On the way to court, you decide to make the trip a little more lucrative by calling a new client to discuss his case. In your haste to make a 9 a.m. court call, you finish up your conversation as you enter the courthouse and realize you have forgotten your court ID. You proceed to the front of the security line, and hand your keys and cell phone to the security guard. It’s 8:55—plenty of time to make it upstairs. That is, until the guard gives you your choice of returning your phone to your car or foregoing your court appearance.
Beginning this past July, "camera phones," as they are dubbed, have been banned from the DuPage County Courthouse, pursuant to Local Rule 1.30. While once a novel invention, camera phones have become quite the norm. No longer is it a question of whether you own a cell phone. Rather, the more important question is what high-tech functions your cell phone is capable of performing. From sending and receiving email messages to taking and transmitting video recordings, cell phones have vast capabilities.
However, just as a growing number of athletic clubs are making locker rooms off-limits to all cell phones with photo and recording capabilities, with the passage of the Video Voyuerism Prevention Act by the Senate in September 2003, camera phones are beginning to be slowly disallowed in courthouses, such as the one in DuPage County.1
Illustrative of this fact is that state judges and legislators are willing to limit media access to protect juror anonymity. In every one of the forty-seven states that presently allow television cameras in criminal trials, television coverage of jurors is completely barred.2 Furthermore, the federal court system wholly proscribes television cameras from courtrooms at the trial level.3 This kind of prohibition raises questions of the public’s right to know versus the rights of the defendant to a fair trial and of the jury’s right to privacy.
While court proceedings are open to the public and many high-profile cases are often either broadcast on national television or receive some measure of press coverage, the identity of jurors is not usually widely publicized by the judicial system during the course of the trial, and may, if the judge so desires, be kept confidential in some cases,4 even after the trial has concluded.5
In addition, the covert nature of a camera phone may be cause for alarm. While television cameras are an obvious entity in any courtroom, camera phones have the capability of being undetectable, while capturing images not otherwise available for public viewing.
Therefore, while jurors once felt a sense of security in knowing that their identities could not be captured by television cameras for the world to view, that feeling of refuge may be breached if one decides to surreptitiously use a camera phone to capture images of an empanelled jury.
CHIEF JUDGE KILANDER’S VIEW ON CAMERA PHONES
According to Hon. Robert K. Kilander, Chief Judge of the Eighteenth Judicial Circuit for DuPage County, Illinois, one reason that camera phones are banned from the courthouse is to protect the identity of jurors. According to Chief Judge Kilander, "If the identity of jurors is disclosed, not only will their safety be placed in jeopardy, but the ability to pick untainted and impartial juries will be compromised." Thus, the sanctity of court proceedings could be breached if jurors are identifiable to the public.
While Chief Judge Kilander is not aware of any specific incident of a juror being harassed or receiving threats, many jurors, he says, have a general fear of sitting on a jury in a gang-related case. A defendant may have his fellow gang members attend the trial, use a camera phone to take pictures of the jury and identify them, and then harass, intimidate or threaten the jurors. Even though this scenario is not the norm, it is the fear of the possibility of this kind of occurrence that has prompted Chief Judge Kilander to make this amendment to the Local Rule.
After swearing-in a judge in another court, Chief Judge Kilander was shown a five-minute recording of the ceremony that was made on a personal data assistant, such as a Palm Pilot, by an observer. That particular recording was then immediately transmitted to an outside computer for anyone to view, all with a touch of a button. In this particular instance, the recording and transmittal of the video was permitted. However, "It was this five-minute video recording," the Chief Judge says, "that made me aware of how simple it is to make a recording of a court proceeding and transmit it to outside sources."
Additionally, Chief Judge Kilander recalls a news broadcast in which video footage of a jury deliberation was taken through an exterior window of the DuPage County Courthouse. According to the Chief Judge, the footage was taken by an observer on the street using a high-powered zoom lens. It is these technological advances in recording equipment that calls for advances in the law, as well, in order to protect the identity and safety of jurors.
THE EFFECT ON JURORS
Jurors must already make sacrifices to perform their civic obligation. The financial and emotional burdens of jury duty can be significant, even in the most mundane and innocuous cases. Additionally, jurors, while having the daunting task of deciding another’s fate, must also sort unintelligible instructions and deal with interminable delays.6 With the advent of camera phones, jurors have one more thing to worry about. If a juror’s identity is released by picture or otherwise, he and his family are subject to possible exploitation by the press and to retaliatory threats and unwanted attention from defendants, victims, and sympathizers.7 Additionally, the quality of jury deliberation and fairness of verdicts may suffer as a consequence, as Chief Judge Kilander asserts.
Juxtaposed with the increase in society’s interest in court proceedings is the rise in juror apprehension about serving on juries because of concerns over safety and privacy. In a California study by Rudolph A. Diaz, chairman of the Municipal Court Presiding Judges Association in Los Angeles and President of the California Judges Association, it was shown that many people are reluctant to serve as jurors even in misdemeanor cases and fear being approached at home after their assigned case has ended.8 In Illinois, a researcher debriefed jurors in a carjacking case and noted that some jurors feared that the defendants or defendant’s family members might harm them in retaliation for their verdict.9
Even though most jurors do not experience this lurid scenario, the possibility of harassment is cause for concern. Enough harassment by opponents of verdicts occurs to keep many jurors worried.10 For instance, jurors who acquitted the officers who beat Rodney King endured taunts, threats, and disturbing telephone calls after their names were made public.11 Death threats were also prevalent in the trial of Dan White, convicted of murdering San Francisco Mayor George Mascone and Supervisor Harvey Milk. Some of these jurors moved or changed jobs after the trial. One slept with an axe; another bought a gun.12 Jurors have expressed such fears in cases involving less notorious defendants, as well.13
It is these types of instances and fears that prompted the Illinois Supreme Court to amend Rule 63A(7) to include camera phones in its general ban on recording devices in the courtroom. On December 5, 2003, Supreme Court Rule 63A(7), regarding judicial decorum, was amended with the intent to prohibit this advanced technological equipment in the courtroom. Rule 63A(7) states, in pertinent part:
"The taking of photographs in the courtroom during sessions of the court or recesses between proceedings, and the broadcasting or televising of court proceedings is permitted only to the extent authorized by order of the supreme court. For the purposes of this rule, the use of the terms "photographs," "broadcasting," and "televising" include the audio or video transmissions or recordings made by telephones, personal data assistants, laptop computers, and other wired or wireless data transmission and recording devices."14
It should be noted that the Illinois Supreme Court does allow extended media coverage of proceedings in the supreme and appellate courts subject to certain specific conditions. However, the existing prohibition on the taking of photographs in the courtroom during sessions of court or recesses between proceedings, and the broadcasting or televising of court proceedings, other than those of a ceremonial nature, is still in effect.15 Additionally, despite the allowance of media coverage of certain cases, video coverage of the jurors is not permitted.
In harmony with Rule 63A(7), The Eighteenth Judicial Circuit Court amended Local Rule 1.30 on July 20, 2004, to include a prohibition on "audio or video transmissions or recordings of judicial proceedings made by telephones, personal data assistants, laptop computers and other wired or wireless data transmission and recording devices."16
If one should attempt to enter the DuPage County Courthouse with such a device, he will be denied access. Any person found possessing camera phones within the Courthouse will have his name and address recorded by the Court security staff, and will be escorted out of the Courthouse.17 Additionally, a second violation may result in confiscation of such equipment and anyone found using such prohibited equipment, like a camera phone, to record or transmit court proceedings "shall be subject to prosecution for Contempt."18
Section (c)(2) of Local Rule 1.30 does carve out an exception to the ban on recording devices. In the case of ceremonial proceedings, such as a swearing-in or wedding, "any judge of this circuit, with the permission of their Presiding Judge or Chief Judge may permit the taking of photographs, audio or video recordings, and broadcasting by radio and television, within the area of the judge’s courtroom, chambers or court offices."19 Other than these specific circumstances or other such situations as authorized by the Chief Judge, the presence of camera phones are explicitly disallowed in the Judicial Office Facility.
THE BAN DOES NOT AFFECT THE PUBLIC’S RIGHT TO KNOW, BUT PROTECTS THE TRIAL PROCESS
With a ban on recording devices comes limited access to court proceedings. However, as the United States Supreme Court in Estes v. Texas posits, "It is true that the public has the right to be informed as to what occurs in its courts, but reporters of all media, including television, are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media. This was settled in Bridges v. California, 314 U.S. 252 (1941), and Pennekamp v. Florida, 328 U.S. 331 (1946), which we reaffirm."20 A ban on camera phones, then, will not prejudice the public in attaining information on court proceedings. The public are permitted to attend nearly all judicial inquiries and, in the instance of high profile cases, one need only turn on Court TV or CNN to obtain up-to-the minute coverage.
Opposition to the release of juror identification is rooted in the Sixth Amendment’s right to a fair trial.21 If the jury believes its verdict is subject to public scrutiny or that it may be subject to threats, jurors may be more inclined to decide the case in accordance with public sentiment or public pressure, rather than deliver a verdict founded solely on the evidence.22
The Court in Estes explains:
"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. . . . To perform its high function in the best way ‘justice must satisfy the appearance of justice.’ Offutt v. United States, 348 U.S. 11, 14." at 136." 23
It is the fear that a juror’s identity may be released that can compromise a fair trial and it is the probability of a tainted jury that has prompted the implementation of bans on the presence of camera phones in the courthouse.
The purpose of our courts is to administer justice. They insure that civil and criminal proceedings are conducted in accordance with the law. Courts have the responsibility of safeguarding individual liberties and insuring the freedom to exercise legally assured rights. Jurors should have the right to serve their civic duty without the fear of being harassed or threatened in the process. Trials are too significant in our society to let the fear of harassment erode a juror’s ability to serve impartially and to deliver a fair, just and unprejudiced verdict.
While some naysayers may feel that the ban on camera phones in the courthouse is an unduly burdensome rule that causes more aggravation than benefit, the ban, in reality, actually promotes the sanctity of the judicial system and protects the people that are perhaps most integral to our judicial system: the jurors.
1 Ben Charny, Cell phone cameras getting day in court—or not; available at http://news/zdnet.com/2100-1009-5226912.html (last visited October 14, 2004).
2 Ruth Ann Strickland and Richier H. Moore, Jr., Cameras in State Courts: A Historical Perspective, 78 Judicature 128, 134-35 (Nov.-Dec. 1994).
3 See Jeffrey S. Johnson, Comment: The Entertainment Value of a Trial: How Media Access to the Courtroom is Changing the American Judicial Process, 10 vill. sports & ent. l. Forum 131 (2003); see also Fed. R. Crim. P. 53.
4 The use of "anonymous juries," juries whose actual identities are kept confidential even from the parties during trial, has grown in recent years since the Gotti trial in New York. See, e.g. Isaksen v. Vermont Casings, Inc., 825 F.2d 1158 (7th Cir. 1987). The use of an anonymous jury was first approved for use in a civil action in U.S. v. Real Property Known ass 77 East 3rd Street, 849 F.Supp. 876 (S.D.N.Y. 1994), largely because of concerns that arose in a related criminal case.
5 See David S. Willis, Juror Privacy: The Compromise Between Judicial Discretion and the First Amendment, 37 Suffolk U. L. Rev. 1195 (2004).
6 Nancy J. King, Nameless Justice: The Case for the Routine Use of Anonymous Juries in Criminal Trial, 49 Vand. L. Rev. 123 (1996)
8 Catherine Gewertz, Courthouse Makes Blanket Use of Juror Anonymity, L.A. Times A1 (July 25, 1994).
9 Connie Lauerman, Juries on Trial: Defendants Aren’t the Only People on the Hot Seat in the Courtroom, Chicago Trib. at Tempo 1 (July 14, 1994).
10 See King, supra note 6 at 127, discussing juror apprehension and fear, in general: "A 1995 survey of 1,059 readers of Glamour magazine, primarily working women ages eighteen to fourty-four, was particularly revealing. When asked, "Should jurors in criminal cases be allowed to serve anonymously?" Eighty-four percent answered, "Yes, in all cases." Another eleven percent answered, "Yes, but only in cases involving gangs, cults, or possible social unrest." Only five percent said no. Only one-fifth of those responding to the survey had served on a criminal jury, but of these, less than one-third (thirty percent) said that they were not afraid of retribution. We cannot know if these surveys and anecdotal reports accurately reflect the prevalence of juror fear in criminal cases. Absent contrary evidence, however, they suggest that a significant number of jurors are afraid."
11 King, supra note 5.
12 Thomas L. Hafemeister, Legal Report: Juror Stress, 8 Violence & Victims 177, 178-80 (1993).
13 See Eric Wertheim, Anonymous Juries, 54 Fordham l. Rev. 981, 998 (1986).
14 Ill. Sup. Ct., R 63A(7) (2004), as amended December 5, 2003, effective immediately.
15 Committee Comments to Ill. Sup. Ct., R 63 (2004).
16 Local Rule 1.30 (a) (2004).
17 Local Rule 1.30(b), amended effective July 20, 2004.
19 Local Rule 1.30(c)(2).
20 Estes v. Texas, 381 U.S. 532, 542 (1965).
21 See Willis, supra note 5 at 1197.
22 See Id.
23 Id. at 543.
Christina Schmucker is an associate with Donner & Company Law Offices LLC. She received her J.D. at the University of Miami School of Law and her B.A. from Vanderbilt University.