Posted: January 30, 2008
Code of Judicial Administration
CJA 03-413. Judicial library resources. Amend. Deletes references to materials no longer published.
CJA 04-201 Record of proceedings. Amend Permits the judge to allow access to the digital recording otherwise dsignated as “notes.”
CJA 04-203. Designating a case as historically significant. New. Establishes a process by which a person can request that a case be designated as historically significant. Records in historically significant cases will be retained permanently.
CJA 04-401. Media in the courtroom. Amend. Permits audio and video transmissions from the courtroom. Prohibits photographing documents and exhibits not in the public record. Clarifies that the judge can control areas adjacent to the courtroom without automatic restrictions.
CJA 06-601. The Board of District Court Judges. Amend. Prohibits a judge who is substituting for a Board member from making or voting on motions.
I’m strongly against this. How are the media supposed to be watchdogs for the public if they can’t capture what happens within a courtroom? The event of the gentleman getting tasered in court would not have been captured if it weren’t for in-room photography and filming. Also, since most trials are open to the public, isn’t that the same principle that if the general public can go, why not be able to broadcast that content to the public? Restricting media is restricting the media’s 1st Amendment right to free press.
There is no real need for CJA 04-401 to be imposed, restricting the rights of the news media to record at public judicial proceedings and giving unwarranted authority to already powerful judges. This proposed rule is an unnecessary restriction on the public’s right to know.
I support the first proposed rule change regarding the audio/video feed but am troubled by the other two remaining proposed changes.
Providing a feed will help the media provide adequate coverage of court proceedings while cutting court staff time in the reproduction of hard-copy versions for various media outlets.
The second amendment is overly broad. By banning the photography of documents and exhibits in the courtroom, the courts will tie the hands of the photographer to be able to shoot an image in a room that is typically filled with documents and exhibits. It is common that such documents are handled and displayed during court hearings and are often held aloft by counsel to communicate a message to the judge or jury.
Again, the third rule amendment is also overly broad in that it makes no exception for minors who are certified to face serious criminal charges in district court. I feel a presiding judge is best suited for making the decision of whether the photography of a minor in court raises any concerns.
I urge more narrow solutions to address the Judicial Council’s concerns.
I am writing in opposition to the proposed Rule 4-401. On the whole, the proposal contradicts recent efforts by the Utah State Courts to increase public access to court business and recognize the role of the news media in democracy. In their individual capacities, some of the respective rule change proposals are unenforceable and attempt to dictate news coverage.
Recently, the Utah State Courts have made progressive strides by creating protocols for public disclosure of search warrants and by recognizing a reporter’s privilege in the courtroom. Please do not regress by adopting unwieldy rules that limit and threaten a free press and democracy.
Leah Hogsten
photographer
The Salt Lake Tribune
To whom it may concern:
We are writing in opposition to the proposed Rule 4-401. On the whole, the proposal contradicts recent efforts by the Utah State Courts to increase public access to court business and recognize the role of the news media in democracy. In their individual capacities, some of the respective rule change proposals are unenforceable and attempt to dictate news coverage.
The proposal contained in paragraph 3 prohibits photographing “an exhibit or a document that is not part of the official public record…”
The rule is unduly broad and unenforceable. It expects the photographer to always know what exhibits have been entered into the record. The rule also does not consider those instances where an attorney, judge or party displays an exhibit in plain sight of everyone in the courtroom as well as the courtroom video cameras.
Under the proposal, a photographer or news outlet could face sanctions for photographing an exhibit held in the hand of a person addressing the court or for photographing an exhibit which will be visible in the video recording.
There exists similar arguments against another passage in paragraph 3, which would prohibit photographing “the face of a person known to the photographer to be a minor.”
This proposal does not consider whether the minor is situated beside or in the background behind other people in the courtroom, whether the minor’s face will be visible on the courtroom video cameras, whether the minor is the subject of the proceeding and thus is a timely news topic or whether the minor’s face is already familiar to the public.
The proposals in paragraph 3 are tantamount to government telling news media what it may or should report. That stance is incongruent with the First Amendment and the role of journalists.
The proposal in paragraph 6 seems to go further and attempt to intimidate journalists with “contempt and any other sanctions allowed by law…”
Journalists already risk jail or fines if they violate courtroom rules. The language addition can be seen as directing judges to apply these sanctions to offending parties rather than allowing the judges to use their jurisprudence.
Recently, the Utah State Courts have made progressive strides by creating protocols for public disclosure of search warrants and by recognizing a reporter’s privilege in the courtroom. Please do not regress by adopting unwieldy rules that limit and threaten a free press and democracy.
Sincerely,
Nate Carlisle
Pamela Manson
Heather May
Sheila R. McCann
Lisa Rosetta
Salt Lake Tribune
I encourage the courts to decide against enacting the proposed rule changes to CJA 4-401. While the first proposed change appears to be an improvement by making audio and video feeds more accessible, the second two proposed changes appear to set the court back years as far as public access and knowledge of the courts is concerned by restricting photography in a courtroom.
A court is a public building, and restricting what can — or who can — be photographed in and around a courtroom seems to send the message that what is happening in the people’s court is secret. This is despite the fact that exhibits or persons can be seen in court to anyone sitting there in the audience, whether they are members of the news media, the judiciary, or the public. As it stands now, restrictions on photographing witnesses, documents or anything else deemed sensitive can be handled by a judge’s decorum order with specific language written into it.
Thank you for considering these comments,
-Ben Winslow
Utah Headliners Chapter
Society of Professional Journalists
I oppose the proposed changes to Rule 4-401 as overwrought solutions in search of a problem.
The proposed Rule 4-401(3) seems not only unnecessary but also so vague and subjective as to create more problems than it solves. To require news photographers to know ex ante whether a particular document in the courtroom is part of the “official public record” or not is an unreasonable expectation. Plus, the language is too broad and will likely lead to unintended consequences. To say that “no one” can do this would seem to include the court’s own video monitoring system such that every court will be in violation of the Rule in every session. (This assumes the definition of “photograph” includes video monitoring, but there is nothing in the Rule that says it does not).
Additionally, I think the proposed changes could pose some potential constitutional issues in that they could be seen as vague and overbroad restrictions that constitute prior restraints. A blanket prohibition on the photographing of any document in a courtroom that is not part of the official public record would seem to preclude a photographer from taking a picture of his or her own notes or the assignment sheet he or she received from an editor before leaving the newsroom. This kind of broad language is simply unnecessary and inappropriate.
The proposed change to Rule 4-401(5)(A) is also objectionable because it takes discretion from judges. Instead of letting the judge decide what makes sense in terms of an arrangement for a pool photographer, the proposal would require a pool arrangement. But the drafters of the rule don’t know what situations might arise in which a district court judge might desire something other than a single pool photographer arrangement.
I think this kind of micromanaging of the trial judge’s discretion is neither good judicial administration nor good public policy for the state of Utah in general. I would prefer that the rule changes not be approved because I think the rule was fine as it stood.
I am aware, of course, of the situation involving the news photographer at the Warren Jeffs trial. But that incident does not warrant a knee-jerk reaction such as this. I believe the court administrative system should be more measured and studious in adopting rules rather than simply reacting in a hasty fashion to a single incident. The current Rule 4-401 has functioned well for years in the overwhelming majority of cases and, in any case, judges already have the normal tools at their disposal to control conduct in their courtrooms.
Instead of adoption of the proposed changes, I would favor the continued study of the issue of photographers in courtrooms in order to determine what changes really are needed. In reality, I believe the people of the state will be better served by more openness in the judicial process, not less. An open and transparent judicial system has several benefits. Among other things, it allows the public to know what tax dollars are accomplishing. Also, openness encourages compliance with the law and understanding of the judicial process. Transparency, too, can ensure us all that justice is being done and thus tamp any urges toward vengeance of vigilantism.
Courts in the common law system have been open to the public for hundreds of years for these and other reasons, notwithstanding desires by some to close the courtroom and have secretive judicial processes. In the end, the courts belong not to the judges, lawyers and litigants who most frequently appear there but rather to all of us. Since we no longer have the regular practice, for the most part, of attending court proceedings as a public spectacle, the news media provide an important link for information about what goes on in our courts.
Thank you,
Edward L. Carter
Utah State Bar #9871
Jeffrey J. Hunt
PARR WADDOUPS BROWN GEE & LOVELESS
185 South State Street, Suite 1300
Salt Lake City, Utah 84111
Telephone: (801) 532-7840
Facsimile: (801) 532-7750
jjh@pwlaw.com
Michael P. O’Brien
JONES WALDO HOLBROOK & MCDONOUGH
Salt Lake City, Utah 84111
170 South Main Street, Suite 1500
Telephone: (801) 531-3200
Facsimile: (801) 328-0537
mobrien@joneswald.com
March 19, 2008
VIA E-MAIL &
HAND-DELIVERED
Timothy Shea, Esq.
Senior Staff Attorney
Administrative Office of the Courts
Matheson Courthouse
450 South State Street
P.O. Box 140241
Salt Lake City, Utah 84114-0241
Re: Proposed Amendments to Rule 4-401 of the Utah Code of Judicial Administration (Media in the Courtroom)
Dear Tim:
We represent the Utah Media Coalition, which consists of Utah’s daily and weekly newspapers, broadcast news stations, and leading news media, journalism, and open government organizations, including the Utah Press Association, Utah Broadcasters Association, Society of Professional Journalists, and Utah Foundation for Open Government.
Following are the Media Coalition’s comments concerning the proposed amendments to Rule 4-401 of the Utah Code of Judicial Administration (Media in the Courtroom) set forth in the draft rule dated December 28, 2007 (the “Draft Rule”). For the reasons set forth below, we urge the Judicial Council to modify the Draft Rule as follows.
The Draft Rule proposes three major amendments to Rule 4-401: First, the Draft Rule would permit the official audio and video feed in trial and appellate court proceedings to be transmitted and copied by the news media. Sections (1) (A)-(B). Second, the Draft Rule would prohibit photography of “an exhibit or a document that is not part of the official public record . . .” Section (3). Third, the Draft Rule would prohibit photography of minors. Id. For the reasons set forth below, the Media Coalition supports the first amendment, but strongly objects to the prohibitions on photography of exhibits, documents, and minors who are witnesses or parties in public court proceedings.
Transmission and Copying of Court Audio and Video Feed
The first major amendment would eliminate the pilot program and authorize trial and appellate judges to allow the Court’s official audio and video feed to be transmitted and copied by the news media. See Draft Rule § (1)(A)-(B). The Media Coalition supports this proposed amendment. This change will conform the Rule to the current practice of trial judges in high profile cases who have allowed transmission of the court’s official audio and video feed.
By allowing such transmission and copying, the news media are able to transmit the court proceedings to the public much more timely, indeed, almost immediately. In addition, this change will reduce the administrative burden on court staff by eliminating the need to make copies of audio and video recordings for multiple news organizations covering court proceedings. The Media Coalition urges the Judicial Council to adopt this proposed amendment.
Prohibition on Photography of Exhibits and Documents
The second major amendment proposed by the Draft Rule is a prohibition on photography of “an exhibit or a document that is not part of the official public record . . .” Draft Rule § (3). This amendment appears to be a response to the Deseret Morning News’ digital enhancement of a media photograph taken during the State v. Jeffs trial last year. In response to the Judicial Council’s concern over that incident, the Morning News sent a letter explaining the factual circumstances surrounding that event. A copy of that letter is enclosed. We will not repeat here the unique facts and circumstances surrounding the Morning News’ decision to discover and report on the contents of a letter that Warren Jeffs attempted to read to the news media and then hand to Judge Shumate in open court.
Reasonable minds, including some in the news media, may disagree about the Morning News’ reporting of the content of Jeffs’ letter to the court. Regardless of one’s view concerning that event, however, it does not justify the sweeping restrictions on courtroom photography that would result from the Draft Rule. There are three major problems with the proposed amendment.
First, the prohibition is overbroad. Aside from the obvious problem (discussed below) of how a media pool photographer is supposed to know whether a particular document appearing in his or her view finder is “part of the official public record,” the Draft Rule is overbroad because it applies to all documents, no matter how incidental to the photograph or how illegible. This is not an idle concern. Because courtrooms are literally filled with documents that are constantly being handled by judges, lawyers, and witnesses, they routinely show up in media photographs. The classic example is the photograph of the studious judge reading a document in court. (See below).
In this photograph of Justice Wilkins, the content of the document is illegible (even if digitally enhanced) and, more important, irrelevant. The document is used as an element of the photograph featuring the Justice. Under the Draft Rule, however, the media pool photographer would be banned from taking this or similar photographs unless she somehow could divine whether the document already was part of the public court record. Of course, the photographer will have no knowledge of the document other than the fact it was a nice visual element of the photograph. Similar photographs, featuring counsel or witnesses holding documents, or in which documents incidentally appear on a table or the bench, likewise would be prohibited. Examples of such photographs are enclosed.
The Draft Rule’s ban on photography of “exhibits” that are not part of the public records is similarly overbroad. Exhibits are not always documents. In a criminal case, exhibits often include physical evidence, such as hair samples, fingerprints, photographs, and weapons, such as knives, handguns, or as shown below, baseball bats. Exhibits also may be demonstrative, such as timelines, which sometimes are not part of the official court record. Anyone present in the courtroom when such exhibits are being handled, including the news media, are able to see the exhibits, whether or not they are part of the public court record. Prohibiting photographs of such exhibits, such as the photograph shown below, serves no public purpose. Additional examples of such photographs are enclosed.
Second, the proposed restrictions are not practical. How is a media photographer supposed to know, prior to taking a photograph, whether a particular document or exhibit appearing in the photograph is “part of the official public record” or not? Media photographers shoot pictures. They are not court clerks keeping track of what exhibits and documents have been admitted into the public court record and which have not. As a result, the Draft Rule would effectively ban any courtroom photograph in which an exhibit or document appears, which is the vast majority of courtroom photographs.
Nor is it practical for the media photographer to ask the trial judge for permission to photograph an exhibit or document. The media photographer obviously cannot interrupt the proceedings to ask permission. Seeking permission from the court before the day’s proceedings begin is not a practical solution either. The media photographer does not know in advance which exhibits or documents will be shown in court or, more importantly, which he or she might wish to photograph.
Third, “[a] trial is a public event. What transpires in the courtroom is public property.” Craig v. Harney, 331 U.S. 367, 374 (1947). It is hard to justify, as a matter of law or policy, a ban on photography of documents, exhibits, or for that matter, parties or witnesses, which are visible in open court and may be seen by any member of the public or media in attendance. For nearly two decades, Rule 4-401 has worked well in allowing the news media to show the public visual images of what actually transpires in the courtroom, without interfering or disrupting the proceedings. The current Rule has served both the public and the courts in conveying the reality of proceedings in particular cases, as well as promoting greater general understanding of the judicial process. The Rule provides trial judges ample authority and discretion to control the conduct of proceedings in the courtroom by entering decorum orders applicable to the news media. The Media Coalition urges the Judicial Council to leave such discretion with the trial judge rather than adopt the overbroad and unnecessary amendments proposed in the Draft Rule.
Although the Media Coalition does not believe any changes to the Rule are necessary, if the Judicial Council is concerned about protecting the content of confidential or privileged documents from disclosure, it should consider more narrow and tailored language to accomplish this purpose, such as the following: “The pool photographer shall not photograph any document in the possession of the judge or other participants in the court proceeding that the photographer knows is not in the public court record for the purpose of discerning the content of such document.” Such language would prohibit purposeful or intentional attempts to discern the content of known non-public documents, while preserving the ability of media photographers to shoot pictures in which such documents may incidentally appear. The Media Coalition urges the Judicial Council to consider this more focused and measured alternative.
Prohibition on Photography of Minor Parties and Witnesses
The third major amendment proposed by the Draft Rule is a prohibition on photography of “the face of a person known to the photographer to be a minor.” Draft Rule § (3).
This language is also overly broad. Most notably, the Draft Rule contains no exception for minors charged with serious offenses, such as murder, who are tried in district court, or who are certified for trial in the district court on other offenses. Thus, the Draft Rule would prohibit photography of the face of a 17-year-old criminal defendant being tried for murder in district court. Such a rule makes little sense. If a 17-year-old appears in district court on a charge of murder, all the rules applicable to district court proceedings, including media photography of defendants, should apply.
At minimum, this issue should be left to the case-by-case discretion of judges, who are in a better position to determine whether photography of minors raises a concern in a particular case.
The Media Coalition is unaware of any reason for this proposed rule change. To our knowledge, Utah media photographers and news organizations have exercised sensitivity and judgment with respect to photography of minors in the courtroom. We are not aware of any incidents or abuse that justify this amendment, and urge the Judicial Council to reject it.
Conclusion
The Media Coalition supports the proposed amendment to Section (1)(A)-(B) of Rule 4-401 concerning transmission and copying of the Court’s official audio and video feed. However, the Media Coalition strongly opposes the proposed amendments to Section (3) restricting photography of exhibits, documents, and minors.
Instead of imposing the overbroad restrictions contemplated by the Draft Rule, the Media Coalition would welcome the opportunity to engage in a dialogue and discussion with the Judicial Council concerning any concerns with media photography in the courtroom. We believe such concerns can be addressed without the sweeping changes proposed by the Draft Rule.
Thank you for your consideration of these comments.
Sincerely,
PARR WADDOUPS BROWN GEE & LOVELESS
Jeffrey J. Hunt
JONES WALDO HOLBROOK & MCDONOUGH Michael P. O’Brien
Attorneys for the Utah Media Coalition
:klm(250819)
Enclosures
cc: Chief Justice Christine M. Durham, Utah Supreme Court
Nancy Conway, Salt Lake Tribune
Joseph A. Cannon, Deseret Morning News
Randy Wright, Daily Herald
Andy Howell, Ogden Standard-Examiner
Bruce Smith, Logan Herald Journal
Todd Seifert, The Spectrum
Dave Tomlin, Associated Press
Con Psarras, KSL-TV
Tanya K. Vea, KUTV
Renai Bodley, KSTU
Michael J. Fox, Utah Press Association
Ben Winslow, Society of Professional Journalists
Linda Peterson, Utah Foundation for Open Government
On behalf of the Utah Foundation for Open Government, I oppose proposed rule #04-401.
It’s a slippery slope when attempts are made to control media access in the court room when the media provides such a significant service to the public in letting them know what is going on in the judicial system. Protection of rights and privacy of individuals in the court room are already more than adequately covered in Utah law.
Linda Petersen
President
Utah Foundation for Open Government