Indiana courts take backseat on camera study

As yet another study concerning cameras in the courtroom is about to begin, Indiana doesn’t appear to be anywhere closer to allowing cameras in its state or federal trial-level courtrooms.

While the federal judiciary and other states move forward on studying whether cameras should be allowed in courtrooms, the Hoosier legal community waits and remains cautious about moving forward or putting a policy in place.

The Indiana Supreme Court conducted a limited 18-month pilot project and has been studying the issue, but it has not released a decision based on a final report it received March 31, 2008. Meanwhile, a recent pilot project at the federal level is moving forward and District courts throughout the country are being asked to volunteer and allow some cases to be filmed.

In September, the federal judiciary’s policy-making arm, the Judicial Conference of the United States, authorized a pilot project allowing cameras in some District courts. Recording will be limited to civil cases at the trial judge’s discretion, and all parties must give their consent. The recordings will be publicly available on the federal court’s website and local District sites. An exact length for the project hasn’t been determined, but it’s expected to stretch at least three years with the Federal Judicial Center conducting a study in the initial years and issuing a report.

Volunteers are being accepted for the next couple months. Due to ongoing congressional budget issues and fiscal constraints, courts that already have existing audio and videoconferencing are encouraged to use that equipment.

“We especially want to ensure that judges who hold a range of views on the recording of courtroom proceedings will participate,” said U.S. Judge Julie A. Robinson from the District of Kansas, who chairs the conference’s Committee on Court Administration and Case Management. “It’s important to the validity of this project to include the skeptical as well as the supportive.”

Both of Indiana’s federal courts say they aren’t going to participate, but neither group of District judges say they are opposed to the idea of having cameras in the courtrooms.

“We’ve decided not to participate in the pilot project, although it wasn’t a reflection of any general attitude against cameras in courts,” Chief Judge Philip Simon said in the Northern District. “There’s mixed views among my colleagues, but this was more that we didn’t want to serve as guinea pigs on it. Most are pretty supportive of the project, and we’d like to take a wait-and-see attitude rather than stepping forward and being on the forefront studying that here.”

Chief Judge Simon said he doesn’t personally have a problem with the idea of cameras in courtrooms, but said these issues move slowly because strong feelings and legitimate concerns exist on both sides.

In the Southern District, Chief Judge Richard L. Young said that his colleagues also agreed to stay out of the pilot project, but for a different reason.

“(There was) some discussion at a recent judge’s meeting, but we declined to participate in this pilot project because we were involved in the first one in the early 1990s. This time, other courts should be given the opportunity to participate,” he said.

Despite the decision not to volunteer for this program, Chief Judge Young said consensus among the Southern District judges is that they aren’t opposed to the concept of having cameras in the courts. But they do want to know specifically what the protocols would be to make sure they have the ability to control the process and guarantee the court’s efficiency isn’t impacted.

Chief Judge Young said he’s interested in seeing how this progresses and what districts are chosen to be a part of the pilot project. He expects a good sampling of geography, caseload, and size, reflecting all of the potential issues that might surface. For example, the Southern District of New York encompasses New York City and might not be as able to have a local TV affiliate spend time filming in court as compared to a place like the Southern District of Indiana’s Evansville division, he said.

“They are just different markets, and we need to see how that all fits together in creating a policy like this nationally,” he said.

Cameras have been banned in federal courts since 1994 and the Federal Rules of Criminal Procedure bar them from being used in criminal proceedings. This is the first time in about two decades the federal judiciary has changed its policy on allowing cameras in the courts. Recent changes in the makeup of the judiciary may have helped play a part in that. U.S. Supreme Court Justices Sonya Sotomayor and Elena Kagan have both joined the court in the past two years and support the concept of cameras in the courtrooms, though some justices still express their opposition and concern.

“Technology has changed so much and you just didn’t have social media networks and things like Facebook in the 90s,” Chief Judge Young said. “We want to see how this plays out now, in this new world of public access.”

What impact any federal judiciary action may have on state decision-making about cameras in courts remains to be seen.

About two dozen states allow cameras to record trial-level proceedings in some way. There has been a push in recent years for further study of the issue. Earlier this year, Minnesota allowed a pilot project similar to what Indiana allowed from July 1, 2006, to Dec. 31, 2007. That Indiana pilot was limited – six proceedings were recorded in eight courts statewide.

A final report was submitted three years ago, but Indiana’s top court hasn’t budged on the topic. Two requests have been submitted since then asking for a new smaller study and a webcast in some Lake County civil proceedings. However, Lake Circuit Judge Lorenzo Arredondo, who was heading the webcasting proposal, retired, as have others interested in being a part of the second state pilot project.

Chief Justice Randall T. Shepard has said that the report submitted in 2008 didn’t propel the court in any particular direction, but was just one piece of useful data to compare to everything else. A lingering question has been about the balance between public information and relative burden that still exists, and the chief justice has told Indiana Lawyer that the court doesn’t have enough data to move forward.

As of March 2011, court spokeswoman Kathryn Dolan said the court continues studying both requests in conjunction with the first pilot project evaluation but hasn’t yet made a decision. Those looking for guidance on the issue say the clear message from the court has been that not enough data exists at this time, and that is what is driving the subsequent requests for further study.

“At this point, it’s wait and see,” said Indianapolis attorney Dan Byron, who represents the Indiana Broadcasters Association. “Our feeling has been that we didn’t have sufficient data from that (first) project, and so allowing this new pilot would allow full trials to be televised in a smaller group so that we can move forward.”•