Cameras and 'Making a Murderer'


If you watched the popular, and controversial, Netflix documentary series, “Making a Murderer,” you were treated to a rare, compelling portrait of a trial inside the Wisconsin state courthouse.

If filmmakers Moira Demos and Laura Ricciardi had been covering a trial in a different state, or different level or court, their documentary may have looked a lot different.

We're familiar with fictional courtroom dramas in the movies and on TV, but in most real-life courtrooms across America, what cameras are allowed to show is strictly limited—if they are allowed in at all.

If Steven Avery's murder trial had taken place, for example, in neighboring Minnesota or Illinois, the 360-degree coverage of everything from witness testimony to reactions from the people inside the courtroom would probably not have been allowed.

Wisconsin became one of the first states to allow cameras in court in the late 1970s. Although other states have slowly changed their rules to allow limited filming and photography of court proceedings—thanks to a decision by the Supreme Court in 1981 — others continue to bar cameras altogether.

Some of the country's leading jurists, legal scholars and civil libertarians think it's time to open the courtroom doors wider.

“If you're able to see it in the courtroom, you ought to be able to see it wherever you are,” Jonathan Lippman, whose term as New York State Chief Judge ended last month, said in a radio interview.

In one of his last acts as head of New York's Unified Court System, Lippman announced new rules that will formally permit cameras into the state's courtrooms. Similarly, Minnesota and Illinois are currently conducting pilot programs to test more open camera access.

Supporters say the essential issue is the public's right to know what goes on in court, and the media's First Amendment right to show it to them. The Coalition for Court Transparency, a coalition of press organizations, argues that more access would also help educate the public about court proceedings and that a more informed public would foster a healthier, open dialogue about issues of justice.

Not everyone agrees. Those opposed to letting cameras into courtrooms, in fact, also use a rights argument. They claim that cameras get in the way of defendants' right to a fair trial and can turn serious court proceedings into entertainment.

This position has found some support in the Supreme Court. Justices have not extended their earlier acceptance of cameras in state courtrooms to the highest court in the land, The Court has long resisted allowing cameras to record its proceedings, even after significant pressure during high-profile cases on the Affordable Care Act and same-sex marriage.

Justices have argued that broadcasting their proceedings could result in grandstanding by attorneys. Moreover, they worry that broadcast outlets would use snippets of cases that do not accurately reflect what goes on in court.

“Making a Murderer” seems to support both camps.

The documentary is entertainment and binge-worthy, but the series has also created serious public discourse on problems with the criminal justice system, as well as how the media portrays court cases.

Some in Wisconsin who thought Avery was guilty based on original news reports have even begun to question their opinions after seeing the extended coverage in the documentary.

Editor’s Note: What do you think? Take our readers' poll below.

34 States Allow Cameras in Court

To get a clear picture of where and when cameras are allowed into America's courtrooms, as well as what barriers still exist to allowing them in, The Crime Report reviewed policies in every state, using resources compiled by the National Center for State Courts (NCSC) and the Radio Television Digital News Association.

We found that in recent years, and as recently as a few weeks ago, states that have long prohibited cameras in court have begun to question their rules — a sign that it's probably just a matter of time until cameras are allowed into all state courts.

Whether federal courts will follow the state trend is still a big question, though we'll definitely know more soon when the feds release the results of a three-year pilot program. (See below.)

No court in the country allows unrestricted camera access. But currently, 34 states allow cameras into courtrooms as long as their use meets some basic requirements; 14 allow partial access; Oklahoma has no rule and the District of Columbia prohibits cameras.

Generally, in the 34 states where some form of restrictions apply, the default is to let cameras inside the court; whereas in the other 14 states, the default is to prohibit cameras except in certain types of cases.

However, even in the courts that allow access, what is allowed to be filmed or photographed varies. Most agree that jurors and the process of jury selection must remain off-camera. Similarly, videotaping or still photography of victims of sexual abuse, undercover officers, and certain witnesses like juveniles or relocated witnesses is prohibited.

And for the most part, the right to bring in cameras to a courtroom is limited to credentialed members of the press. The only states we found that specifically permit non-press photographers are Hawaii, New Hampshire and Oregon.

Partial access means different things in the other 14 states. Some, like Indiana and Delaware, bar cameras from jury trials. Maryland prohibits cameras from criminal trials. Others allow cameras in, but do not allow witnesses to be filmed. Some require all parties to consent to filming.

There are always exceptions in high-profile trials, where it's up to the discretion of the presiding judge and/or court administrator.

Generally, appellate courts allow more access than trial courts, which is the case for livestreaming as well, according to Deborah Smith, a senior analyst at the NCSC.

Federal district courts prohibit cameras. In the U.S. Court of Appeals, one circuit — the Ninth — films oral arguments and posts the video on its website. In 2011, the feds started a three-year pilot program where 14 district courts filmed civil proceedings and posted the videos online.

That pilot ended last summer, and the results and recommendations are expected to be released in March, according to the U.S. Courts website.

What's the Problem?

The debate over cameras in court is decades old. The argument for access turns on the media's First Amendment right to capture what happens inside a courtroom. A majority of states agree that court proceedings already open to the public should be accessible to a wider audience through the medium of film.

“The public has a right to observe proceedings in open court,” reads a statement Hal Davis of the Minnesota Coalition on Government Information submitted to the Minnesota Supreme Court when it was debating cameras in court in late 2014.

“Further opening Minnesota courts to audio and video coverage will foster community understanding and present citizens with a positive experience of what goes on in their courtrooms.”

Skeptics, however, say the presence of cameras make witnesses less inclined to testify, or their testimony may be otherwise impacted by the knowledge they are on television.

Some civil rights advocates, mindful of courtroom spectacles like the O.J. Simpson trial, worry that cameras turn serious court proceedings into pure entertainment.

Minnesota has long resisted allowing cameras into court, but last summer the Minnesota Supreme Court initiated a two-year pilot project to test cameras in criminal trials.

Minnesota Supreme Court Justice Alan Page disagreed with the decision, arguing the media would likely focus on entertainment rather than on informing the public. His most striking argument, however, was that more cameras in court would promote racial prejudice. Television news — which has been shown in studies to disproportionately cover crime stories involving African American suspects —”can have a negative effect on the perception of African Americans as a group,” He wrote.

He continued: “The court claims that irresponsible media coverage and prejudice will occur with or without camera use in criminal proceedings, but it does not follow, as noted previously, that the judiciary should play a role in facilitating such coverage and prejudice.”

The results of that pilot are due in 2018. Illinois, which long resisted cameras in court, also started a pilot program in 2012. Right now, roughly half of its circuit courts are allowing media coverage of court proceedings, according to the state court website.

Perhaps the most profound development in recent years happened in New York.

Confusion in New York

For years, the media in New York have operated under the assumption that cameras were not allowed in state courts because of New York Civil Rights Law Section 52, which has been on the books for 60 years.

The law, however, does not prohibit the media from filming much of what takes place in court. It says no one shall “televise, broadcast, take motion pictures” of “proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken, conducted by a court, commission, committee, administrative agency or other tribunal in this state.”

Judges have, like the media, interpreted those words as a blanket “no camera” rule. In fact, judges could have allowed the media to film opening and closing arguments, judgments, sentences—even witnesses who were not compelled to testify. And the law says nothing about still photography.

In the late 1980s, the state legislature temporarily allowed cameras into courtrooms, but that experiment ended and the rules have been a bit murky since.

Until now.

A few weeks ago, the New York State Unified Court System released proposed rule amendments to clarify that cameras are allowed in New York courts with the judge's permission.

“The new rules offer clarity to both the judges and the news media,” said New York State Courts Communications Director David Bookstaver. “I think they make it clear that if judges want to allow cameras into their courtrooms, they can do so.

“They are not required to do so, but they can. I think there was some confusion about that for the past 20 years.”

If the New York Court of Appeals ratifies the new rules, more cameras than ever are going to make their way into courtrooms in New York.

Where Cameras Can't Go

There is one group of people who are strongly against any rule changes that allow more cameras in court: sketch artists.

“I think it's a horrible idea,” said professional courtroom artist Christine Cornell, who works trials up and down the East Coast.

Cornell said the more cameras that are allowed into courtrooms, the more her industry diminishes. “State court used to be our bread and butter,” she said.

She mostly works federal trials where cameras are not allowed and said it would be “dismal” if the feds changed rules to allow cameras.

“[A camera] puts an awful lot of pressure on people who are testifying, it's a big distraction. It's a big distraction for the attorneys because they tend to grandstand more. It's a big distraction for the judges, they want to get elected again,” she said.

“Trials aren't supposed to be entertainment.”

Which brings us back to “Making a Murderer.” Among the dozens of questions the documentary raises, one has been left out of the discussion so far: Should cameras be allowed into courtrooms?

Do they promote transparency in justice? Or do they turn serious judicial matters into reality TV?

What do you think? Please take our readers' poll below.

Adam Wisnieski is a contributing editor of The Crime Report. He welcomes comments from readers.

A previous version of this story misidentified the organization Hal Davis is affiliated with. The group is the Minnesota Coalition on Government Information.

Readers’ Poll

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