Fair Trial Issues
Photography in the Courtroom
Few areas of the law have seen as many twists and turns as the question of whether courts should allow photography and/or television cameras in the courtroom.
The issue has a long history. The American Bar Association first addressed it in 1937. In the aftermath of the trial of Bruno Hauptmann for the kidnap-murder of the Charles A. Lindbergh baby, the bar association adopted Canon 35.
Canon 35 said:
Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom during sessions of the court or recesses between sessions, and the broadcasting of court proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.
In 1952 Canon 35 was amended to include television in the prohibition. In 1963, the House of Delegates of the American Bar Association voted overwhelmingly to reaffirm Canon 35.
In 1962 the Judicial Conference of the United States adopted a resolution condemning broadcasting of judicial proceedings and the taking of photographs in the federal courtrooms “or its environs.” The Judicial Conference is the policy-making body of the federal court system. The chief justice of the United States presides over the conference, which consists of the chief judges of the federal court districts.
In 1996 the Judicial Conference reversed its long-standing opposition to photography and voted to allow each of the nation’s 13 judicial circuits to decide whether to permit photography in those districts.
Texas had permitted photography and radio and television broadcasting in its courtrooms before the State Bar of Texas decided in 1963 to replace American Bar Association’s Canon 35 with a state Canon 28.
The replacement canon went into effect in 1964. It says that individual judges may determine what coverage will be allowed, with exceptions.
This was nothing new in Texas. Photography within the courtroom including television and including sound on film had been common in the state.
When Billie Sol Estes faced state indictment for theft, swindling and embezzlement in 1962, the preliminary hearing and trial were televised in Tyler. After the conviction, the Estes case was appealed, ultimately to the U.S. Supreme Court, over the issue of whether he had gotten a fair trial because of the presence of the TV cameras.
The Supreme Court ruled in 1965 that Estes’ rights had been violated. The various opinions were interesting and the final vote was 5-4, but the decision was that television did not belong in the courtroom. The decision dealt a severe blow to the prospects of courtroom photography in general and television in particular. (Estes v. Texas, 86 S. Ct. 18, 1965)
However, in 1990 the Supreme Court of Texas established a new rule of judicial conduct regarding photography in civil trials. The rule now says that judges have the discretion to allow photography upon consultation with lawyers.
The rule did not deal with criminal trials, however, and since then the question of whether or not to allow photography has been decided by individual judges.
Defendants in Custody
An interesting area more ethical than legal has to do with photographing defendants in custody.
In 1968 American Bar Association standards recommend that police establish regulations prohibiting “the deliberate posing of a person in custody for photographing or television by representatives of the news media.”
The Texas bar-press guidelines, announced in 1969 and approved in 1970, including this section on photography:
Photographs of a suspect may be released by law enforcement personnel provided a valid law enforcement function is served. It is proper to disclose such information as may be necessary to enlist public assistance in apprehending fugitives from justice. Such disclosure may include photographs as well as records of prior arrests and convictions.
Photographing of accused persons when they are in public places should not be restricted. However, accused person should not be posed by law enforcement officers.
The taking of photographs in a courtroom is governed by rules of the court.
Gag or Restrictive Orders
Under what conditions courts may issue restrictive orders dealing with publicity and to what extent remains somewhat in a state of flux. Precedents call for open trials. But allowances have been made for restricting what lawyers and witnesses say to the news media outside the courtroom.
The first time the U.S. Supreme Court ruled on the effects of publicity on a trial was in the Sam Sheppard case. The circus-like atmosphere of the trial of Sheppard in 1954 resulted 12 years later in the Supreme Court overturning his conviction. Sheppard v. Maxwell, 384 U.S. 333 (1966).
After the Sheppard ruling the American Bar Association suggested that trial judges control the public statements of participants in sensational trials.
In 1975 a judge in Nebraska ordered restrictions limiting press coverage of a grizzly murder case. The restrictive order dealt with pretrial publicity and not to the trial itself.
The Supreme Court ruled in 1976 in Nebraska Press Association v. Stuart, 427 U.S. 539, that the order went too far in restricting the press. But, the chief justice, Warren Burger, and four associate judges said that they believed restrictions on witnesses would be appropriate in certain circumstances.
The situation varies somewhat depending upon whether the case is civil or criminal. The Supreme Court of Texas ruled on one aspect of civil law in Davenport v. Garcia, 834 SW2d 4 (1992).
A ruling in a criminal case came on August 2, 2001, when the 14thCourt of Appeals upheld a district judge who had imposed restrictions on witnesses and lawyers in the Andrea Yates murder case in Houston.
Rule 3.07 (a) of Texas Disciplinary Rules of Professional Conduct governs extrajudicial statements by lawyers.