One of the first questions people ask when I tell them about our project, Order in the Court 2.0, to live-stream court proceedings is, “Is there a way to turn the camera off?” They must imagine a camera bolted to the wall, gobbling up images of domestic violence victims and child sex offenders with no regard to how it affects justice being served.
But I have the opposite fear too — that the judges in those courtrooms will become so skittish that they’ll keep turning the camera off and we’ll lose the ideal of openness that is the purpose of our project and a cornerstone of that little thing we call democracy.
So this question of when to keep the camera on and when to turn it off is a complicated one that involves balancing transparency with privacy. It has provoked more controversy than any other question that we’ve posed.
Knowing that we had a range of viewpoints from “show everything” to “protect the privacy of victims,” we asked the Cyberlaw Clinic out of Harvard Law School to put together a preliminary checklist of reasons that the camera could potentially be turned off and took the list to meetings with both local and high-level stakeholders to get their input.
We want to work towards a list of loose guidelines that could guide the judges and clerks, while causing the least amount of interference with the court’s business.
First, a little bit about our setup. There will always be a producer present when the camera is on, but it will be the judge and the clerk who actually turn it on and off.
Down in Quincy
We met with the local group in Quincy District Court first. We first ruled out certain proceedings from live-streaming: any cases involving minors or the victims of sexual abuse or assault; and any part of the voir dire or jury empanelment hearings. We also won’t be showing the faces of jurors.
Participants brought up the statues that protect the privacy of criminal records and mental health records and we debated how to deal with those cases.
Then came the cases that are up to the judge’s discretion. First Justice Mark Coven reiterated that all proceedings were free to be live-streamed but that he would be willing to consider turning off the camera on a case-by-case basis. If a lawyer or advocate has good reason to object to a proceeding being filmed, he or she may file a motion. Judge Coven has said he doesn’t want to scare women off from applying for a restraining order.
People at the meeting brought up cases that they could imagine objecting to. These cases tended to fall into three major categories: the protection of victims, of witnesses and of defendants. For example:
- A woman filing for a restraining order who won’t go forward with it if she has to appear before the camera.
- A spouse or parent committing a family member for substance abuse who doesn’t want the community to know about their family problem.
- An inflammatory sexual assault allegation that the defense has reason to believe is fabricated.
- An identification case.
The defense lawyers and the representative of DOVE, the domestic violence advocacy group, were satisfied with the result, saying that we can’t fully know how people will react to the camera until the project really begins.
Meanwhile, back up in Boston
When we put the same issues before our advisory board, they came up with the opposite answer to the question about restraining order hearings.
We recruited for our advisory board the same constellation of diverse viewpoints as we did with the local group, with the idea that they could offer us a kaleidoscopic view of the court. When we debated whether or not to show the restraining orders, we saw their full range of opinions.
We presented one of the arguments for showing the restraining order proceedings that had come out of our local meetings: the idea that a domestic violence victim watching at home might see the process and understand that she (or he) could come down to the court to apply for one themselves.
The representative of the Massachusetts Bar Association disagreed with this, saying that there are better ways to educate the public and that showing the proceedings could both expose the victim to more physical danger and public humiliation as well as permanently damage the reputation of those who have restraining orders filed against them that are eventually denied.
The head of the D.A.‘s Victim Witness Services department concurred, saying that this project “can’t afford a body.”
Massachusetts Supreme Judicial Court Justice Robert Cordy also agreed, saying that family issues are too sensitive and too fraught with peril to live-stream, at least at the beginning stages of our project.
The only objection came from a Boston University law professor and former ACLU counsel who said that if reporters are allowed into the courtroom, then our cameras should be too. (He also made the disclaimer that as an academic he doesn’t really have a dog in the race.)
Justice Cordy said that in theory that’s how we would like to operate but in reality there are perils of opening the court through technology. He said he didn’t want this issue to trip up the project right at the beginning and that we should revisit the issue later.
These comments drove home to us the seriousness of our project and the impact it might have on people’s lives. We want to proceed carefully.
Back in Quincy, Judge Coven disagreed with the advisory board’s decision, saying that he believed live-streaming the proceedings would show what a big problem domestic violence is in Quincy, but that he would abide by the decision. He plans to move sensitive cases to other courtrooms rather than turning on and off the camera.
With all of this input, we’ll be finalizing the checklist of guidelines soon.