lawyers 

play to the camera. No, lawyers do not play to the camera. Lawyers 

play to the jury, and they always have done so, with or without a 

camera in the courtroom. I know I played to the jury for 8 years 

as a prosecutor. 

I am not an academic, but I have spent 30 years in the courtroom as a trial prosecutor and a trial judge, and I tried and heard 

the most serious of all crime. Sometimes those who oppose cameras 

in the courtroom argue that it infringes on the defendant’s right. 

When I was Assistant District Attorney, I spent my career trying 

criminal cases, and based on my experiences, I actually feel the 

cameras in the courtroom benefit a defendant. A public trial ensures fairness. That is the purpose of a public trial. It ensures professionalism by the lawyers and the judge, and a camera in the 

courtroom protects the defendant’s right to a public trial. 

Some members of the bar and judges may not want the public 

to see what is going on inside the courtroom because they do not 

want the public to know what they do in the courtroom. Candidly, 

maybe those people should not be doing what they are doing if they 

do not want the public to see it. 

A camera reveals the action of all participants, and if a judge 

feels that filming a terrorist prosecution or some other prosecution 

involving classified information that assists our enemies or terrorists, the judge can always prohibit the filming of that trial. 

If the judge fears that any trial participant’s safety is at jeopardy 

or the identity of an undercover agent or security personnel will be 

revealed by filming a proceeding, the judge can act to disguise that 

testimony or refuse filming for that trial. I had the same situation 

when I had undercover agents, such as the DEA, and informants 

testify in my courtroom. It is discretionary on how the judges handle filming in the courtroom. 

The public has a right to watch courtroom proceedings and trials 

in person. Americans should not be deprived of this right to know 

just because they cannot physically sit inside the courtroom and 

hear those proceedings. 

Mr. Chairman, I think we have the best justice system in the 

world. We should not hide it. Many times citizens wonder why certain things happen in courts and why the results turned out like 

they did. Openness, transparency and cameras will help educate 

and inform the public that still continues to be enthralled with the 

American court system. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Poe follows:] 

13 

PREPARED STATEMENT OF THE HONORABLE TED POE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS

Americans have a right to a public trial. This right dates back to the founding 

of this nation and it is based on our values of fairness and impartiality. The more 

open and public a trial is, the more likely justice will occur. That’s why we don’t 

have the secret STAR Chamber in America. Cameras enhance this concept of fairness and openness. This is a right reserved for defendants, but the public sees it 

as their right to be informed. 

Any American can walk into a courtroom and observe the proceeding. But if a person does not physically sit inside the courtroom, that person is denied the ability 

to see and observe the proceeding. This does not make sense. 

Placing a camera in the courtroom would allow a trial to be public, just like a 

trial is supposed to be, for those who cannot actually sit inside of the courtroom to 

witness the proceedings. Because of the impact that the United States Supreme 

Court’s rulings have on all Americans, those proceedings especially should be filmed. 

While federal court hearings are open to the public, not everyone can actually attend a court hearing. This is certainly true of appellate and Supreme Court hearings. It is time to allow cameras in our federal courts, at the discretion of the federal 

judges. 

I personally know how important it is to make courtroom proceedings and trials 

accessible by camera to the public because I did it. For 22 years, I served as a Harris County Felony Court Judge in Texas. I heard over 25,000 cases and presided 

over 1,000 jury trials. I was one of the first judges in Texas to allow cameras in 

my courtroom. We generally used one camera—out of view to the jury—and it was 

a shared feed for all other news sources, including documentaries and law schools. 

The camera that I had in my courtroom was just like the one inside this room. 

No one here notices the camera—the cameras today are small and unobtrusive. It 

does not interfere with this Committee’s proceedings. It does not make the Members 

pander to the camera. But the camera allows the public to witness the proceedings 

when they are not able to sit inside the room. 

I had certain rules in place when a camera filmed my courtroom. The media always followed the rules that I ordered, including Court TV, who is here today. Court 

TV successfully aired an entire capital murder trial in my courtroom. My rules were 

simple—no filming of sexual assault victims, children, the jury, or certain other witnesses. The camera filmed what the jury saw and heard. 

After trials were completed, the jurors and criminal parties were asked their 

thoughts on the camera inside the courtroom. There was almost total universal approval of the camera. It made the trial fair. Juries especially liked the camera inside 

the courtroom because they wanted the public to know what they heard instead of 

waiting to hear a 30 second sound-byte from a newscaster, who may or may not 

have gotten the facts straight. 

Those who oppose cameras in the courtroom argue that lawyers will play to a 

camera. No, lawyers don’t play to a camera. Lawyers play to the jury and they have 

always done so with or without a camera in the courtroom. I know I played to the 

jury in my 8 years as a prosecutor. 

Those who oppose cameras in the courtroom may also argue that it will infringe 

on a defendant’s rights. Before my 22 years on the bench, I was an assistant district 

attorney. I spent my career in criminal law. Based on my experiences, I know that 

cameras in the courtroom benefit a defendant. A public trial ensures fairness. It ensures professionalism by the attorneys and by the judge. A camera in a courtroom 

protects a defendant’s right to a public trial. 

Some members of the bar and judges may not want the public to see what is going 

on inside the courtroom because they don’t want the public to know what they do 

in the courtroom. Candidly, maybe these people shouldn’t be doing what they are 

doing if they don’t want the public to know. A camera reveals the action of all participants in a trial. 

The public has a right to watch courtroom proceedings and trials in-person. Americans should not be deprived of this right just because they cannot physically sit inside of the courtroom during the proceedings. 

We have the best justice system in the world. We should not hide it. Many times 

citizens wonder why certain things happen in courts and why the results turned out 

the way they did. Openness, transparency, and cameras will help educate and inform a public that still continues to be enthralled with the American court system. 

And that’s just the way it is. 

Mr. DELAHUNT. Thank you, Congressman Poe. 

14 

And let me acknowledge that your testimony was compelling, 

and I am sure it will go a long way to influence Members of this 

Committee, particularly your fellow Texans. [Laughter.] 

I presume that you have other business to attend to, so—— 

Mr. POE. That is correct, Mr. Chairman. 

Mr. DELAHUNT. If you wish to depart, now would be an appropriate time. 

Mr. POE. Thank you. 

Mr. DELAHUNT. Speaking on behalf of the Judicial Conference of 

the United States is Judge John Tunheim. He has been on the District Court for the District of Minnesota since 1995. 

He is also the chair of the Judicial Conference Committee on 

Court Administration and Case Management. He previously served 

as Chief Deputy Attorney General of Minnesota and, prior to that, 

as the State’s Solicitor General. Previously, he worked in private 

practice. 

Welcome, Judge Tunheim. 

Next, we have Judge Nancy Gertner who serves on the U.S. District Court for the District of Massachusetts following a 20-year career as a criminal defense lawyer and civil rights activist. The Massachusetts Lawyers Weekly has listed her as one of the most influential lawyers in the past 25 years, and I can corroborate that 

ranking. 

She has been a star during her practice as a prominent criminal 

defense lawyer as well as a judge on the Federal District Court. 

She commands respect from every member of the bar in Massachusetts. She has written widely on a number of legal issues, including 

constitutional law, criminal law and reproductive rights. Her book, 

‘‘The Law of Juries,’’ was published in 1997. She has taught sentencing at Yale Law School since 1998. 

Welcome, Judge Gertner. 

Next, speaking on behalf of the U.S. Department of Justice, we 

have John Richter, the U.S. Attorney for the Western District of 

Oklahoma. Mr. Richter leads a team of nearly 40 in civil and criminal cases in areas ranging from narcotics trafficking to child pornography. 

Previously, he served as the Acting Assistant Attorney General 

for the Criminal Division of the Department of Justice and, prior 

to that, as a commissioner on the U.S. Sentencing Commission. 

Welcome, Mr. Richter. 

Next is Susan Swain, president and co-chief operating officer of 

C-SPAN, the Nation’s eighth largest cable television network. 

Along with helping to run the network, she has been an on-air 

interviewer for C-SPAN for 20 years. 

It is nice to see you in person, Ms. Swain. 

She is also a regular moderator of Washington Journal, the Nation’s famous morning call-in and interview program and one is 

that is avidly watched by all Members of Congress to find out what 

is happening. She has also been involved in the creation of CSPAN’s history series, helped launch Book TV in the Washington 

Journal and overseas content on C-SPAN Radio. 

Welcome, Ms. Swain. 

Our next witness is Barbara Cochran, president of the Radio-Television News Directors Association and Foundation. Previously, she 

15 

was the Washington bureau chief to CBS News and, prior to that, 

executive producer of NBC’s Meet the Press. 

She is a leading advocate for issues facing electronic journalists, 

fighting for cameras and microphones in State and Federal courtrooms, protecting journalists’ access in post-9/11 America in opposing Government secrecy. She is a frequent speaker on topics such 

as first amendment rights, the Freedom of Information Act, and 

cameras and microphones in the courtroom. 

Welcome, Ms. Cochran. 

Finally, but certainly not last, we have Fred Graham, an anchor 

at Court TV since it was launched in 1991. He served as chief anchor and managing editor as well as the head of its editorial board. 

He has received numerous awards for his reporting, including the 

George Foster Peabody Award. 

Over the past 45 years, he has been a practicing attorney, legal 

writer for The New York Times, and law correspondent for CBS 

News. He also served as special assistant to Secretary of Labor 

Willard Wirtz and, prior to that, was chief counsel of the Senate 

Judiciary Subcommittee on Constitutional Amendments. 

Welcome, Mr. Graham. 

Without objection, your written statements will be made a part 

of the record in their entirety. We would ask each of you to summarize your testimony in 5 minutes or less. To help you keep time, 

there is a timing light at your table. When 1 minute remains, the 

light will switch from green to yellow, and then to red when 5 minutes are up. 

We will begin with you, Judge Tunheim. 

TESTIMONY OF THE HONORABLE JOHN R. TUNHEIM, JUDGE, 

U.S. DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, 

ON BEHALF OF THE JUDICIAL CONFERENCE OF THE 

UNITED STATES 

Judge TUNHEIM. Thank you, Mr. Chairman, Ranking Minority 

Member Smith, and Members of the Committee. 

My name is John Tunheim. I am a United States District Court 

judge in Minneapolis in the District of Minnesota, and for the past 

2 years, I have served as chair of the Judicial Conference Committee on Court Administration and Case Management. I have 

been a Member of the committee since 2001. The committee has 

one of the broadest jurisdictions of any Conference Committee and 

includes making recommendations to the conference on topics involving court administration. 

I am very grateful to have the opportunity to appear before you 

today to present the position of the United States Judicial Conference on the issue of cameras in the courtrooms and specifically 

its position on the Sunshine in the Courtroom Act of 2007. 

I should also stress that the Judicial Conference does not speak 

for the Supreme Court and, therefore, I will have no comment on 

the bill’s application to that court. 

The Judicial Conference strongly opposes H.R. 2128 because it 

would permit the use of cameras in the Federal trial courts in all 

cases civil, and criminal. The Conference also opposes the bill’s provisions permitting each appellate court panel to decide whether to 

allow cameras, believing instead that the existing conference policy 

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which requires the decision to be made by the whole court of appeals to be appropriate. 

The Conference does not take this position because it is against 

increased publicity for the Federal courts. In fact, the Federal judiciary is probably the most publicly accessible Government institution. Nearly every filing, trial, appellate argument, decision and 

opinion is available and open to the public, and, over the past decade, the Judicial Conference has dramatically expanded that openness by making its entire filing system electronically available to 

the public through the Internet. This major initiative has put the 

Federal judiciary at the forefront of electronic innovation. 

In addition, the Federal trial courts effectively utilize 

videoconferencing, modern electronic evidence presentation systems, and, recently, we have embarked on a pilot study making 

digital audio recordings of hearings available on the Internet. 

Many of the courts of appeals make available audio recordings of 

all oral arguments. 

A good example is the arrangements that were made earlier this 

year in the criminal case against Scooter Libby in the District 

Court for the District of Columbia. A separate media room was created in which reporters and bloggers had access to both real-time 

video from the courtroom and the Internet. 

The Conference’s position regarding cameras in the district 

courts is based on thoughtful and real concerns regarding the impact that the camera’s presence could have on trial proceedings, 

and, more specifically, the Conference is very concerned that this 

legislation has the potential to substantially undermine the fundamental right of citizens to a fair trial. 

Appearing on television could lead some trial participants to act 

more dramatically, to pontificate about their personal views, to promote commercial interests to a national audience, or to increase 

their courtroom actions so as to lengthen their appearance on camera. The use of cameras in the trial courts could also raise privacy 

concerns and produce intimidating effects on litigants, witnesses 

and jurors, many of whom have no direct connection to the proceeding. 

The concern about the impact on witnesses is at the heart of the 

Judicial Conference’s opposition to the bill. Despite the fact that 

the bill gives the trial court judge discretion over permitting cameras, an inclusion which the Conference appreciates, it is impossible to determine in advance how witnesses will react to the presence of cameras. 

Testifying in Federal court is difficult. It can be embarrassing 

and tough. Adding television to the burden of testifying could have 

a profound effect on a witness. Indeed, in the 1994 Federal Judicial 

Center study, a majority of judges reported that witnesses were 

more nervous in the presence of cameras. Many reported witnesses 

being intimidated or distracted by the cameras. 

Will witnesses act differently if they know a television audience 

is listening and watching? Will witnesses say things differently? 

Even changes in the demeanor of a witness can severely impact 

their credibility with the jury. 

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partial justice to individual litigants in individual cases. Also, the 

Conference is very concerned that possible camera coverage could 

become a negotiating tactic in pretrial settlement discussions or 

cause a party to choose not to exercise their right to have a trial. 

I also want to differentiate between the televising of trial court 

proceedings and televising congressional hearings or sessions. The 

Federal trial takes place to determine individual’s rights and to administer justice. Livelihoods, property and even personal liberty 

are among the crucial matters at stake, and the right to have those 

matters decided in a fair and impartial trial is the basis of the distinction from the use of cameras in legislative, administrative or 

ceremonial proceedings. 

The paramount question in determining whether cameras should 

be used in Federal courts should not be whether more openness 

would be enjoyed by the public and media. Virtually all court proceedings are public and open today with the limited exception of juvenile and some national security-related matters. The better question is whether the presence of the camera has the potential to deprive citizens of their ability to have a claim or right fairly resolved 

in a United States District Court. 

Although the legislation gives the presiding judge discretion to 

deny the use of cameras, the potential for compromising a citizen’s 

right to a fair trial may not be evident until a televised trial is underway. The court would likely never know the extent to which the 

potential or actual use of cameras had chilled the search for truth. 

Mr. DELAHUNT. Judge, could you wrap up, please? 

Judge TUNHEIM. Okay. In closing, I would like to quote from Mr. 

Justice Clark in the case of Estes v. Texas who I think said it very 

well, ‘‘The impact upon a witness of the knowledge that he is being 

viewed by a vast audience is simply incalculable.’’ 

Because cameras in the trial courts could profoundly and negatively impact the dynamics of the trial process, the Judicial Conference strongly opposes any legislation that would allow the use 

of cameras in the United States District Courts. 

Thank you. 

[The prepared statement of Judge Tunheim follows:] 

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PREPARED STATEMENT OF THE HONORABLE JOHN R. TUNHEIM


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Mr. DELAHUNT. Thank you, Judge Tunheim. 

Judge Gertner? 

TESTIMONY OF THE HONORABLE NANCY GERTNER, JUDGE, 

U.S. DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS 

Judge GERTNER. Thank you very much, Mr. Delahunt, and thank 

you, Ranking Member Smith and Members of the Committee. I 

want to thank you for giving me an opportunity to speak before 

you. I am in favor of this bill, and I am a lone judicial voice in 

favor of the bill. 

As I describe in my testimony, which I would like to supplement 

after this is over, I think that the issue is not whether there should 

be cameras in the courtroom, but how they should implemented. In 

other words, I think we are past the discussion of whether, and we 

are now into a discussion of how. 

I come to this issue both as a judge and, as Representative 

Delahunt said, as a former litigator. I was a trial lawyer for 22 

years and participated in State court trials which were televised. 

I have been a judge for 13 years and, during that period of time, 

I have presided over numerous trials which have attracted enormous publicity, most recently Limone v. United States, which involved serious accusations of FBI misconduct and, when I announced my decision in open court, the room was filled with spectators. We provided an overflow courtroom with a video feed, and 

I wish that we had been able to provide a larger audience. 

My testimony is based on two prongs. The first is almost conceptual, what ‘‘public’’ means in the 21st century, which I think is a 

different thing than it meant at the time of the Supreme Court decisions on this issue, and also the experience in the State courts 

which has proved that in a setting which is far more difficult than 

the setting of the Federal courts, cameras have not had the predicted impact. 

Let me start with what ‘‘public’’ means. ‘‘Public’’ today means television, Internet, means information through screens, means 24/7 

coverage of proceedings, and we are essentially there, all but with 

cameras. That is to say we have 24/7 coverage of proceedings. We 

have transcripts which the press has ready access to, and, in fact, 

I have frequently seen the judge with a streaming transcript on the 

screen. 

In my courtroom, it is an electronic courtroom. The lawyers can 

e-mail one another from the courtroom to their offices. There is, in 

fact, work going on now about a private video feed from the lawyers to their own offices. In other words, we have equipped our 

courtrooms to deal with the technological age. 

The portrait of cameras that, again, is implicit in this discussion 

is of an obtrusive device, and I think that that is no longer the 

case. 

In addition, ‘‘public’’ today to those of a certain age group means 

getting information through screens. There is a huge response, substantial information suggesting that young people do not read 

newspapers. They only get their information through screens, and 

when we do not provide our information in that way, it makes a 

substantial difference. 

39 

Again, the debate has been characterized by the awful cases, by 

O.J. Simpson, by Lorena Bobbitt. There have been certainly times 

I have been watching the television and grimaced. It is not clear 

to me that I would not have been grimacing if I were in that courtroom as well in a high-profile case. 

I think that the antidote to those cases is to be in the courtroom 

of Judge Young when he sentenced Richard Reid, the shoe bomber, 

or the courtroom of Judge Wolf, when he uncovered misconduct in 

the FBI, or Judge Mazzoni during the course of the proceedings on 

the cleanup of Boston Harbor. 

In the second prong of my testimony is the State courts. The 

State courts deal with murder and rape and child molestation, and 

they have managed to have coverage for nearly 20 years without 

any of the anticipated concerns. I deeply appreciate the concerns of 

the other witnesses, but I think again that is a question of how and 

not whether. 

The concern, for example, about witnesses who are sequestered, 

going home and watching television and seeing the testimony of 

their predecessors—well, we actually trust the public when we tell 

them not to read about the case that they will not read about the 

case. 

But, again, we know how to control this technology. We could 

delay the broadcast of proceedings, could obscure faces. There are 

a number of techniques one can use, and that is what we should 

examine because it is a new age. 

Finally, I want to say just I think it is a new age in another respect. Twenty-four/seven news coverage of proceedings and the 

anti-judge tirades one frequently sees in late-night programs, I 

think, requires cameras in the courtroom now as an antidote to 

that. 

I believe that we are at a point where judges in one sense have 

to prove their legitimacy, have to demonstrate their legitimacy. It 

is no longer assumed by the public, and I would rather prove that 

legitimacy in my own voice with my own face and my own words 

than have my words described by a late-night TV anchor. 

Finally, the strength of this bill is that it does not mandate cameras. It does not insist on them. It does not even encourage them. 

It allows judges to exercise their discretion to permit cameras in 

appropriate cases, subject to fair limitations. I for one would like 

to try. 

Thank you. 

[The prepared statement of Judge Gertner follows:] 

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PREPARED STATEMENT OF THE HONORABLE NANCY GERTNER


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Mr. DELAHUNT. Thank you, Judge Gertner. 

Mr. Richter? 

TESTIMONY OF JOHN C. RICHTER, U.S. ATTORNEY, 

WESTERN DISTRICT OF OKLAHOMA 

Mr. RICHTER. Thank you, Mr. Chairman, Ranking Member 

Smith, Members of the Committee. 

Again, my name is John Richter. I presently serve as the United 

States Attorney for the Western District of Oklahoma. 

It is my privilege today to speak to you on behalf of the Department of Justice to express our strong opposition to and deep concerns about H.R. 2128. 

In pursuing cases, it is the duty of each and every United States 

Attorney to see that justice is done. In examining the implications 

of this bill, therefore, I look at whether it will add to or detract 

from the cause of justice. 

The Department of Justice joins with the Judicial Conference, 

many Federal judges and many defenders in expressing our concerns about this bill. 

In my prepared remarks, I have identified the many potential 

harms that will flow from placing cameras in Federal courtrooms. 

As the Supreme Court has indicated, giving the media a degree of 

access beyond that available to the public will adversely impact 

witnesses, victims, jurors, judges and other trial participants and, 

in so doing, negatively affect our ability to maximize the truthseeking function of our justice system. 

Likewise, because of the exponential increase in the dissemination of images that will necessarily flow from placing cameras in 

the courtroom, the risk of harm to judges and other trial participants will increase. Judges, defendants and witnesses face increased risks as it is. We do not need to add to that risk. 

In exchange for these harms, proponents of cameras in Federal 

courtrooms assert that there will be two benefits. First, they argue 

that by broadcasting the proceedings, the media, as a surrogate for 

the public, can act as a check by shining the sun on the judicial 

branch. 

Second, they argue that expanding the manner in which the 

press can cover court proceedings will be educationally valuable to 

Americans. However, when actually examined, neither of these arguments carries much weight when compared to ensuring that justice is done. 

First, it is hard to see how the media really needs a greater 

means of coverage in order to monitor and check the judiciary. 

After all, the sun is already shining brightly. Without this bill, the 

print and broadcast media still have the exact same degree of access to Federal court proceedings as the general public. 

These trials are not secret. The bright lights of the camera are 

on the steps of the courthouse every day, and journalists are already in the courtroom ferrying information immediately to cameras and from there to the viewing public. 

Second, the idea that cameras and broadcasts will increase the 

educational aspects of reporting while carrying superficial appeal, 

in fact, breaks down upon examination. In comparing television 

and newspaper coverage, a Harvard academic study showed that 

45 

media coverage without the presence of cameras in the court covered more facts about the case, the actual judicial process, the substance of the defense and the larger societal impact of the case 

than the coverage with the cameras. 

The coverage with cameras in court raised few larger societal 

issues. Instead, the cameras’ coverage focused primarily on the dramatic and the graphic aspects of the trial, the emotions of the witnesses and the trials as a strategic game between two sides, rather 

than a proceeding for the purpose of ascertaining the truth and 

seeking justice. 

And why is that? Because if past is prologue, some in the media 

will see trials as a soap opera, as just another opportunity to sensationalize, and gain ratings. Of course, many media outlets covering 

trials may behave responsibly. We must remember, however, that 

once we allow the feed from the courtroom, no one will be able to 

control its use or dissemination to only the most responsible. 

For some, the Federal court proceedings will not be about education. Instead, the coverage will be focused on sensationalization 

and entertainment, but, Mr. Chairman, justice is not about entertainment. It is not about making money on programming. 

It is about seeking the truth. It is our Nation’s best attempt at 

justice in a dignified process, a process that will not be improved, 

but only potentially hurt by cameras and broadcasts from inside 

the courtroom. It is for these and the reasons set forth in my prepared remarks that we conclude as follows: 

The potential harms this legislation will have on the cause of justice greatly outweigh the benefits, if any, to be gained by the measure. The Department of Justice, therefore, strongly opposes H.R. 

2128. 

I would be pleased to answer any questions you or your fellow 

Committee Members may have. 

Thank you. 

[The prepared statement of Mr. Richter follows:] 

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PREPARED STATEMENT OF JOHN C. RICHTER


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Mr. DELAHUNT. Thank you, Mr. Richter. 

Ms. Swain? 

TESTIMONY OF SUSAN M. SWAIN, PRESIDENT AND 

CO-CHIEF OPERATING OFFICER, C-SPAN 

Ms. SWAIN. Thank you, Mr. Chairman, Mr. Smith and Members 

of the Committee, for inviting C-SPAN here today to testify about 

an issue that is very near and dear to our network, cameras in the 

Federal courts. 

C-SPAN actually welcomes very strongly the bill’s intention of 

making the courts more accessible to television coverage. As the 

Members of this Committee are very aware, our network has a long 

history of advocating greater openness in Federal Government, and 

we believe that the Federal courts should be as open to cameras 

as are the House and the Senate. 

I travel the country a great deal for my job, and it is interesting 

how often the question is asked, ‘‘When will cameras be allowed in 

the Federal courts?’’ It is very disappointing to explain to people 

that 16 years after the Judicial Conference first began experimenting with television coverage, no additional circuits beyond the 

two in that first test, the 2nd in New York and the 9th in San 

Francisco, have moved to allow camera coverage of their proceedings. 

Two things have happened during those 16 years: As the judge 

has indicated, video has come to dominate the communications flow 

in our society; and the 2nd and 9th Circuits now have long histories of successful interaction with C-SPAN and other television 

news organizations. 

Let me tell you a little bit about what the experience is like 

being a news organization trying to operate in what has become, 

we think, a patchwork quilt of policies regarding media access in 

the 13 Federal courts. 

While the 2nd and 9th consider requests for cameras, most other 

circuits make audiotapes of their proceedings, and even then, access to those audiotapes ranges from no public release—in other 

words, the tapes are for the judge’s use only—to circuits, which, as 

noted, post them on their Web site. And there is one circuit, the 

5th in New Orleans, which still relies on written transcripts. 

The status quo is really hard for someone outside the system to 

understand, and let me give you an example from the past year to 

explain why. 

In the past 9 months, two circuits, the 2nd and the 3rd in Philadelphia, both heard cases about broadcast indecency standards. Because of the current public debate over television decency, C-SPAN 

petitioned both courts for permission to televise the sessions: the 

second, which has the camera policy; the third, which does not. 

The 2nd Circuit not only permitted us to bring in cameras, but 

further agreed to our request to televise last December’s argument 

in Fox vs. FCC live. By contrast, the 3rd Circuit court case, CBS 

v. FCC, is probably much better known to the public because it 

stems from the 2004 Super Bowl telecast, Janet Jackson’s so-called 

‘‘wardrobe malfunction incident.’’ 

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ceived a letter from the clerk denying our request on the grounds 

that the 3rd Circuit has no television policy, and there we are. 

The 3rd Circuit is one of those courts which audiotapes proceedings, so we asked for permission for same-day access to the 

audiotapes, which the court granted. We figured that our best resource was to televise the audio of the oral argument by adding 

graphics and pictures of the judges and attorneys. So this is where 

we end up, same-day televised audio with pictures bringing us far 

enough down the road that one has to ask, ‘‘Why not simply permit 

the cameras?’’ 

Audio with pictures is exactly where we are with the Supreme 

Court oral arguments. And, although we are very pleased with 

Chief Justice Roberts, who has continued Chief Rehnquist’s practice of considering requests for expedited release of the audio of 

high-court arguments, our batting average in the Supreme Court 

is good, but we wish it were better. So far, we have asked the Roberts court for audio in 12 different cases, and the chief justice has 

agreed to seven of our requests. 

Mr. Chairman and Members of this Committee, it has now been 

30 years since C-SPAN argued, and the Congress agreed, that in 

this very vast country, television cameras are a practical extension 

of the press and public galleries in the Capitol building, and we believe that the same basic argument holds true for the Federal 

court. 

An open judicial system is fundamental to our democracy. Federal judges, after all, are public employees doing the public’s business in public buildings. We believe, as the authors of this legislation do, that the public has a right to witness the work of their 

Federal courts and that considering the great size of this country 

and the reliance on television as the means of communication, it 

is really the only viable way for this to happen. 

Mr. Chairman, let me close by reiterating C-SPAN’s interest in 

and commitment to greater coverage of the Federal courts on our 

networks, our plan to do it entirely gavel to gavel, and complete 

coverage of the Supreme Court should television access be expanded there as well. 

Thank you for letting us present our opinion today. 

[The prepared statement of Ms. Swain follows:] 

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PREPARED STATEMENT OF SUSAN M. SWAIN


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ATTACHMENTS 


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Mr. DELAHUNT. Thank you, Ms Swain. 

Ms. Cochran? 

TESTIMONY OF BARBARA COCHRAN, PRESIDENT, 

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION 

Ms. COCHRAN. Mr. Chairman, Ranking Member Smith and Members of the Committee, thank you for inviting me to appear today 

on behalf of the 3,000 electronic journalists who are members of 

RTNDA. 

The Sunshine in the Courtroom Act of 2007 is an important step 

toward removing the cloak of secrecy surrounding our judicial system. In our view, the time has come to enact this legislation as 

speedily as possible. Cameras are now routinely present in State 

courtrooms and have been for more than a quarter of a century. Indeed, all 50 States permit television and radio coverage at some 

level and 43 States allow such coverage of trials. If cameras can 

work at the State level, they can work at the Federal level, too. 

The U.S. Supreme Court has upheld the first amendment right 

of the public to attend trials. The news media are present as surrogates for the public. In the 21st century, there is no compelling reason to continue to exclude electronic media from Federal courts. 

Such a discriminatory ban is inconsistent with an open judicial 

process and is a disservice to the public. 

A courtroom is a public forum where the presence of citizens or 

the news media as their surrogates historically has enhanced the 

integrity and quality of the judiciary. Only the electronic media can 

truly convey with accuracy what goes on inside a Federal courtroom by enabling the public to observe the demeanor, tone, credibility and even the competency and veracity of the participants in 

a proceeding. 

Electronic coverage of Federal court proceedings would serve an 

important purpose for this body as well. The actions of the executive branch and the legislature are extensively portrayed in the 

electronic media, but under our current system, neither the legislature nor the executive branch has ready access to the daily workings of the Federal judiciary. Without regular audio visual coverage 

of court proceedings, two co-equal branches’ oversight of the judiciary is limited to fleeting glimpses offered in confirmation hearings. 

Americans are left knowing more about the jurisprudence of 

Judge Judy than of Justices Roberts and Alito. Jurors, prosecutors, 

lawyers, witnesses and judges at the State and Federal levels have 

overwhelmingly reported that the unobtrusive camera has not adversely impacted trials or appellate proceedings. The pilot program 

in the early 1990’s was a resounding success and resulted in a recommendation that cameras be allowed in all Federal courts. 

Comprehensive studies conducted in 28 States show the significant social and educational benefits of televised coverage of courts. 

Most conclude that a silent, unobtrusive courtroom camera provides the public with more and better information about the functioning of courts. RTNDA knows of no case in which the presence 

of a courtroom camera was found to have any affect whatsoever on 

the ultimate result. 

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fords instant access and verification of quotes to reporters who 

work in print as well as electronic media. In contrast to the Harvard study we just heard about, a New York study found, ‘‘Reporting on court proceedings, both by newspaper and broadcast reporters, frequently is more accurate and comprehensive when cameras 

are present.’’ 

The 2000 presidential election case illustrates the public benefits 

of audiovisual coverage of judicial proceedings. When the case 

reached the Supreme Court, the court set historic precedent by 

quickly releasing an audio recording of the oral arguments. Both 

television and radio stations broadcast the tapes in their entirety. 

By acting with more transparency, the high court laid the groundwork for a common understanding and acceptance necessary for 

closure to the electoral contest of 2000. 

Federal courts have not taken the initiative to permit electronic 

coverage of their proceedings. Therefore, RTNDA respectfully submits that the time has come for Congress to legislate. 

RTNDA’s members have covered court proceedings in every 

State, and their experience has demonstrated that cameras do not 

interfere with the administration of justice or infringe the rights of 

defendants or witnesses. Cameras in the courtrooms work. They 

create a public record. They get the story right. 

In permitting audiovisual coverage in Federal courts at every 

level, including the Supreme Court, you will provide the world with 

unlimited seating to observe the workings of justice in the United 

States. 

Thank you, Mr. Chairman, for the opportunity to testify on behalf of the Radio-Television News Directors Association before your 

Committee today. 

[The prepared statement of Ms. Cochran:] 

PREPARED STATEMENT OF BARBARA COCHRAN

Mr. Chairman and Members of the Committee, I am Barbara Cochran, President 

of the Radio-Television News Directors Association. Thank you for inviting me to 

appear today on behalf of the 3,000 electronic journalists, educators, students and 

executives who comprise RTNDA, the world’s largest professional organization devoted exclusively to electronic journalism. 

At the Committee’s request, I will address proposed legislation to allow media coverage of federal court proceedings. As you know, under present law, radio and television coverage of federal criminal and civil proceedings at both the trial and appellate levels is effectively banned. The Sunshine in the Courtroom Act of 2007 represents an important step toward removing the cloak of secrecy surrounding our judicial system by giving all federal judges the discretion to allow cameras in their 

courts under a three-year pilot program. 

Americans base their opinions and perceptions of our judicial system on a variety 

of sources. We are influenced by popular culture: the four major broadcast networks 

currently air at least ten different hour-long prime-time programs dealing with 

courts or the criminal justice system. Three of the eight shows are regularly set in 

or around courtrooms. In addition, local broadcasters’ daytime offerings frequently 

include confrontational programs, such as Judge Judy, that purport to approximate 

atmosphere of a civil courtroom. 

Within this context, does it make sense that judicial nominees are closely scrutinized in the Senate Judiciary Committee’s confirmation ‘‘hot seat,’’ only to be obscured from view after they ascend to the bench? RTNDA’s members think not. 

RTNDA’s members are the people who have demonstrated that television and 

radio coverage works at the state and local level, and they can make it work on the 

federal level. RTNDA strongly believes that permitting electronic coverage of federal 

judicial proceedings—from federal district courts to the United States Supreme 

Court—is the right thing to do as a matter of sound public policy. Moreover, RTNDA 

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rogative. Passage of this legislation will send a message to judges that giving the 

public access to courts through televised proceedings is a right and an opportunity, 

not an inconvenience. 

RTNDA respectfully submits that there is no compelling reason to stall the passage of this legislation. The First Amendment right of the public to attend trials 

has been upheld by U.S. Supreme Court. The presence of cameras in many state 

courtrooms is routine and well-accepted. The anachronistic, blanket ban on electronic media coverage of federal proceedings conflicts with the values of open judicial proceedings and disserves the people. 

Allowing electronic coverage of federal court proceedings serves an important purpose for this body, as well. It allows the legislature to criticize actions taken by the 

executive, and it affords the executive an opportunity to prod reluctant lawmakers. 

But under our current system, neither the legislature nor the executive have ready 

access to the day-to-day workings of the federal judiciary. Without regular audiovisual coverage of court proceedings, two co-equal branches’ oversight of the judiciary is constrained to fleeting glimpses offered in confirmation hearings. 

A courtroom is, by nature, a public forum where citizens have the right to be 

present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. 

The interests of our citizens are not fully served, in this day and age, by opening 

federal courtrooms only to a limited number of observers, including the press, who 

can publicize any irregularities they note. In practice, what goes on inside a courtroom can only be effectively reported if the court permits journalists to use the best 

technology for doing so. There is no principled basis for allowing print media and 

not electronic media to use the tools of their trade inside federal courtrooms. Only 

the electronic media can serve the function of allowing interested members of the 

public not privileged to be in the courtroom to see and hear for themselves what 

occurs. As Judge Nancy Gertner, who will testify before you today, aptly stated in 

testimony before the Senate Judiciary Committees’ Subcommittee on Administrative 

Oversight and the Courts some seven years ago, ‘‘public proceedings in the twentyfirst century necessarily mean televised proceedings.’’ 

Technological advances in recent decades have been extraordinary, and the potential for disruption to judicial proceedings has been minimized. The cameras available today are small, unobtrusive, and designed to operate without additional light. 

Moreover, the electronic media can be required to ‘‘pool’’ their coverage in order to 

limit the equipment and personnel present in the courtroom, further minimizing disruption. 

It cannot seriously be disputed that audiovisual coverage, which would allow for 

complete and direct observation of the demeanor, tone, credibility, contentiousness, 

and perhaps even the competency and veracity of the participants, is the best means 

through which to advance the public’s right to know as it pertains to the actions 

of the federal judiciary. Public access to judicial proceedings should not and need 

not be limited to reading second-hand accounts in newspapers, or hearing them on 

radio or seeing them on television. By nature, the electronic media is uniquely suited to ensure that the maximum number of citizens have direct and unmediated access to important events. 

The Committee should not be swayed by those who are quick to point the finger 

at a few extreme examples of courtroom spectacles. Even though television coverage 

of a handful of court proceedings has been criticized as mere ‘‘sensationalism,’’ the 

Committee should remember that the camera shows what happens; it is not a cause. 

The prohibition on audiovisual coverage of federal judicial proceedings has resulted 

in viewers witnessing those events that take place on the courthouse steps, not 

those transpiring where it matters most—inside the courtroom. 

Jurors, prosecutors, lawyers, witnesses and judges on both the state and federal 

levels have overwhelmingly reported for the last decade or so that the unobtrusive 

camera has not had an adverse impact on trials or appellate proceedings. The pilot 

cameras program conducted by six federal districts and the Second and Ninth Circuit Courts of Appeals between 1991 and 1993 was a resounding success, resulting 

in a recommendation that cameras be allowed in all federal courts. This past summer, five federal district courts entered a new pilot program to make digital audio 

recordings of proceedings available online. Although audio recordings are no substitute for live audiovisual broadcasts, RTNDA is encouraged and sees this program 

as a step in the right direction. 

All 50 states now permit some manner of audiovisual coverage of court proceedings. 43 states allow electronic coverage at the trial level. The District of Columbia is the only jurisdiction that prohibits trial and appellate coverage entirely, but 

even it has not remained immune from technological advances and demands for 

greater transparency. Last year, the District of Columbia Court of Appeals opened 

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its doors, virtually, and began offering live audio webcasts of appellate oral arguments. 

Comprehensive studies conducted in 28 states show that television coverage of 

court proceedings has significant social and educational benefits. Most conclude that 

a silent, unobtrusive in-court camera provides the public with more and better information about, and insight into, the functioning of the courts. Many have found that 

the presence of cameras does not impede the fair administration of justice, does not 

compromise the dignity of the court, and does not impair the orderly conduct of judicial proceedings. In the hundreds of thousands of judicial proceedings covered electronically across the country since 1981, to the best of RTNDA’s knowledge there 

has not been a single case where the presence of a courtroom camera has resulted 

in a verdict being overturned, or where a camera was found to have any effect whatsoever on the ultimate result. 

It is also worth noting that simultaneous audiovisual coverage of judicial proceedings improves the media’s overall ability to accurately report on them. Such coverage affords a greater pool of reporters instantaneous access. In-court events, including quotations, can be verified simply by playing back an audio or videotape. 

As one New York study found, ‘‘reporting on court proceedings, both by newspaper 

and broadcast reporters, frequently is more accurate and comprehensive when cameras are present.’’ 

One compelling illustration of the public benefits resulting from audiovisual coverage of judicial proceedings involves the presidential election dispute in the fall of 

2000. Given Florida state rules that permit cameras in the courtroom, the nation 

was able to watch and listen live as the Florida courts, including the state’s Supreme Court, heard arguments in President Bush’s bid to throw out hand-counted 

ballots that former Vice President Al Gore hoped would win him the presidency. 

In response to requests from numerous media organizations, including RTNDA, 

to allow television coverage of the subsequent oral arguments before the United 

States Supreme Court, the late Chief Justice Rehnquist wrote, ‘‘the Court recognizes 

the intense public interest in the case and for that reason today has decided to release a copy of the audiotape of the argument promptly after the conclusion of the 

argument.’’ Radio stations played the tapes in their entirety; their television counterparts played long excerpts, supplemented with photos and the familiar artists’ 

sketches. Later, Chief Justice Rehnquist told a CNN reporter that he was very 

pleased with the reception that the playing of the court’s audiotapes had gotten. 

People who before the election couldn’t have named one justice now could name all 

nine. As divisive as the 2000 electoral contest was, the openness of the courtrooms 

produced the common understanding and acceptance necessary for political closure. 

The Supreme Court has released audiotapes of other high profile cases in recent 

years, thus permitting the public to hear oral argument concerning such serious 

issues as United States courts’ jurisdiction over claims by foreign citizens held at 

the Guantanamo Naval Base and whether the government may withhold constitutional protections from a U.S. citizen detained as an ‘‘enemy combatant.’’ While the 

electronic media has welcomed release of these select recordings, they are no substitute for consistent, complete audiovisual coverage. Significantly, in response to 

questions posed by members of this Committee during his confirmation hearings, 

our new Chief Justice, John Roberts, stated that he is open to the idea of televising 

Supreme Court proceedings. 

Indeed, because of the federal ban, American citizens have been deprived of the 

benefits of first-hand coverage of significant issues that have come before the United 

States federal district courts, federal appellate courts, and the Supreme Court in recent years. For example: 

• Whether the government can take possession of a person’s private property 

and transfer it to developers to encourage economic development; 

• Whether executing juveniles constitutes cruel and unusual punishment; 

• Whether the term ‘‘Under God’’ in the Pledge of Allegiance is unconstitutional; 

• Whether a state university may consider race and ethnicity in its admissions 

process; 

• Whether a student may be disciplined for carrying a vaguely pro-drug banner 

at a public event near his school. 

• Whether parents have a constitutionally protected right to prevent schools 

from providing information on sexual topics to their children. 

• Whether an employee may be awarded back-pay for twenty years difference 

between her salary and those of her male counterparts. 

99 

In contrast, people throughout the world were able to turn on their television sets 

(or their computers) to witness for themselves opening proceedings in the trial of 

Saddam Hussein and seven of his associates accused of crimes against humanity. 

The judges involved and the Iraqi people apparently understood how critically important it was to make this process truly public. Ironically, if the United States had 

successfully argued to have the case come before one of our federal courts, our laws 

would have prohibited broadcast of the trial. 

For whatever reasons, federal courts have not, on their own motion, taken steps 

to permit electronic coverage of their proceedings. Therefore, RTNDA respectfully 

submits that the time has come for Congress to legislate. As federal district Judge 

Leonie Brinkema wrote in rejecting requests for televised coverage of the trial of alleged terrorist Zacarias Moussaoui, whether or not to permit cameras in federal 

courtrooms is a question of social and political policy best left to the United States 

Congress. The legislation proposed by Representatives Chabot, Delahunt, McCotter 

and Poe represents a careful approach by giving federal judges at both the trial and 

appellate levels the discretion to allow cameras in their courts under a three-year 

pilot program. At its conclusion, Congress and federal judges would be given an opportunity to review the program. 

I should mention here that RTNDA believes that federal law governing television 

coverage of the judicial branch should be grounded in a presumption that such coverage will be allowed unless it can be demonstrated that it would have a unique, 

adverse effect on the pursuit of justice or prejudice the rights of the parties in any 

particular case. Placing decisions as to whether or not to ‘‘pull the plug’’ on electronic coverage in the hands of the parties would render the legislation ineffective. 

The public has a right to see how justice is carried out in our nation. As the Supreme Court has stated, people in an open society do not demand infallibility from 

their institutions, but it will be difficult for them to accept what they are prohibited 

from observing. Public scrutiny will help reform our legal system, dispel myth and 

rumors that spread as a result of ignorance, and strengthen the ties between citizens and their government. The courtroom camera not only gets the story right, it 

creates a record of the proceedings and opens a limited space to a broader audience. 

Experience shows that cameras in the courtroom work and that they do not interfere with administration or infringe on the rights of defendants or witnesses. 

RTNDA members have covered hundreds if not thousands of state proceedings 

across the country without incident and with complete respect for the integrity of 

the judicial process. 

In the same way the public’s right to know has been significantly enhanced by 

the presence of cameras in the House and then the Senate over the past two decades, the proposed legislation that is the subject of today’s hearing has the potential 

to illuminate our federal courtrooms, demystify an often intimidating legal system, 

and subject the federal judicial process to an appropriate level of public scrutiny. 

While both print and electronic media fulfill the important role of acting as a surrogate for the public, only television has the ability to provide the public with a close 

visual and aural approximation of actually witnessing events without physical attendance. It is time to provide unlimited seating to observe the workings of justice 

everywhere in the United States by permitting audiovisual coverage of federal judicial proceedings at all levels, including those before the United States Supreme 

Court. 

Thank you, Mr. Chairman, for the opportunity to testify on behalf of RTNDA before your committee today. 

Mr. DELAHUNT. Thank you, Ms. Cochran. 

And now our last witness, Mr. Fred Graham. 

TESTIMONY OF FRED GRAHAM, SENIOR EDITOR, COURT TV 

Mr. GRAHAM. Thank you, Mr. Chairman. 

My name is Fred Graham. I am the Senior Editor of Court TV. 

I want to start by commending the Chairman, Congressman 

Delahunt, and Congressman Chabot—they were the original sponsors of the precursor to this legislation, and they have been very 

faithful in supporting us through this proposed legislation ever 

since—and also the other Members of the Committee. 

After all, this Committee has twice approved earlier versions of 

this testimony, and it is clear to you all that Court TV does support 

100 

the legislation. We hope the third time will be a charm, that it will 

go through, again, this Committee, but this time it will turn out 

to be in the end a statute. 

I filed my statement. I want to make two points, and the first 

one is fortuitous because, as you know, lawyers love to quote Oliver 

Wendell Holmes, and Oliver Wendell Holmes had a principle that 

goes to the core of what we are talking about today. He said, ‘‘The 

life of the law is not logic. It has been experience.’’ 

And what he meant by that in this context is to go to the heart 

of the bona fides of this issue, it is not helpful to have a lawyer 

go through in his mind and lay out a parade of horribles, of things 

that might happen or theoretically could happen, because we have 

so much experience in what has happened through cameras in 

courts. 

Now we at Court TV have had a unique, I think in the world, 

opportunity to obtain experience on this issue. Since we went on 

the air 16 years ago, we have covered more than 900 trials and judicial proceedings. Thirty thousand hours we have put on the air 

of real trials being covered by cameras, and you cannot imagine 

how frustrating it is when we have seen through the course of 

30,000 hours while we put on the air these trials that the camera 

coverage does not have a harmful effect. 

You can tell the psychology which is behind that lack of harmful 

effect, and that is it is so clear when you see a trial begin that is 

being televised that after the first 3 or 4 minutes, the participants 

just tune out the fact that there is a camera there. They do not pay 

any attention to it. These trials typically go 3 weeks, 6 weeks, and, 

after the first few minutes, the camera means nothing. 

So what we see is that the camera does not prevent the trial that 

is being covered by the camera from being as ordinary and as dignified as the trial next door where there is no camera in effect. 

Now my second point has to do with really befuddlement on our 

part because we are, frankly, confused and uncertain as to why it 

is that the Judicial Conference is so extreme in its opposition to 

this bill. 

As Judge Gertner pointed out, this does not require the presence 

of cameras in any court. This only permits the judge to exercise his 

or her discretion to decide if it should be covered. 

Now here is a group of judges who have the power to make decisions over life or death. They can enjoin the President of the 

United States. They can declare unconstitutional acts that you, 

Members of Congress, have put into effect. And yet basically the 

Judicial Conference seems to be saying they cannot be trusted to 

have discretion to rule on this one point. 

I must say that it is a matter of confusion to us. I would be interested to hear some explanation of it. We feel that this statute 

should become law. We hope that it will, and I will be happy to try 

to answer any questions you may have. 

[The prepared statement of Mr. Graham follows:] 

PREPARED STATEMENT OF FRED GRAHAM

Chairman Conyers, Ranking Member Smith and Members of the Committee, my 

name is Fred Graham. I joined Court TV as an anchor when it first was launched 

in 1991. I served as the Chief Anchor and Managing Editor of Court TV. In that 

capacity, I hosted Court TV’s morning trial coverage program Open Court. Recently, 

101 

I assumed the new role of Senior Editor and serve as the Chair of Court TV’s editorial board. I also continue to report on key legal news events from here in Washington, D.C. Prior to joining Court TV, I was a legal writer for The New York Times 

and law correspondent for CBS News. Very early in my career, I was the Chief 

Counsel of the Senate Judiciary Subcommittee on Constitutional Amendments 

under Chairman Estes Kefauver of Tennessee. I earned my law degree at Vanderbilt University, where I was the Managing Editor of the Vanderbilt Law Review and 

was elected to the Order of the Coif. 

Mr. Chairman, Court TV strongly supports H.R. 2128, the Sunshine in the Courtroom Act of 2007. We believe that the First Amendment right of the people of the 

United States to the freedom of speech, particularly as it relates to their right to 

present their opinions on the affairs of the Government, cannot be exercised meaningfully without the ability of the public to obtain facts and information upon which 

to base their judgments about important issues and events. As the United States 

Supreme Court stated in Craig v. Harney (1974), ‘‘A trial is a public event.’’ ‘‘What 

transpires in the court room,’’ the Court continued, ‘‘is public property.’’ 

Further, Mr. Chairman, Court TV believes that the First Amendment right of the 

people of the United States to petition the Government to redress grievances, particularly as it relates to the manner in which the Government exercises its legislative, executive, and judicial powers under the Constitution, cannot be exercised 

meaningfully without the availability to the public of information about how the affairs of the Government are being conducted. As the Supreme Court noted in Richmond Newspapers, Inc. v. Commonwealth of Virginia (1980), ‘‘People in an open society do not demand infallibility from their institutions, but it is difficult for them 

to accept what they are prohibited from observing.’’ 

H.R. 2128 would provide statutory authority for United States District Judges to 

allow, at their discretion, televised coverage of public trials. As the Supreme Court 

stated in In re Oliver (1948), ‘‘Whatever other benefits the guarantee to an accused 

that his trial be conducted in public may confer upon our society, the guarantee has 

always been recognized as a safeguard against any attempt to employ our courts 

as instruments of persecution.’’ ‘‘The knowledge that every criminal trial is subject 

to contemporaneous review in the forum of public opinion,’’ the Court continued, ‘‘is 

an effective restraint on possible abuse of judicial power.’’ 

Mr. Chairman, by allowing delayed audio broadcasts of the oral arguments before 

the Supreme Court in last fall’s partial-birth abortion and affirmative action cases, 

Chief Justice John Roberts has recognized the great public interest in nationwide 

access to important judicial proceedings. Building on that principle, Representatives 

Chabot and Delahunt have introduced H.R. 2128, their bipartisan legislation to give 

Federal judges the discretion to allow the televising of proceedings in their courtrooms. Senators Schumer and Grassley have introduced companion legislation in 

the Senate. An earlier version of H.R. 2128 passed the House Judiciary Committee 

as part of H.R. 1751, the Secure Access to Justice and Court Protection Act of 2005, 

in the 109th Congress. 

H.R. 2128 would codify Chief Justice Roberts’s inherent discretionary authority to 

allow the televising of Supreme Court proceedings. Presiding judges of panels of the 

Courts of Appeals and District Court Judges would be given statutory authority to 

exercise discretion in allowing televised coverage of proceedings in their courtrooms. 

The bill gives the Judicial Conference the authority to formulate and issue guidelines to which judges may refer in deciding whether to allow the televising of particular cases. H.R. 2128 also includes a three-year sunset provision. 

Recognizing special concerns about televising trials in the District Courts, H.R. 

2128 provides strong safeguards. On the request of any trial witness other than a 

party, a District Judge must order the face and voice of the witness to be disguised 

or obscured in a manner that renders the witness unrecognizable to the television 

audience. The bill also prohibits the televising of jurors. 

H.R. 2128 is fully consistent with the trend in the states. All 50 states allow cameras at some level of their judiciaries. Based on our most recent review, 43 states 

permit cameras in their civil trial courts. Of those, 39 states allow cameras in criminal trials. Thus, at the state level, there is a growing consensus that cameras in 

the courtrooms serve the public interest. 

Mr. Chairman, Justice Oliver Wendell Holmes said, ‘‘The life of the law has not 

been logic, it’s been experience.’’ Since 1991, Court TV has covered more than 900 

trials and other judicial proceedings, providing more than 30,000 hours of courtroom 

coverage. We have seen over the years how the participants in these trials ‘‘tune 

out’’ the camera and how the televised proceedings are conducted in the normal, orderly way. We have always made a special effort to cover trials that involve issues 

of great public interest and importance. We believe that through our coverage of 

102 

these trials, the members of the public who have watched them have gained an enhanced respect for our judicial system and a greater understanding of our laws. 

The trials that Court TV has covered have involved many of the most serious social, political, cultural and economic issues of our time. In 1992, for example, Court 

TV provided live coverage of a hearing before the International Court of Justice in 

a case involving the 1988 terrorist bombing of Pan Am Flight 103, which killed 270 

people, over Lockerbie, Scotland. We also covered the criminal trials of Dr. Jack 

Kevorkian, who was accused of violating state laws against assisted suicide and euthanasia. In 2005, we covered the trial of the notorious Columbus, Ohio, highway 

shooter Charles McCoy, who admitted to a string of shootings, one of which killed 

a woman, but claimed innocence by reason of insanity. Also in 2005, we covered the 

case of Mississippi v. Killen, in which 80-year-old Edgar Killen stood trial for murder in the deaths of three civil rights workers who were killed while registering 

black voters in rural Mississippi. 

We at Court TV believe that our trial coverage serves very important public interests. At times, in fact, our trial coverage can help diffuse highly charged, volatile 

situations in very controversial cases. One of the best examples of this occurred in 

a case that attracted considerable national attention, the 2000 trial of four New 

York City police officers who were charged in the shooting death of an unarmed 

man, Amadou Diallo. 

Judge Joseph Teresi, the trial judge who was assigned to the case, understood the 

importance and value of having the New York City public watch the trial after 

venue was relocated to Albany. When the televised trial resulted in the acquittal 

of the police officers, public acceptance of the verdict was widely attributed to the 

fact that the people of New York had been able to watch and listen to the proceedings with their own eyes and ears. After the trial, then-New York City Mayor 

Rudolph Giuliani commended the trial judge for opening the courtrooms to cameras. 

As a result of televised coverage of the Diallo trial, Mayor Giuliani commented, the 

public ‘‘had the opportunity to listen and to see and to observe all of the witnesses; 

to observe the judge and the way in which he conducted the case; to sit by and listen to all the analysis the jury went through; and, they can draw their own judgment.’’ ‘‘And I believe that fact alone—the camera and the television coverage of it,’’ 

the Mayor continued, ‘‘—has changed the minds of a lot of people about what happened.’’ 

Mr. Chairman, in the sixteen years that Court TV has been televising more than 

900 trials, no judgment in the United States has been reversed because a television 

camera was in the courtroom. One has to look back more than four decades, to a 

time when television was in its infancy and cameras were still generally prohibited, 

to find a case to the contrary. In Estes v. Texas (1965), by a bare 5–4 majority, the 

Supreme Court reversed a criminal conviction based in part on a determination that 

the televising of a pre-trial hearing and parts of the trial had prejudiced the defendant. Four members of the Court, responding to the argument that television technology and the public’s reliance on television news would continue to advance, stated that ‘‘we are not dealing here with future developments,’’ nor with ‘‘the hypothesis of tomorrow,’’ but with ‘‘the facts as they are presented today.’’ Justice Harlan’s 

concurring opinion struck a similar note. Limiting his agreement with the majority 

to the facts of the case, Justice Harlan observed that ‘‘the day may come when television will have become so commonplace an affair’’ as to ‘‘dissipate all reasonable 

likelihood that its use in courtrooms may disparage the judicial process.’’ ‘‘If and 

when that day arrives,’’ he concluded, ‘‘the constitutional judgment called for now 

would of course be subject to reexamination.’’ 

Mr. Chairman, in this first decade of the 21st Century enters its final years, the 

day of which Justice Harlan spoke surely has arrived. When Estes was decided, 

audio visual technology was crude and other recording devices frequently intruded 

upon the dignity and conduct of courtroom proceedings with noisy cameras, bright 

klieg lights, snaking cables, and numerous technicians scurrying about the courtroom. 

Today, by contrast, broadcasters typically employ a single, stationary camera, 

which produces no noise and requires no additional lighting. The camera is placed 

away from the proceedings and, if necessary, can be operated by remote control. 

Wiring is unobtrusive. Microphones are small and are never operated in such a way 

as to record private conversations between attorneys and clients. Those microphones, in fact, are turned off during all parts of the proceedings that are not part 

of the public record. Thus, the electronic media routinely record trial court proceedings without disturbing their orderly, serene conduct. Not only, to use Justice 

Harlan’s words, is there no ‘‘reasonable likelihood’’ that the simple presence of a 

modern in-court camera will ‘‘disparage the judicial process,’’ but also there can be 

103 

no question that television has ‘‘become so commonplace an affair’’ that the day that 

Justice Harlan foresaw has, in fact, now arrived. 

In fact, in today’s world many Americans receive most of their news and information from television—so that if the judicial system is to be known and understood 

by the great mass of American citizens, it must communicate with them by way of 

television. Since years of experience have demonstrated that television coverage of 

judicial proceedings does no harm, it is in the public interest to open the judicial 

system to television coverage to the greatest feasible extent. 

Finally, Mr. Chairman, I want to comment on the continuing opposition to this 

legislation by the Judicial Conference of the United States. I find it ironic indeed 

that the Judicial Conference opposes this bill. After all, H.R. 2128 does not require 

cameras in our Nation’s Federal courts. Rather, it merely grants discretion to District Judges to decide, on a case-by-case basis, whether, and to what extent, to allow 

televised coverage of judicial proceedings in their courtrooms. Moreover, as I noted 

earlier, the bill explicitly grants the authority to the Judicial Conference to ‘‘promulgate advisory guidelines to which a presiding judge, at the discretion of that judge, 

may refer in making decisions with respect to . . . televising [judicial proceedings].’’ 

Thus, by opposing this bill, the members of the Judicial Conference seem to be questioning their judicial brethrens’ ability exercise their discretion wisely and to follow 

the advisory guidelines that the Conference itself would issue. 

No one would dispute that U.S. District Judges in our Nation have tremendous 

power. They may declare acts of the Congress unconstitutional. They may issue injunctions against the President’s exercise of his executive power if they find that it 

is contrary to the Constitution. They may sentence defendants convicted of capital 

crimes to death or send convicted defendants to prison for the rest of their lives. 

The notion that we can trust our Nation’s Federal judges with these awesome powers, but cannot trust them to exercise their discretion wisely in deciding whether 

to allow televised coverage of trials in their courtrooms is, to say the least, a strange 

one indeed. 

Specifically, in his testimony on behalf of the Judicial Conference before the Senate Judiciary Committee on nearly identical legislation in 2005, Judge Diarmuid 

O’Scannlain asserted that ‘‘camera coverage would . . . have a notably adverse impact on trial court proceedings.’’ ‘‘This, he continued, ‘‘includes the impact the camera and its attendant audience would have on the attorneys, jurors, witnesses, and 

judges.’’ Once again, Mr. Chairman, all that H.R. 2128 does is to grant District 

Judges the discretion to decide, on a case-by-case basis, whether to allow cameras. 

In doing so, Judges necessarily will take into account whether cameras in any particular case would, in fact, have an ‘‘adverse impact’’ on ‘‘attorneys, jurors, witnesses 

and judges.’’ In fact, the discretion that is granted by the bill is so broad that some 

Judges could decide that they do not believe that cameras are ever appropriate and 

make such determinations in each and every case before them. 

Beyond that, as I noted earlier, H.R. 2128 provides that non-party witnesses have 

an absolute right to have their faces and voices obscured if they make that request 

of the Judge. In addition, as I also pointed out, H.R. 2128 specifically prohibits the 

televising of members of jurors. Thus, H.R. 2128 has built-in safeguards that address any legitimate concerns about the effects of cameras on witnesses and jurors. 

As for the Judicial Conference’s concerns about the effects of cameras on attorneys 

and judges, H.R. 2128 leaves it to the Judge to evaluate any such effects and make 

the determination whether to allow cameras in light of them. 

Thank you, Mr. Chairman, for this opportunity to testify. I would be happy to respond to any questions that you or the other members of the Committee may have 

for me. 

Mr. DELAHUNT. Well, thank you, Mr. Graham. 

And I do share that befuddlement that you alluded to. 

And I am going to go to the Ranking Member, Mr. Smith, at this 

point in time, and I will save my own questions for somewhere 

along the track. 

Mr. Smith? 

Mr. SMITH. Thank you, Mr. Chairman. 

Judge Tunheim and Mr. Richter, let’s try to dispel some of that 

befuddlement, if we can. 

It seems to me inherently difficult to try to quantify the adverse 

impact of cameras in the courtroom, particularly on witnesses. 

104 

Judge Tunheim, I know the Judicial Conference has over the 

course of several decades conducted any number of studies. Is there 

any evidence in those studies of that adverse impact of the cameras 

in the courtroom, particularly on witnesses? 

And, Mr. Richter, going not to logic, but to experience, do you 

have any experience in the courtroom that you would be able to 

point to that would be examples of real life adverse impact on 

courtroom activities? 

And we will start with the judge the first. 

Judge TUNHEIM. Thank you, Congressman Smith. 

There is evidence in the most recent study done by the Federal 

Judicial Center of this strong concern that cameras may impact the 

testimony of witnesses. The study reported the views of judges who 

had presided over trials which were televised, and the results were 

that about 64 percent of participating judges felt that at least to 

some extent cameras made witnesses more nervous, 46 percent of 

the judges believed that at least to some extent cameras made witnesses less willing to appear in court, and we often have some difficulty getting witnesses to testify, particularly if they are outside 

a judge’s subpoena power. 

Mr. SMITH. So you are going actually to the administration of 

justice in America when you talk about those kinds of examples. 

Judge TUNHEIM. Absolutely. It is a difficult thing to testify in 

Federal court, and anything which discourages people from participating in trials as a witness is a cause for concern. 

And there is one other figure coming out of the FJC study, and 

that was 41 percent of the judges felt that cameras distracted witnesses. 

So there clearly is evidence from the study that this concern 

about witnesses is a legitimate one. 

Mr. SMITH. Okay. Thank you, Judge Tunheim. 

Mr. Richter? 

Mr. RICHTER. Thank you, Mr. Smith. 

From a prosecutor’s perspective, working with victims and witnesses is a critical part of the truth-seeking function of a case, both 

from the prosecutor and from defense counsel’s perspective, and it 

is their testimony during the course of a trial that, of course, is 

some of the key facts that come into evidence that make or break 

a case. 

And so to follow on what Judge Tunheim has just stated, for example, particularly in cases involving victims of violent crime, domestic violence, for example, these are victims who, obviously, are 

being called into court through no choice of their own. They were 

victims of a very serious crime. They do not want to be there. The 

circumstances are deeply personal, they are deeply humiliating. It 

is tough, in most of these cases, to bring the case in to begin with 

and to get them there and to gain their cooperation to begin with. 

For those who have worked with victims of domestic violence, 

many of them recant. Many of them reconcile. It is very difficult 

to come back and get them into the courtroom. And so for those 

types of victims, it is incredibly difficult to begin with, and adding 

on top of that then the pressure that comes from knowing that 

your remarks are not only going to be heard by the people in that 

courtroom, but they are going to be heard and stamped indelibly 

105 

on the Worldwide Web, we believe is a significant factor that will 

weigh in a victim or in that witness’s testimony. 

And to follow on the pilot project, the fact that judges have observed the change in demeanor, the nervousness, what juries have 

to judge is the credibility of a witness or victim’s testimony, and 

if they appear more nervous than, in fact, they should have as a 

result of that camera, then justice is not being done. 

Mr. SMITH. Okay. Thank you, Mr. Richter. 

Maybe I can squeeze in one more question here. And you have 

both given the statistical evidence as well as the real life case examples, and I think that that is helpful to all this. Why not allow 

district judges discretion to determine whether or not they want 

cameras in the courtroom like we do sometimes on the appellate 

level? 

You will have to give a brief answer, if you will, Judge. 

Judge TUNHEIM. Well, the Conference has studied this issue 

carefully and believes that the concern about witnesses, primarily 

the concern about security, the kind of pressure that would be 

brought to bear on televising proceedings is counterproductive, and 

it is just best that these proceedings go forward without the television cameras present. 

They are open proceedings. Anyone can come. The media is 

present at most of our proceedings and can be present at any one, 

and there is really no need to add to the concern that presents for 

witnesses. 

Mr. SMITH. Thank you, Judge Tunheim. 

Mr. Chairman, thank you. 

Mr. DELAHUNT. Mr. Davis of Alabama, a former Federal prosecutor himself, distinguished Member? 

Mr. DAVIS. Thank you, Mr. Chairman, and thank you for recognizing me. 

I welcome the panel here today. I am a young man, so I have 

not spent a lot of my time doing anything in life, but I spent a little 

bit of time as a Federal prosecutor and as a law clerk for a Federal 

judge, and I am certainly honored to see the judges and U.S. Attorney here today. 

Let me make some observations and perhaps invite response 

from the panel today. 

And, Judge Tunheim, let me start with your observations and 

Mr. Richter’s observations. 

I certainly respect the observations that you make about the possibility that witnesses could be made nervous or could be constrained or affected in some way, but I wonder if the question were 

asked of witnesses, ‘‘Does the presence of the defendant make you 

nervous?’’ I bet a substantial number would say it does. 

I will bet if you asked witnesses, ‘‘Does the presence of an audience full of live people make you nervous?’’ I will bet they would 

say it does. I will bet if you asked witnesses who were testifying 

pursuant to a plea agreement, ‘‘Does the fact that there is a plea 

agreement hanging over your head and a prosecutor has to evaluate your performance make you nervous?’’ I bet they would say it 

does. 

I am willing to bet there are a number of factors that witnesses 

would say constrain and deter their testimony, but, you know 

106 

what, we tolerate it because there are powerful countervailing interests on the other side. We decide that courtrooms should be 

made open to the public, so, therefore, the fact that a live audience 

could make someone nervous, that concern, is trumped by the desire to have open courtrooms, and I can go on down the line. There 

is always a countervailing public interest, and I wonder if this is 

not that kind of an example. 

Now I have no desire to see round-the-clock live coverage of Federal court. It would put most people to sleep, as all of us know who 

practice there, and that is not what we are talking about, as Mr. 

Graham pointed out. We are talking about giving the discretion to 

judges. And I have gotten to know a number of Federal judges over 

the years. Frankly, most of the ones I know would almost never 

grant it. 

The only times they would grant it would be an unusual case. 

I will give you an example: the Oklahoma City bombing trial. I suspect that that judge would have allowed his courtroom to be open 

and, frankly, I think the public would have gained from seeing that 

very serious event transpire and for us to have a living memory of 

it. 

I do not think it is enough for that kind of an event to simply 

be preserved by newspaper accounts or eyewitness accounts. That 

is the kind of seminal event that I think our country would benefit 

from seeing, and there will be other events like that. I want to hear 

some response from the panel on that point. 

But the second point that I would make, though, before that, is 

that it strikes me that the one branch of Government, ladies and 

gentlemen, that the public knows the least about is the judicial 

branch. They probably know all too much about us, the legislative 

branch, because they see us arguing repetitively at midnight. They 

see us making speeches to empty chambers and going on and on 

as if somebody somewhere cared. They get to hear us pontificate 

all the time. 

The executive branch they know a fair amount because even 

though there is a closed element to the executive branch—some of 

us are not happy about that—there is still a very active press out 

there that tries to tear those walls down, and newspapers tell us 

a lot about what the executive branch, the presidency do in this 

country. 

It has always struck me that the most mysterious branch is the 

judicial branch. 

Mr. Graham, you know this probably from your many years. 

For a lot of people, their image of what happens in a courtroom 

is ‘‘Law and Order,’’ the TV show. A lot of people’s image of what 

happens in a courtroom, when I was growing up, was ‘‘L.A. Law,’’ 

and when I first started trying cases as a young assistant U.S. Attorney, juries would wonder why I could not do a closing statement 

in 1 minute like they do on TV, and they would wonder why my 

witnesses would not always break down the way the ones on TV 

would. 

And I wonder if we do not have a powerful interest in this society 

in opening up the judiciary, giving more people a chance to see it, 

not all of it, not all the time, but the seminal events, the unique 

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ments. I think there is a powerful interest in our demystifying this 

enormously important branch of Government, and I wonder if this 

bill would not take us a step in that direction. 

But I would like to hear some reaction to what I have said from 

the panel. 

Mr. RICHTER. Well, Mr. Davis, speaking on behalf of the Department briefly to your first point, I think you do frame the issue correctly that this is a question of whether it adds to justice or detracts from justice. Your points as far as other things that may 

make witnesses nervous are certainly valid ones, but those all flow 

from things with which we have no choice in the matter. 

The difference here is we have a choice as to whether cameras 

go in a courtroom or not, and so from the Department’s perspective, 

really the question is as to whether that will add to the cause of 

justice or detract from the cause of justice. We believe, in weighing 

the equities of this case, that it will detract from the cause of justice. 

Mr. DAVIS. Any different perspective, Judge Gertner? 

Judge GERTNER. Yes. I think you make a great point. I think the 

question is: Are witnesses more nervous in high-profile cases because of the presence of the camera or because the cases are a 

high-profile case? 

And I am not sure that one can disentangle one from the other, 

whether having a courtroom sort of filled to the rafters and with 

a courtroom sketch artist makes a particle of difference from having the inconspicuous camera behind you on the bench. I do not 

think that it makes a difference. 

The studies that people are pointing to are studies from 1994. 

Between 1994 and now, there has been an explosion of information, 

as I said, through screens, and I am not sure that the public makes 

a difference, makes a distinction. 

Also, with respect to the cases that Mr. Richter cited, we care 

very much about child witnesses. We care very much about domestic abuse victims. That is what is going on in State court, not in 

Federal court, and it is in State court which accommodations have 

been made without problems. When you think about what we do 

in Federal court, we have the ability to control the proceedings 

even more. 

Mr. DAVIS. Mr. Chairman, would you allow some witness to comment on my demystification point, if anybody wants to pick that 

up? 

Mr. DELAHUNT. Without objection. 

Hearing none, we—— 

Mr. GRAHAM. I do, Mr. Davis. I say bravo to everything you said 

there. 

But it does seem that many of the objections that we have heard 

here and that you hear on this issue would be cured by the structure of this bill. The bill gives discretion to these judges, and these 

judges are used to making very complicated decisions and they can 

make proper decisions on complicated issues. 

So, if there is a problem perhaps that because of the nature of 

the case, these questions would come up, the judge just says, ‘‘Well, 

we will not televise this trial.’’ You hinted that you do not think 

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tion. Well, we will have to see, but it does mean that when these 

problems perhaps arise, the answer is the judge would just say, 

‘‘We will not televise this case.’’ 

Judge TUNHEIM. Mr. Davis, if I might. Mr. Chairman, Congressman Davis, very good points that you raise. One thing that we are 

quite concerned about is the inability to determine in advance 

where you are going to have problems with witnesses testifying 

with cameras. As you know from your career as a prosecutor, 

things do not go always as planned during a trial. 

Mr. DAVIS. I thought that was just me that happened to. 

Judge TUNHEIM. I think that happens to all of us on a regular 

basis. 

And trying to discern ahead of time what type of case would be 

appropriate for television coverage and what would not be is a very 

difficult chore. 

Mr. DELAHUNT. The gentleman from North Carolina, Mr. Coble? 

Mr. COBLE. Mr. Chairman, by your own admission, you are not 

Chairman Conyers, but I will stipulate that you have presided very 

adeptly. 

Mr. DELAHUNT. Well, I appreciate that particular kudo. Coming 

from you—— 

Mr. COBLE. For what that is worth. 

Mr. DELAHUNT [continuing]. That is of real consequence. 

Mr. COBLE. Good to have you—— 

Mr. DELAHUNT. And I welcome the new Ranking Member to my 

left, Mr. Chabot. 

Mr. COBLE. Good to have you all with us, and I will probably be 

brief. 

Your Honor, Judge Gertner, do you have any concern about 

courtroom security if proceedings in your courtroom were regularly 

televised? 

Judge GERTNER. I would have some concerns, but I am not sure, 

again, that with the Internet that this makes a difference. In other 

words, my picture and my words are on the Internet. Every time 

I issue a decision, they, you know, trot out the last picture of me, 

which is actually not bad if they keep on going back in time. So 

I am not concerned in that regard. 

I think that my point is that we are already there in a world in 

which information is on the Internet. We have to account for and 

accommodate for that even in a closed courtroom. I do not think 

this will materially add to those concerns. That is all that my point 

was. 

Mr. COBLE. Judge Tunheim and Mr. Richter, I was going to ask 

you all if your opposition would be assuaged if parties were allowed 

to move the court to prohibit television, but with the judge’s discretion finally ultimately prevailing, I take it that your opposition 

would not be assuaged from your response. 

Judge TUNHEIM. Mr. Chairman, Representative Coble, you are 

correct. An interesting experience here is in my home state of Minnesota in which the State court does permit cameras in the courtroom, but any party can veto that so that any side can decide that 

they do not want to have cameras in and judges do not have the 

discretion then. 

Mr. COBLE. Then that would prevail. 

109 

Judge TUNHEIM. And then that would prevail, which has resulted 

in cameras never being in the courtroom because, typically, if one 

side feels that they want cameras, the other side would probably 

be suspicious and not want it. 

Mr. COBLE. Ms. Cochran, do you see any avenue whereby the 

Federal courts could use this procedure to generate revenue? 

Ms. COCHRAN. Well, I think the tradition has been that the actions of Government are free to coverage by the news media, so I 

am afraid I do not see any opportunity for that. 

Mr. COBLE. Ms. Swain, have photographs, recordings or televised 

proceedings from the courtroom been litigated and what has been 

the result if you know? 

Ms. SWAIN. I actually do not know. 

Mr. COBLE. Does any of the panelists know? 

Mr. Richter? 

Mr. RICHTER. Let me see if I can address your question as I understand it. The issue, of course, of exposure through publicity is 

periodically litigated around the country, and this is one of the 

issues that, I guess, concerns us and should be of concern from the 

defense bar’s perspective, and that is that in order to show that 

publicity during the course of a trial has prejudiced a defendant’s 

rights, a defendant carries a very high burden on appeal of showing that prejudice and, oftentimes, many of the things that go 

along that may have, in fact, prejudiced the outcome against the 

defendant are not easily measurable. 

So, ultimately, very few of those cases are ever overturned on appeal as a result of publicity, and that is part of the concern that 

I think many in the defense bar have voiced in the past about legislation of this type. 

Mr. COBLE. Mr. Graham, I think I have time for one more question. What would be, in your mind or your opinion, the greatest 

challenge for Court TV to cover Federal court proceedings? 

Mr. GRAHAM. Well, we have covered Federal court proceedings, 

back during the experimental period, 1991 and the 3 years following that. We covered about two dozen. And would you believe, 

Congressman, we covered a Federal antitrust case, and people’s 

eyeballs were clouding up all across the country. Antitrust—— 

Mr. COBLE. That does tend to induce sleep. 

Mr. GRAHAM. Antitrust lawyers practice being dull, and let me 

tell you that this was a dull process, and we did not have a lot of 

people that stuck with us for the several weeks that that trial 

lasted. 

So, yes, we have covered Federal cases. The experiment did not 

permit us to cover criminal cases. Under this bill, we could, and I 

think that is where the most interest would be. 

Mr. COBLE. Thank you all for being with us. 

Thank you, Mr. Chairman. 

Mr. DELAHUNT. Before I go to Mr. Gallegly, I am going to claim 

my own 5 minutes at this point. 

And I noted in response to a question by Mr. Davis—I think it 

was you, Mr. Richter, that responded—that it is the position of the 

Department of Justice that cameras detract from the cause of justice. Now it is my understanding that every single State has some 

110 

rule, some like Massachusetts which I would describe as an expansive rule, one that I am familiar with. 

Why don’t I ask the entire panel is it your position that justice 

has been demeaned in the States since the advent of cameras in 

the courts of general jurisdiction and appellate courts in the various States? 

Judge Gertner? 

Judge GERTNER. Well, you know, the last time I spoke in favor 

of this bill, also on the panel was Judge Hiller Zobel, who had just 

come off handling the case of Commonwealth v. Louise Woodward, 

which was the Newton Nanny case in which he had international 

press, national press, and he had cameras. 

He talked about—this goes to Representative Davis’ point also— 

how good it was to present this case, to be able to show the wheels 

of justice on television and to demystify the State judiciary in that 

case. 

Massachusetts has a very expansive rule, as you noted. We do 

not hear of any problems. 

Mr. DELAHUNT. Judge, is there a crisis in the State courts now 

of detracting, to use Mr. Richter’s word, from justice? Has there 

been a clamor among the various State bars that you are aware of? 

Judge GERTNER. I think at this point what has happened as that 

as cameras have gotten more and more, as I said, inconspicuous, 

as people got more comfortable with them, the grandstanding problem, if it existed at all, did not exist, and courts and judges learned 

how to deal with it. 

Some of the problems that Mr. Richter raises also are endemic 

to 24/7 cable news coverage. The problem with pretrial publicity is 

not necessarily going to be enhanced with cameras. In fact, one argument is that having the real deal in television is better than having the caricature. 

Mr. DELAHUNT. Well, I would note also that I think it was Mr. 

Richter that noted that one of the solutions is press conferences on 

the steps of the courthouse. You know, some might describe that 

as the ultimate spin zone, and I would suggest that, you know, getting this information unfiltered to the American public gives them 

a much more realistic understanding of the process that is embraced in having an independent judiciary as opposed to simply 

lawyers standing out, putting the facts as they often do in a very 

favorable light to their client, whomever that client may be. 

Judge Tunheim? 

Judge TUNHEIM. You raise a very good question, Mr. Chairman, 

and—— 

Mr. DELAHUNT. Is there a problem in the States now? Are you 

concerned about those State courts going out there detracting from 

justice? 

Judge TUNHEIM. Generally no. I think that there have been trials 

that have not reflected well on the State courts systems. The O.J. 

Simpson trial comes to mind. And, secondly, I think there is a concern about the 30-second sound bite from inside the courtroom not 

reflecting well on the entire proceedings. 

Mr. DELAHUNT. The 30-second sound bite? I am unfamiliar with 

it within a courtroom. I am very familiar with it on, you know, the 

111 

cable networks, particularly in the aftermath of the trial as lawyers 

trot out with their clients and give press conferences. 

Judge Tunheim, in your written testimony, you make reference 

to the current policy of the Administrative Office of the U.S. Courts 

with regard to appellate courts permitting broadcasts of their proceedings. Now the Circuits as a whole already have the ability to 

permit the televising of proceedings, to set policy, to decide how 

those proceedings are televised, and yet you have a problem with 

individual appellate judges making those same decisions. Are the 

judges better when they are operating collectively as opposed to individually? 

Judge TUNHEIM. Well, Mr. Chairman—— 

Mr. DELAHUNT. Do we have more confidence when they are together as opposed to when they are making those individual—— 

Judge TUNHEIM. The Judicial Conference policy makes it an 

issue for the entire court to determine. If the court, pursuant to 

guidelines established by that court, wishes to open up appellate 

court hearings to cameras, they can do that, and two circuits, as 

you have noted, have done that, but it is pursuant to guidelines established by the entire court, and that is the rationale for that position. 

Mr. DELAHUNT. Do you feel that you have the capacity and the 

discretion to circumscribe appropriate rules—— 

Judge TUNHEIM. Well—— 

Mr. DELAHUNT [continuing]. You know, in the capacity of an appellate judge? 

Judge TUNHEIM. I may have the capacity, but perhaps not the 

discretion. 

Mr. DELAHUNT. Well, that is what this bill would do. It would 

provide you the discretion, and I, for one, have full confidence in 

the discretion that you would exercise. 

And with that, let me turn to my friend and colleague, Mr. 

Gallegly of California. 

Mr. GALLEGLY. Thank you, Mr. Chairman. 

I appreciate your testimony today, and I think you might find it 

a little unique because I happen to be the first nonlawyer in history to serve on the Judiciary Committee. So I have a little different perspective, and unique to most hearings, as a Member of 

Congress, I have more questions than answers, okay. So I hope you 

can understand and respect that. 

And listening to Ms. Swain, Ms. Cochran and Mr. Graham, I understand and completely understand your advocacy, and I know 

that Judge Gartner comes from a little different perspective with 

her advocacy than you do, and I respect that. 

Mr. Graham, I have watched Court TV as a consumer and as a 

viewer for many years, enjoy it. I find it not only entertaining, but 

extremely educational. I genuinely say that as a consumer. 

I do not have the benefit that my colleagues have in seeing firsthand in the trenches what happens in the courtroom and understanding the depth of whether this is competitive. It appears to me, 

though, that our principal objective as Members of this Committee 

is not to be an advocate for education in this arena. We certainly 

have an opportunity to be an advocate for education in other areas. 

112 

But our principal objective here, I would think, is making sure 

that we do not do anything that compromises the administration 

of justice, and I do not know that this would. I do not know if anyone could give me an example—perhaps Judge Gertner could—as 

to whether or not it could contribute to the administration of justice. 

I keep going back to as a consumer and as a viewer—I think 

probably most Americans that are not lawyers and there are more 

not lawyers—it hard to believe that when you live in this town— 

than there are just the rank-and-file people across the country—the 

O.J. trial. Perhaps this is not a classic example. 

And, Ms. Cochran, you know, in your testimony, you said that 

you believed that there would not be able infringement on the process of justice. 

Mr. Graham, you said that you are sure that this would not have 

a harmful effect on the administration of justice. 

First of all, Ms. Cochran, I am sure you followed the O.J. trial. 

I do not know anyone that did not in some degree or another. Do 

you feel that that was a good example of the effect that cameras 

could have on the proceedings? 

Ms. COCHRAN. I believe that the O.J. trial, whatever happened 

and whatever one thinks about how that process was carried out, 

that the most objective observer of what was taking place was the 

very small camera in the courtroom, that all of the other things 

that happened either happened because of the way the judge acted 

or the way the lawyers acted or it happened because of what happened outside of the courtroom on the courthouse steps. 

And so even though the O.J. trial is given as an example and the 

camera is blamed, the camera in the courtroom actually gave the 

public the most accurate picture of what was transpiring, and the 

public could make up their own mind, and members of the public 

made up their minds in vastly different ways about how justice 

was served. 

A few years later, there was a case in New York involving an immigrant named Diallo, and the New York police officers were on 

trial, and New York is not a State where cameras are readily available. But the Supreme Court said that cameras would be allowed 

in that court, and there are those who believe that because cameras were present that the verdict, when it came down, was more 

readily accepted because people could see for themselves in a very 

controversial and inflammatory case that justice had been done. 

Mr. GALLEGLY. I know I am about to run out of time, but I would 

hope that perhaps, Ms. Swain, you could join in—or Ms. Cochran 

or Mr. Graham—and just give me a very honest assessment as to 

whether, in your opinion, your objective opinion—and perhaps 

Judge Gertner as well—do you believe that the cameras in the 

courtroom had any effect on the way Judge Ito presided over the 

case or either Johnny Cochran or Mr. Shapiro? Do you think the 

cameras had any effect on the way the case was presented and, 

more importantly, the way it was presided over? 

Mr. GRAHAM. Well, I was there, Congressman, and I saw this 

firsthand. It is impossible to know what was going on in the minds 

of the participants that you discuss there, but I agree with Ms. 

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trol his courtroom. Some very feisty high-paid lawyers, defense 

lawyers, some racial overtones of the case that the judge should 

never have permitted to come out in this case. It was not a race 

case—— 

Mr. GALLEGLY. Did he have a tougher job because of the cameras 

or not? 

Mr. GRAHAM. I do not know. You know, I ran into Judge Ito recently out there in California. I was at a judicial meeting, and I 

said, ‘‘How are things going with you?’’ and he said, ‘‘You know, I 

still allow cameras in my courtroom,’’ and he says, ‘‘If you want to 

bring your cameras back out, you can televise a trial in that courtroom.’’ 

Very briefly, as you well know, after the O.J. case, the judiciary 

in California did a thorough study on just these topics we are talking about, and they concluded that cameras in the courtrooms of 

California were a beneficial thing and that it should stay. 

And in that same regard, Mr. Delahunt, part of your question, 

in the States that have cameras in courts, are they perceived as 

being harmful, what we have seen in Court TV is when we 

launched Court TV in 1991, about half the States permitted cameras in the trial courts, and now that figure is two-thirds. It has 

gone from a half to two-thirds in 16 years. What has happened is 

that the word has gone out from the States where they have cameras that it is a good thing, and others have copied that. 

Mr. GALLEGLY. Mr. Chairman, I know the red light is on, but it 

is not often that we have Ms. Swain on the other end of the microphone. [Laughter.] 

So I wonder if the Committee would indulge me in asking her to 

give us a response to the same question about the way the—— 

Mr. DELAHUNT. Without objection, the gentleman will have another 30 seconds. 

Mr. GALLEGLY [continuing]. Trial was presided over. 

Ms. SWAIN. You know, Mr. Gallegly, like you, I am, I think, the 

only nonlawyer on this panel. So I feel as though my comments 

would only be as an observer, rather than as a professional observer of this, as a citizen. So I think I will defer on being able to 

answer anything that is of use to you. 

I might say for the few members of the panel that have been 

around Washington as long as I have, when the early debates were 

happening over whether or not the Congress should be televised 

and, 7 years later, that the Senate should be televised, the arguments sound very similar to me today. Technology of any sort, if 

you look through social scientists’ eyes, is always disruptive, but 

then the institution adapts, and we believe the same thing would 

happen in this case. 

Mr. DELAHUNT. Mr. Chabot? 

Mr. GALLEGLY. Thank you, Mr. Chairman. Thank you for your 

indulgence. 

Mr. CHABOT. Thank you very much, Mr. Chairman. 

First of all, let me apologize to the panel. There are two bills that 

are on the floor today. One of them has to do with flood insurance, 

the other one has to do with the Small Business Investment Act, 

and I am the Ranking Member of the Small Business Committee, 

114 

so I had to go back and deal with a whole bunch of things relative 

to that. 

So I heard the first four witnesses here personally. I agreed with 

two of them. I disagreed with two of them, although I think they 

all make wonderful points. But I did not hear these three witnesses 

here. So this may be unfair, but could I ask each one of you just 

in a sentence or two give me your most persuasive argument or 

your most persuasive point for your point of view, whatever that 

might be? 

And I have a pretty good idea what that point is, or at least not 

what the point is, but what the point of view is. 

So, Ms. Swain, if we could start with you. 

Ms. SWAIN. Certainly. Briefly, I think actually Judge Gertner 

made the point well on our behalf, is that we are so far down the 

road really with so many Federal courts allowing audiotapes, 

where they do not allow cameras, and on same-day release of the 

audiotapes, we are putting them on television in their entirety with 

photographs and with graphics. So we are this far along, and the 

republic has stood as we have done this, and we think it will continue to if cameras are added. 

Mr. CHABOT. Okay. Thank you. It has even stood under Democratic control with the House and Senate for the first time in 12 

years. So I do not know how long it will stand, but—— 

Ms. Cochran? 

Ms. COCHRAN. Yes. Our position is that our members are the 

people who are making cameras work in courts at the State level 

and that the objections that we hear could just as easily apply to 

what transpires in a State procedure as in a Federal procedure, 

that we have made them work, we know of no instance in which 

the outcome has been reversed because of the presence of a camera, 

and we believe we can make it work at the Federal level as well. 

Mr. CHABOT. Thank you very much. 

And Mr. Graham? 

Mr. GRAHAM. What has happened here is that in the States 

where cameras are permitted in the trials, this is a no-brainer, this 

is a nonissue because everyone knows that the system works, and 

it is not harmful. 

As I mentioned in my earlier testimony, no one in no case that 

we know of, certainly no case that has been before Court TV, but 

in no other case in the last 16 years has a case been overturned 

or has a trial judge held that anyone’s rights were violated because 

of the presence of the camera, and our feeling is that if it is working, then it should be in the Federal courts which are so much 

more important in general than the State courts are. 

Mr. CHABOT. Thank you very much, Mr. Graham. 

Judge Gertner, if I could go to you. Our colleague, Elton Gallegly, 

was talking about the administration of justice in his questions and 

made the point about detracting. Could you give an example of it 

contributing to the administration of justice? 

You made a strong point about trials, in the Supreme Court’s 

own words, being a public event, and it seemed to me that that 

might be a pretty good argument where they are contributing to 

the administration of justice, cameras would be. Would you want 

to comment on that? 

115 

Judge GERTNER. First is the O.J. Simpson paradigm, which I 

think would not happen again today and was idiosyncratic to the 

judge and the lawyers in that case. But even in the O.J. Simpson 

case, there was a huge number of people who distinguished between ‘‘I think he is probably guilty, but not beyond a reasonable 

doubt.’’ That was stunning to me as a defense lawyer because that 

was a distinction, in fact, that you have spent your life trying to 

identify, and it was terribly important that people identified that. 

The case in which it contributed to the administration of justice, 

I think, was the Woodward case, the Newton Nanny case, which 

had gavel-to-gavel coverage. The judge would actually talk to the 

foreign press at the end of every day explaining what the proceedings were. He understood he had a public event, and when the 

verdict came down, the public understood how that had happened. 

I have seen so many times that I would be presiding over a trial 

as a judge and the press would be there for one case, one party’s 

side and not the other, and then the verdict would come down reflecting the defendant’s side or the side that they had simply not 

been a participant of, and there would be this extraordinary outcry 

about how did it happen. Well, if you had seen the proceedings, you 

would have understood how it happened, and it seems to me that 

that is where we want to put the public. 

Mr. CHABOT. Mr. Chairman, I am almost out of time. Just let me 

make a couple of real quick points in the time I have. Can I ask 

unanimous consent for 1 minute to finish? 

Mr. DELAHUNT. Thirty seconds. I am sensing a revolt among—— 

Mr. CHABOT. Okay. 

Mr. DELAHUNT [continuing]. The other Members. 

Mr. CHABOT. Real quick. Thank you. Just a couple of quick 

points. 

First of all, I think the point has been made very, very strongly 

that, you know, the Federal courts would basically just be keeping 

up with what has happened already in the experience of the States, 

and if we had seen it been a disaster at the States, I would not 

have proposed this, Mr. Delahunt would not be for it. But, clearly, 

we have 50 States out there that are doing some form of cameras 

in the courtroom, and as was mentioned, the republic still stands. 

Judge, with all due respect, I would just make the point that if 

we were telling you you had to do it, you know, we are separate 

branches of Government, co-equals, et cetera, ‘‘You have to do it. 

You have to do it,’’ I could understand the objection, you know, 

even though I really do think they ought to be open. But we are 

giving judges the discretion to do it. A judge, if he does not want 

to do it in his courtroom, does not have to, she does not have to, 

and so that is why I am just surprised at the level of anxiety on 

the part of the judges, but I know it is there. 

And then finally just on the point of the witnesses being afraid 

of cameras and things, I might have even thought that maybe 20 

years ago. But there are many houses in America now where the 

video cameras are so common. You know, people are always getting 

videotaped. They are on camera all the time. It has become almost 

second nature, and I just do not think it is as scary or hostile an 

experience as it once was. So those are the points I wanted to 

make. 

116 

Mr. DELAHUNT. Let me go to a Member who is not afraid of a 

camera, and that is the former Attorney General of the State of 

California, my good friend—— 

Mr. LUNGREN. If we threw out the cameras, we would not be asking for extra time. [Laughter.] 

Since everybody is talking about the O.J. Simpson case, do you 

remember what they said there? ‘‘If it does not fit, you must acquit.’’ 

I have not heard a single argument from those who oppose this 

that is relevant to not allowing cameras in appellate courts or the 

United States Supreme Court. Everything you have said is the impact on witnesses, impact on parties, and that, for the life of me, 

underscores the silliness of the argument that somehow the American people do not have a right to see Government in action at the 

highest level. 

And while I disagree with Mr. Graham that somehow the Federal courts are the most important court, which you just said—I 

disagree with that very strongly—the fact of the matter is the Supreme Court does have a greater affect because of its ability to finally determine interpretations of the Constitution. But I can see 

nothing that has been said here that in any way would suggest 

that somehow the presence of a camera in the courtroom would unduly influence those who are on the Supreme Court or those who 

are on the appellate courts. 

But now getting to the question of the trial courts, man, the only 

image I have in my mind when I hear the testimony of those who 

oppose this is we are talking about the Federal Wizard of Oz. We 

sort of know what is being said, but we cannot dare see the wizard 

because somehow that is going to unduly influence us, and I almost 

wonder if you want us to say that jurors should have to close their 

eyes when they are sitting in the jury box because as long as they 

hear it, it is okay, but if they see it, they are unduly influenced. 

One member of the Supreme Court many years ago talked about 

the States of the union being the crucibles of experimentation, and 

so, Judge Tunheim, we have had the crucibles of experimentation 

now for how many years with the courts being televised in the 

most gut-wrenching cases because that is the ones the States have. 

Most of the violent crime cases are at the State level, not the Federal level. Most of those cases dealing with children’s rights and domestic relationships are State, not Federal. 

I would just ask you very directly something that was only hinted at a moment ago. Are you telling us that we have had a substantial diminution of the rights of defendants and parties in our 

courts at the State level since cameras have been allowed? 

Judge TUNHEIM. Mr. Chairman, Congressman Lungren, of course 

not. I am not saying that. I think what I am saying is it is very 

difficult to quantify and very hard to say what the impact of cameras has been in courts. Defendants have raised these issues on appeal. As it has been properly stated, it is rare that a case has been 

overturned. But how do you measure and how do you demonstrate 

that your rights have been impacted by the presence of cameras in 

a particular—— 

Mr. LUNGREN. But I was asking for your opinion—— 

Judge TUNHEIM. It is very difficult. 

117 

Mr. LUNGREN [continuing]. As to whether you think there has 

been a diminution of the protection of rights of individuals in the 

courtrooms that have been exposed to cameras because your 

premise is that that is necessarily what will follow if this bill becomes law. 

Judge TUNHEIM. Well, I think what I am saying, Congressman 

Lungren, is that there is a significant risk of it, and I do not know 

how we can quantify what has happened in the State courts over 

the past 20 years when cameras have been there. It is very difficult 

to determine how many rights have been impacted by the cameras. 

It is a concern. 

Mr. LUNGREN. Well, I will just give you an analogy of your argument. When I was Attorney General of California, I helped author 

Megan’s Law. The same arguments I am hearing from you are 

what I heard then, because under the law for a long period of time, 

people who registered as sex offenders was public information, except that the public could not get to it. They were shielded from 

it. It was difficult to even try and find it. 

And when I first came forward with the idea, it was I was going 

to deprive these folks, even though they had been convicted, of 

their other constitutional rights and we could not allow the public 

to handle this information, which is the same argument I hear 

here. 

And you say to us, look, these are public trials because people 

are allowed to be in here. And maybe I am just a little irritated 

about this, but as I grew up as a kid, I knew I did not have a 

chance to come to Washington, D.C., and I could not get in the galleries. One of the great things about C-SPAN is it opened it up to 

the entire United States. 

What is the craziness that says, yes, the Supreme Court is public 

so long as you can be one of the few people that can get into the 

few seats that are there, and so long as you can stand in line and 

so long as you can get here? I mean, what does public mean to you 

that says that only those selected people that are able to get there 

can do it, number one. 

And, number two, we talk about demeanor of witnesses. I like to 

eyeball witnesses. I like to see what they say. What is the matter 

with the public eyeballing the witnesses through the TV cameras? 

Judge TUNHEIM. Mr. Chairman, Congressman Lungren, I think 

what we are trying to say is that it is the potential impact on the 

testimony of the witness of having a camera staring them in the 

face. 

Mr. LUNGREN. So you have the discretion of the judge to make 

that determination—— 

Judge TUNHEIM. You do—— 

Mr. LUNGREN [continuing]. Under this bill. 

Judge TUNHEIM. But your discretion is at the beginning of the 

trial whether or not to have the proceedings open or not, and, as 

I indicated earlier, things change during the course of the trial. 

I have to also remind the Members that transcripts are fully 

available. The courtroom doors are open. The briefs, every filing in 

court is available through the Internet. We have made these proceedings open. 

118 

The concern is about how the cameras affect the testimony of the 

witnesses, their demeanor as reviewed by the jury, and the impact 

on the truth-finding function of the trial court. 

Mr. LUNGREN. I appreciate that. The only point I would make is 

we have tested that in all the other States in the union. The crucibles of democracy’s experimentation has taken place. With all due 

respect to Mr. Graham, perhaps the Federal courts could learn 

from the State courts even though some may think the Federal 

courts are most important. 

Mr. DELAHUNT. I would associate myself with the final conclusion and remarks of the gentleman from California. 

I understand, Judge Tunheim, that you have to leave at 3. Is 

that correct? 

Judge TUNHEIM. Mr. Chairman, I should leave. I need to get to 

a family funeral tomorrow morning—— 

Mr. DELAHUNT. Sure. Then this would be an appropriate—— 

Judge TUNHEIM [continuing]. In Congressman Lungren’s home 

State. 

Mr. DELAHUNT. So this would be an appropriate time for you before I call on the gentleman from Florida. 

Mr. Keller? 

Judge TUNHEIM. Thank you very much, Mr. Chair. 

Mr. KELLER. Thank you, Mr. Chairman. 

And as I listen to the witnesses, I am very impressed with all 

of you on both sides. To me, this turns on two central issues. First, 

we have to weigh the first amendment right of the public to view 

public trials versus the concerns of the Judicial Conference that a 

witness on TV might pontificate his personal views or promote his 

commercial interests. 

Are we really worried about a witness saying, ‘‘I will tell you 

whether the traffic light was red or green, but, first, let me just say 

that we should stop global warming and shop at Joe’s Hardware 

Store?’’ I think if that is the true analysis, you have to come down 

on the side of the first amendment here. 

Now the second issue then becomes: Are Federal judges wise 

enough to exercise their discretion about saying yes or no to having 

cameras in the courtroom? I have to think they are smart enough. 

Let me give you an example. Let us take a Federal judge sitting 

in the Southern District of New York. Osama bin Laden has already been criminally indicted by a Federal grand jury in New 

York for terrorism-related activity. 

If he is captured somewhere in the hills of Pakistan and brought 

to New York City, in light of the high-profile nature of his crime 

and its impact on thousands of people, don’t you think that it 

would be best to have a public trial where all of us can see it on 

TV, especially in light of all the kooky conspiracy theories relating 

to 9/11, and we can see ourselves what the evidence is with his various activities? 

On the other hand, if I am that same Federal judge sitting in the 

Southern District of New York, and I am presiding over the prosecution of a mid-level Mafia thug who has been charged with extortion, and I see that the witnesses include many undercover FBI 

agents, as well as lots of paid informants and fearful shopkeepers 

who are going to be witnesses for the prosecution, I can tell you 

119 

I would probably exercise my discretion to say ‘‘no cameras’’ in that 

circumstance. So I have to believe that the judges are smart 

enough to make that call. 

Mr. Graham, let me start with you. As a fellow Vanderbilt Law 

School graduate, you have great credibility with me here. Let me 

have you address some of the concerns. You have been covering 

State courts and Federal courts for a long time raised by the Judicial Conference. In all your years, have you seen a big problem in 

these televised State court trials about witnesses getting up there 

and promoting their own commercial interests? 

Mr. GRAHAM. No, I have never seen that happen. You know, 

when he mentioned that, I thought, well, we really are wandering 

far afield here on our objection because I do not think that would 

ever really happen in the real world. 

Mr. KELLER. Have you ever seen a big problem at these televised 

State court proceedings about witnesses getting up there and pontificating their personal views about various political issues or 

other things? 

Mr. GRAHAM. Well, I have seen them try, but I have seen them 

put down very quickly by the presiding judge. 

Mr. KELLER. And, next, let me talk to you about the issue of witnesses being nervous. Obviously, many State court trials are right 

there on national TV. O.J. is a good example. Is there any evidence 

that somehow a witness would be more extra nervous in a Federal 

court televised trial than in a State court nationally televised trial? 

Mr. GRAHAM. I cannot see what the difference would be. 

Mr. KELLER. Now isn’t it true that right now 43 States already 

allow television for civil court proceedings in State court? 

Mr. GRAHAM. State. Some of them criminal as well. 

Mr. KELLER. And I believe 39 States allow TV coverage in criminal cases, 43 in civil cases. Is that about right? 

Mr. GRAHAM. I have seen those figures, yes. I believe they are 

accurate. 

Mr. KELLER. Okay. Now one of the things Mr. Tunheim said before he left was that, ‘‘Well, in a Federal court, we are dealing with 

people’s livelihoods and money, and liberty is at stake.’’ In a State 

court action in a criminal prosecution, isn’t someone’s liberty at 

stake? 

Mr. GRAHAM. Certainly. 

Mr. KELLER. And in a State court suit when you have a civil action, isn’t money often at stake? 

Mr. GRAHAM. Yes, it is. 

Mr. KELLER. Okay. Let me get my remaining person against 

the—our prosecutor here. Sorry about that. 

Mr. Richter, let me get your side of this. Do you believe that Federal judges are wise enough to exercise their discretion about 

whether to say yes or no in terms of having cameras in the courtroom? 

Mr. RICHTER. Thank you, Congressman. 

I would direct you to a decision in which this issue was taken 

up before the 11th Circuit Court of Appeals a number of years back 

and the 11th Circuit Court of Appeals itself addressed really that 

question, and what it said is that it came down on the side of a 

per se rule, one blanket rule, for the following reason, as opposed 

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to a case-by-case approach as presumably would occur with this 

legislation, and that is because of the difficulty that a judge has— 

and this is the court noting this—will have on detecting all the potential adverse impacts that flow from a camera. And let me just 

identify a few of those that it is likely a judge would be unable to 

really identify. 

Mr. KELLER. Let me just have you be brief, and I will tell you 

why. I would be happy to hear it, but we are going to have votes 

here in a second, and I want to get to our other judge and ask her 

some questions. So, if you could wrap that up kind of in a summary 

form. 

Mr. RICHTER. Well, secondly, I think what we are dealing with 

here is a balancing between the benefits and the potential harms 

that are out there. I think all the panelists agree that there are 

potential harms out there. Where we disagree, I think, is how 

heavily we weigh the potential benefits here. 

Now what the 11th Circuit said in that is because the public and 

media already have full access at some point to a degree, the down 

sides did not outweigh the up sides of doing that, and I think that 

is where the department comes down on that. 

Mr. KELLER. Thank you. 

Mr. Chairman, I will yield back my time. 

Mr. DELAHUNT. Thank you. 

And let me now go to a former jurist, an eminent Member of the 

Committee, Mr. Gohmert from Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And thank you, members of the panel. I really appreciate your 

being here. 

Fred, you do not remember me, but in the early days of Court 

TV, you had commentary on a case of mine. 

But let me comment very briefly, and I would ask if in my questions I not be restricted by a 5-minute rule, but by the rule of the 

number of words that the gentleman from Massachusetts used. I 

think we will come closer to being equal. I cannot talk that fast. 

Mr. DELAHUNT. So ordered. [Laughter.] 

Mr. GOHMERT. And I realize Judge Tunheim had to leave, but let 

me address a couple of things, and I am talking from personal experience here. 

He said that it could change the activity or conduct in the courtroom. I can tell you this. It could make them better because you 

do not have lawyers and even judges that want to come face that 

television camera unprepared, and if there is anything that frustrates judges, it is having lawyers coming in the courtroom unprepared. 

They know they are going to be on TV, they would come in 

ready, and then it is up to the judge to control the conduct in the 

courtroom. 

One other case, our chairman of the Judicial Conference had referenced the Estes case and a quote from Judge Clark. He was referencing Billy Sol Estes, tried in the early 1960’s in the 7th District 

Courtroom in Tyler, Texas. That is the courtroom where I presided 

30 years after the trial. 

As it happens, just this week, the local prosecutor passed away, 

a fine man, Democrat, good friend of mine, Weldon Holcomb. 

121 

Weldon told me that during the course of that trial, the judge had 

no rules as to the conduct of the media. They were everywhere. He 

said at times, there were cameramen that would walk up behind 

the judge, photographing, taking pictures around, that they just 

had free reign. 

I can tell you I allowed a camera in the courtroom, and I never 

had a problem because it was very clear that in order to bring a 

camera in the courtroom or to get footage from that camera, as a 

member of the media, you had to sign a motion seeking permission 

to have a camera in the courtroom or to get footage in the courtroom. 

Now the case I tried on Court TV that you all came in at the last 

minute and wanted to cover, actually, I asked, ‘‘Why are you interested in this case? It is going to be a long case. It has been tried 

once. We know it is going to be a long case.’’ And I was told by the 

Court TV personnel, ‘‘Well, initially, we were not interested in televising it, but O.J.’s case just got moved to the spring, so you will 

be a great filler.’’ 

But anyway, with the order allowing camera in the courtroom or 

footage, it allowed me to reach my control outside the courtroom. 

I was able to control the sanctity of the proceedings like a judge 

cannot do if they do not have that leverage because, let’s face it, 

whether you are in Congress or you are in the courtroom, it is all 

about leverage. 

And so we had the most interesting case, from what they tell me, 

in Smith County history. The county was evenly divided. We had 

three TV stations that wanted to cover it. They all had to sign the 

motion. Court TV had to sign the motion. It allowed me to control 

who was interviewed that was involved in the case. 

It allowed me to prevent, not just in the courtroom, but outside 

the courtroom until that case was over, any photography of any 

juror or any witness that I did not allow because if anyone violated 

that motion that they signed and my order that followed, they were 

subject to contempt, and they were subject to sanctions. I controlled 

the media coverage for my trial. 

Now Judge Ito seemed like a great guy, seemed like a really 

smart kind of guy I would love to hang around with, but he did 

not control the courtroom, and when I saw him putting hourglasses 

that he was getting through the mail or from people up on his 

bench, I knew he was concerned and the cameras were a distraction to him. That was none of his business. 

And as I recall, he said, ‘‘Now the jurors and all the parties have 

heard this tape of Mark Fuhrman, but since the public has a right 

to know, we are going to sit here and we are going to listen to it 

on camera,’’ then I knew he had lost his way. That was none of his 

business. His business was conducting the trial and making sure 

they had a fair verdict. He could have handed that out. So we know 

we had a judge lose his way a little bit in that. 

But the judge can ensure that the truth comes out, and when it 

comes to the allegation that a witness may be more nervous, maybe 

they are, maybe they are not. I can tell you I think nervousness 

is a good thing in a witness. It makes potential inaccuracies come 

to the light and easier to observe. Perhaps you have seen that. 

122 

Also, the judge has said it may make it more difficult for getting 

witnesses to testify, and I have experienced that. I am sure we all 

have. There is a thing called a subpoena and officers with handcuffs, and just like I found if people cannot shut their mouth in the 

courtroom, duct tape is very helpful, I also found that if people are 

not willing to come to court and they are reluctant to testify, officers with handcuffs and guns are very helpful. So I do not see that 

as being all that helpful as an assertion. 

The Federal judges may say that they are not paid adequately 

to deal with the media, and I would submit they are not paid adequately to do the job they are doing. When you can have first year 

law students or people come out of the first year of law school making more than judges, then it is time that we gave them a raise, 

and I was hopeful we were going to get that filed this week, as I 

understand, maybe next week to give them a raise, and then they 

will feel better about dealing with this. 

But I would submit to the Chairman and to other Members seeking input after the hearing from our witnesses, I would like to 

tweak this bill a little bit to make sure that judges have that power 

to require a motion and that they have the power to fashion sanctions. But that is the one thing I have never heard anybody on 

Court TV or anyone else say. It gives the judge so much more control. 

When my predecessor tried that case that ended up on Court TV 

for 10 weeks, he did not allow a camera in the courtroom. They 

chased witnesses. They chased jurors. He had no control outside 

his courtroom. When I did it, I had total control. 

And I would also add, it has advantages, too. We had a witness 

in a hearing outside the presence of the jury that was supposed to 

turn over all of his materials that he had used in formulating his 

opinion, his expert opinion, and the judge from Minnesota, as I recall, after we broke for lunch, gave the defense time to review what 

had been provided. After lunch, we came back and the prosecutor 

and the defense attorney said, ‘‘Judge, we need to see you in chambers.’’ 

The defense attorney’s office had gotten a call, as I recall, from 

somebody from Minnesota who said they believed as the witness 

was turning over this big stack of documents and a computer disc 

that he may have palmed a computer disc and put it in his pocket, 

and they got that information to his office in Tyler. They passed 

it on to him. 

They approached me. We got with the Court TV editing room, 

watched an instant replay of the witness, and saw that—nobody 

had seen it—he palmed a disc, took it and stuck it in his pocket, 

and it changed a little bit of the outcome of how that played. 

But there are all kinds of advantages, but the judge must control 

what they do. 

Mr. DELAHUNT. Thank you, Detective Gohmert. 

Mr. GOHMERT. Well—— [Laughter.] 

Mr. DELAHUNT. Appreciate that. 

Mr. GOHMERT. Well, I would ask the Chairman would you be 

open to some little tweaking to allow—— 

Mr. DELAHUNT. I mean, I think, you know, Mr. Chabot has indicated that accommodations have been made in the past, and as 

123 

long as the core purpose of the proposal remains intact, I think we 

would welcome that discussion among Members of the Committee. 

Mr. GOHMERT. Thank you. 

And thank you, witnesses. 

I know I did not ask any questions, but I had a lot to testify 

about. So I appreciate it. 

Mr. DELAHUNT. Well, we are glad you were able to get it off your 

chest. [Laughter.] 

You know, we are at the end of this round, and I would ask if 

any of the Members wish to make further inquiry. I would be 

pleased to grant them as much time as they may consume and as 

much time as the panel is willing to indulge us. 

Mr. LUNGREN. Mr. Chairman? 

Mr. DELAHUNT. Mr. Lungren? 

Mr. LUNGREN. If I could just ask Mr. Richter a couple of questions. 

In your testimony, you outlined some serious concerns, and so I 

would just like to ask you if the way the bill is written, which allows the discretion of the judge, would not take care of that. You 

are saying, ‘‘We are concerned with the spillover effects from cases 

where co-conspirators are tried separately.’’ Wouldn’t that be a case 

in which the prosecutor would ask that perhaps that not be televised for that very purpose? 

Mr. RICHTER. It certainly could be, yes. 

Mr. LUNGREN. I mean, wouldn’t you think the judges would be 

sensitive to that as they are to other requests to be made when you 

have those kinds of considerations? 

Mr. RICHTER. Sure. That is clearly something that if the issue 

was flagged and put before the judge, that we would hope a judge 

would come down and take that in consideration. The problem we 

see, Congressman, is that there are many other harms in addition 

to that that are not necessarily so easily quantified. 

Mr. LUNGREN. Well, let me ask you about a couple others. You 

say that, ‘‘The bill fails to ensure that the attorney-client conversations and confidences are protected.’’ Talking about what former 

Judge Gohmert said, wouldn’t that be something that could be controlled by the judge? 

Mr. RICHTER. It could be. 

Mr. LUNGREN. And let me ask those that have actually done this 

in State cases, have you run into a problem where there has been 

a complaint that attorney-client conversations and confidences 

have been picked up and broadcast? 

Mr. GRAHAM. At Court TV, we take steps on the front end to prevent that so that it does not happen. In the wiring of the courtroom 

and the placement of the microphones, we have in mind the fact 

that we do not want to pick up any privileged conversation, and, 

to my knowledge, it has not happened. 

Mr. LUNGREN. What about conversations between the judge and 

the lawyers, sidebar? 

Mr. GRAHAM. Well, the same thing occurs, and judges are very, 

very vigilant about sidebar conversations, as I am sure you know, 

and, generally speaking, the judges see to it—they really do not 

have to with Court TV because we see to it—in case the broadVerDate Aug 31 2005 14:09 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00127 Fmt 6633 Sfmt 6601 H:\WORK\FULL\092707\37979.000 HJUD1 PsN: 37979
124 

caster does not have experience in it, that they just do not pick up 

sidebar conversations. 

Mr. LUNGREN. Mr. Richter—— 

Mr. GRAHAM. Some—— 

Mr. DELAHUNT. If the gentleman would yield for a moment? 

Mr. LUNGREN. Yes. 

Mr. DELAHUNT. You know, let me opine, put forth a premise. I 

think what we are discussing here is whether we have confidence 

in both the judgment and the integrity of the individual participants in the judicial process. Mr. Richter indicated that it was an 

11th Circuit case where—and maybe I am mischaracterizing his 

words—it was almost as if the court—and I did not get the name 

of the decision—wanted to alleviate the burden of discretion from 

individual judges. 

I mean, you know, if that is the premise of our jurisprudence, 

why don’t we just, you know, mandate everything, you know, from 

sentencing on? Let’s really start to restrict judicial discretion. Do 

we have confidence in our prosecutors that they are going to protect in some aspects the rights of the defendant as well as the administration of justice in a larger sense? I mean—— 

Mr. RICHTER. If I might respond, the case called United States 

v. Hastings—I do not believe the court was opining with regarding 

to a lack of confidence in judges to identify the kinds of points that 

Congressman Lungren credibly is identifying, and, obviously, we 

would hope, of course, that the parties to a case would do their utmost to identify pitfalls and risks and problems. 

What the court in Hastings identified, however, and what I think 

is of deep concern from the Department’s perspective is that there 

are things that cannot be identified and cannot be accounted for. 

So, for example—— 

Mr. DELAHUNT. But let me interrupt you. I mean, can’t a judge 

and a prosecutor and counsel for the defendant—aren’t they situated to determine potential problems and issues? They are more familiar with the case than the collective position of the Department 

of Justice or even, with all due respect, to the perspective of one 

particular circuit court of appeal? 

I mean, I hear—I do not know whether it was from you, Mr. 

Richter, or maybe it was from Judge Tunheim—about impacting 

negotiations as it relates to settlements or even being used as a 

tool in terms of negotiating plea agreement. I mean, give me a 

break. 

You know, I would challenge the department and anyone to come 

forward and present, you know, some empirical data that would establish that that the threat of a camera in the courtroom has been 

used as a tool in terms of affecting a plea bargain. That argument 

just is silly. 

You know, we can create all sorts of scenarios that have no basis 

in reality. We all live in the world. We are all familiar with the 

experience. I think it was maybe Judge Gertner that said, I mean, 

we have—well, in Massachusetts—26 years of experience. This is 

not something new. It would be my position that the Federal Government or the Federal system is way behind, way behind the 

States. 

I yield to you, Mr. Lungren. 

125 

Mr. LUNGREN. I would like to raise this because Mr. Richter 

raises this in his prepared testimony, and I would like Mr. Richter 

to respond and also Judge Gertner, and that is the assertion that 

‘‘The bill does not protect against the televising of evidence that 

should not be disseminated except to the limited degree necessary 

to ensure due process and fair trial, for example, sensitive information relating to terrorism prosecutions and that the bill does not account for the increased harm caused by wider than necessary dissemination of sensitive law-enforcement techniques when disclosed 

in open court.’’ 

I am concerned about those two things. I presume judges would 

take care of those as they take care of unnecessary dissemination 

in the open courtroom of those things. But, Mr. Richter, if you 

could, you know, sort of flesh that out, I would appreciate that. 

Mr. RICHTER. Sure. 

Mr. LUNGREN. That is a concern of mine, and particularly in terrorism, that would be a generally unique circumstance for Federal 

court versus State court. 

Mr. RICHTER. Well certainly. Obviously, when we go through a 

decision in which we are going to make use of information that is 

classified and make a use decision that the attorney general signs 

off on to authorize, with, obviously, the consent of the classifying 

agency, the ultimate declassification of information so that we 

could use it during the course of a criminal proceeding, we necessarily have to calculate some of the risks, obviously, to national 

security in weighing that against the benefits of going forward with 

a criminal prosecution. 

The concern we have, of course, is that to the extent that you are 

televising a proceeding—and more than just the one-time broadcast—the fact that broadcasts now in the modern world do not just 

include major networks or Court TV or C-SPAN, but also include, 

of course, bloggers and all kinds of Web sites and all kinds of 

unique other delivery mechanisms. 

Mr. LUNGREN. Al Jazeera perhaps. 

Mr. RICHTER. And Al Jazeera, for example, yes. 

And so when information is conveyed in a courtroom, at some 

level, there is still a degree in a continuum of privacy for any information that is conveyed because you are only telling the people 

that are in that courtroom. Now some of those people may go out 

and tell a lot of other people, and the information may be disseminated. But there is a difference to some degree. 

There is, I think we all have to concede, a difference—otherwise, 

we would not have this bill—between the amount of dissemination 

that follows from a regular proceeding that is not televised or in 

which cameras are not present, and the amount of dissemination 

possible when cameras are there. 

So I think from a national security perspective, obviously, in 

those kinds of cases, if such a bill like this existed, we would be, 

one, factoring in the possible risks. Again, it will depend on the 

judge that we draw under a bill like this, and that, obviously, is 

not something we know until the charges are filed and we go forward. 

And so while we would, of course, hope under those circumstances that a judge would come down on the side that you, 

126 

Congressman, wisely have indicated you would. There is certainly 

no guarantee, as this bill is currently drafted. 

Mr. LUNGREN. Judge Gertner? 

Judge GERTNER. Well, we already have some experience with 

this, even in the Federal courts. The Federal court now, all our 

records, all the filings are electronic, and we have had to come up 

with degrees of access because there are some things that—Social 

Security numbers, all sorts of things—should be sealed, things that 

are ex partes, things that may be sealed and the lawyers only have 

access to, things that are more broadly sealed, and literally we 

have come up with electronic devices that would affect who has access to what. So, again, it was a technical issue, and we worked 

on that. 

In the open court—I have an electronic courtroom—likewise, I 

had to learn to deal with how contemporaneously information was 

now put on the screens. So we put in a kill switch so that if the 

information as not properly admitted, I could just press the button. 

It would then be only for me or only for me and counsel. I do not 

remember who it was that said that this is going to happen, and 

we have to come up with techniques and rules to identify how to 

control it. 

Terrorism is a unique situation, and it may be that those trials 

ought to not be televised. Again, even with respect to ordinary public trials—I am in the middle of a patent case now—portions of the 

case deal with trade secrets. We empty the courtroom, and we 

move on. It seems to me the parties in the case are able to identify 

what the concerns are, and there is not a court in the country that 

would not be deferential to those concerns, particularly given how 

hostile judges are to cameras. 

What is going to happen the day after this bill is passed is not 

that, you know, suddenly the Federal courts are going to be wide 

open. This is going to proceed in baby steps, as it should. 

Mr. DELAHUNT. Mr. Keller? 

Mr. KELLER. Thank you, Mr. Chairman. 

Let me begin by going to Judge Gertner. Why is it that you think 

there is a split among the Federal judges the way that there is? 

Is it possibly a deference by some of them just to the Judicial Conference and to other folks, or do most judges in the Federal genuinely oppose the cameras in the courtroom? 

Judge GERTNER. That is a very hard question for me to answer. 

I think that one is in deference to the Judicial Conference. [Laughter.] 

Mr. KELLER. Okay. 

Mr. DELAHUNT. Hit that kill switch, please. 

Judge GERTNER. Right. I love that kill switch. 

I think that part of it is the O.J. Simpson case completely soured 

the Federal bench on this issue. I think that it is also safer to say 

no than it is to engage with the technology. 

Mr. KELLER. It would appear to me that maybe they do not want 

to have the discretion because that would put them in a tough view 

on those situations when they say no. 

Judge GERTNER. No comment on that. 

Mr. KELLER. All right. 

127 

Let me go to the next question here. Mr. Richter, based on the 

policy arguments that you have made here today, is it your view 

that the 43 States that currently allow TV coverage in civil trials 

and 39 States which allow TV coverage in criminal trials are wrong 

to do that? 

Mr. RICHTER. Well, as we all know, we live in a Federal republic, 

and it is the decision of each individual State to make its own decisions about how each individual system of justice operates in those 

States. Certainly, in formulating our position, we—— 

Mr. KELLER. But do you see what I am getting at? The same policy reasons that you have made could be made by the State judges 

as well, correct? 

Mr. RICHTER. Yes. We have looked, of course, and examined 

those experiences to the degree that you can ascertain anything. 

The concerns that we have—and, again, I have been cut off a couple of times on this—there are things that cannot be quantified, 

that simply cannot be identified by a judge, that are not going to 

be quantifiable in a case such that it would ever lead to reversal. 

You know, when—— 

Mr. KELLER. What is a unique concern that is different in the 

Federal courts than State courts? 

Mr. RICHTER. Well, I do not know that it is necessarily unique. 

I think some of these concerns—— 

Mr. KELLER. All right. Let me stop you there. 

Mr. RICHTER [continuing]. There are always significant security—— 

Mr. KELLER. I understand. My focus—— 

Mr. RICHTER. There are significant security—— 

Mr. KELLER. I understand, and I—— 

Mr. RICHTER [continuing]. Concerns that extend at the Federal 

level that are far greater in many circumstances than you find at 

the State level. 

Mr. KELLER. All right. Let me stop you there because I do not 

want to go too far, but it is a Federal crime to misuse the 4-H emblem. Murder is typically a State crime. So I think it is a pretty 

broad generalization to say, ‘‘What we do here in Federal court is 

so important and unique, we cannot have cameras. But what they 

do in State court is not that big of a deal, so it is okay to have cameras.’’ Would you agree with me at least that that is a little too 

broad? 

Mr. RICHTER. I was a State prosecutor. I prosecuted lots of cases 

as an Assistant District Attorney. I know that the work that State 

and local prosecutors and State and local law enforcement does is 

God’s work and some of the most important work that we do in this 

country. 

What I am trying to articulate is what we believe is best for our 

Federal system of justice and the cause of justice at the Federal 

level. 

Mr. KELLER. Let me just comment, too. One of my bright colleagues, Judge Gohmert, has said that essentially maybe if we give 

these judges a raise, they will swallow the TV cameras. [Laughter.] 

I am summarizing there here, and I am empathetic. But let me 

just point out to my esteemed jurist who knows a lot more about 

these issues than I do that the Supreme Court justices made 

128 

$202,000 a year. Judge Judy makes $27 million a year. So we are 

never going to be able to come up with that kind of money to make 

them happy. But I sympathize that they are underpaid for the 

great value that they bring to society. 

I would also point out that they write decisions like Brown v. 

Board of Education. She wrote a book called ‘‘Don’t Pee on My Leg 

and Tell Me It’s Raining.’’ I will let you know which one has a bigger W-2 form, but sometimes life is not fair. 

Let me just go to now Ms. Swain. One of the things I am having 

a hard time with on the folks who want to shut down the cameras 

in the Federal courtroom is they are saying, ‘‘Well, it is okay,’’ as 

Judge Roberts said, ‘‘that somehow we have audiotapes in the Federal courtroom. It is okay to have the sketch artists. It is okay to 

have the journalists. It is okay to have members of the public 

present. But it is somehow not okay to have the cameras there.’’ 

Can you articulate why you think you should have the cameras 

there if all the other stuff is being allowed? 

Ms. SWAIN. Well, I think you have just made my case for me, 

that the discrimination between the types of media that are currently allowed to cover the proceedings does not make any sense 

to us. In fact, it seems to be a level of discrimination between print 

press and electronic press by allowing the print press into the 

room, but not allowing the electronic journalist to take his or her 

tools into the same courtroom. So we do not understand the inconsistency. 

Obviously, the galleries, whether press or public, in the Supreme 

Court or any of the Federal courts, there for a very important reason, can only accommodate so much, and the whole system was envisioned at a time when travel was not as distant as it is today. 

The cameras just seem like a logical extension to us. 

Mr. KELLER. Okay. 

Mr. Chairman, my time has expired. 

Mr. DELAHUNT. Judge Gohmert? 

Mr. GOHMERT. I thank my friend from Massachusetts. 

And, you know, that was a very loose paraphrase of what I said. 

The camera issue aside, Federal judges should have a raise. I do 

not have any qualms about that, and I would not want—I did not 

know she was making $27 million. 

But I would like to comment on a few things that were brought 

up. For one thing, my friend from California, my good friend from 

California, brought up about sidebars and concerns about things 

like that being picked up. My experience was when the media 

knows that they will be kicked out of the courtroom and will no 

longer be allowed to have any footage, any audio, they are very 

careful, especially my experience with Court TV was they went out 

of their way to be careful. 

Especially after you have been covering a case for 3 or 4 weeks, 

if you do something and violate the rule or the law of the order and 

you get yanked from the case, your viewers get real upset with you, 

and they quit paying attention and may watch something else because they do not want that interrupted. 

By the same token, in Tyler, having three networks that were 

constantly wanting footage from trials because they knew in our 

small market to compete they had to get the things people were inVerDate Aug 31 2005 14:09 Mar 11, 2009 Jkt 000000 PO 00000 Frm 00132 Fmt 6633 Sfmt 6601 H:\WORK\FULL\092707\37979.000 HJUD1 PsN: 37979
129 

terested in, they were very careful not to violate the protective 

order because they did not want the other two stations to be able 

to show stuff on the news that they could not broadcast, and with 

that looming continuous threat, it was my experience everyone was 

very careful. We never had a problem in 10 weeks on that. 

Now I will say on the issue of discriminating against the types 

of media, I discriminated against the types of media based on one 

issue, are you a distraction to the jury, because when we were in 

session, anything that distracted the jury was not going to be allowed in the courtroom. That was made very clear to the media. 

Court TV was incredibly good. I kept watching the jury because if 

I ever saw them distracted one time, the camera was gone. And 

they were never distracted. It was not a problem. 

I got the ire of the print media because their cameras made noise 

when they clicked, and, as I told them, ‘‘You come in here with a 

camera that does not click, you are welcome. Take all the pictures 

you want.’’ And he said, ‘‘Well, our editor and publisher will not 

buy cameras that do not click.’’ I said, ‘‘That is your problem. You 

are not clicking and making noise in the courtroom because that 

is a distraction.’’ So sometimes it is necessary to discriminate between various types of media if they are a distraction. 

On another point, something I meant to bring up earlier, I have 

heard so many people say when you bring a camera in the courtroom, you just lengthen the trial, and I remember hearing people 

say after the O.J. Simpson case, ‘‘See, television was in the courtroom. Therefore, it was long. In Susan Smith’s case, there were no 

cameras in the courtroom. Therefore, it went very fast.’’ 

That was not the reason. The reason the case I tried went so 

long, the reason O.J. Simpson’s case went long, is the defendant 

had lots of money in both of those cases. They went toe to toe with 

every witness. When one side had a witness, the other side had a 

witness. As judges, we can control if there is duplicitous testimony, 

things like that, but when it is fresh testimony, you know, you 

have to allow it. 

It was not so much an issue of television. It was an issue of 

whether the judge will control the courtroom and also whether or 

not the parties want to spend the money, and in those cases, they 

did. 

And I will say this, this is true, but I have had judges tell me, 

‘‘Look, I know you allowed cameras in your courtroom from time 

to time. I like the anonymity.’’ And there is a lot of comfort in anonymity when you are a judge that makes tough rulings, and I recognize that, and there are cases it would be nice to give anonymity, 

so you balance those things, and I think you come out ahead if you 

say the public should be allowed to see and hear what goes on in 

our courtrooms. 

And I thank the Chairman and yield back. 

Mr. DELAHUNT. Thank you. 

Thank you to this panel for sharing your insights and your expertise and experience. 

And without objection, Members will have 5 legislative days to 

submit any additional written questions to you, which we will forward and ask that you answer as promptly as you can to be made 

part of the record. 

130 

And without objection, the record will remain open for 5 legislative days for the submission of any other additional materials. 

It has been a very good hearing. It has generated valuable input 

from all of you. I think we all concur that greater transparency in 

the judicial process can enhance our democracy by promoting greater public understanding of our judicial system, and we do need to 

be cognizant that access to Federal judicial proceedings is granted 

in a manner that does not detract but enhances. 

And with this, the hearing is adjourned. 

[Whereupon, at 3:42 p.m., the Committee was adjourned.] 

(131) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

Since 1946, the photographing and broadcasting of federal district court criminal 

and civil proceedings have been prohibited by directive of the Judicial Conference. 

Federal appellate courts, in contrast, have been authorized by the Conference to use 

their discretion in determining whether to allow electronic media coverage of appellate arguments. Currently, only the Second and Ninth Circuit Courts of Appeals 

permit cameras in their courtrooms. 

In recent years, however, there has been growing public interest in having all federal judicial proceedings televised, which may reflect a greater general desire for 

transparency, as well as heightened interest in certain well-publicized cases. 

Today’s hearing provides an opportunity for us to consider H.R. 2128, the ‘‘Sunshine in the Courtroom Act of 2007,’’ which would allow the presiding federal district or appellate court judge to permit electronic media coverage of court proceedings. I commend my colleagues on both sides of the aisle, Bill Delahunt and 

Steve Chabot, for their leadership on this measure. 

It is my hope that this hearing will shed some sunlight on the following issues. 

First, would this measure help promote greater understanding of the judicial process by the public, by making it more transparent? It is vital to our democracy that 

the public understand the critical role that our federal judicial system plays in our 

system of open government with respect to protecting the rights of all citizens. 

Greater transparency also helps enhance the public’s trust and confidence in the judicial process. As Justice Louis Brandeis once said, ‘‘Sunshine is the best disinfectant.’’ 

Second, would the measure grant access to federal judicial proceedings in a way 

that promotes fairness? Many believe that the constitutional right to a fair trial requires that all court proceedings be open to the public, including the press. They 

cite, for example, the Supreme Court’s ruling in Richmond Newspapers, Inc. v. Virginia, which held that ‘‘the right to attend criminal trials is implicit in the guarantees of the First Amendment.’’ Similar statements could be made with respect to 

civil trials. 

Third, would the measure undermine due process and privacy rights of participants in federal judicial proceedings by opening them to intrusive electronic media? 

We should be appropriately careful that media coverage of these proceedings not impair the fundamental right of a citizen to a fair and impartial trial. 

The prospect of public disclosure of personal information may have a material effect on an individual’s willingness to testify, or place an individual at risk of being 

a target for retribution or intimidation. Likewise, the safety and security of our 

judges, law enforcement officers, and other participants in the judicial process 

should not be jeopardized. Accordingly, we should take proper precautions to ensure 

that the privacy of all participants in the judicial process is appropriately protected. 

I look forward to having an informative discussion on the advantages and disadvantages of electronic media coverage of court proceedings. 

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