BILL NUMBER:S4490

TITLE OF BILL:  An act to amend the civil rights law and the judiciary
law, in relation to broadcast of judicial proceedings; and to repeal
section 218 of the judiciary law relating to audio-visual coverage of
judicial proceedings

This measure is being introduced at the request of the Chief judge of
the State. It would amend section 52 of the Civil Rights Law to permit
audio-visual coverage of court proceedings in New York State under
carefully-defined circumstances.

I. Background

Section 52 of the Civil Rights Law now prohibits the televising,
broadcasting or the taking of motion pictures in public proceedings,
including court proceedings "in which the testimony of witnesses by
subpoena or other compulsory process is or may be taken." Section 52
was enacted by the Legislature in 1952 as part of the continuing
national response to the disruptive presence of audio-visual coverage
in the Lindberg baby kidnapping and murder trial of Bruno Hauptmann*.
During the 30 years that followed this enactment, there was no
audio-visual coverage of court proceedings in New York. Elsewhere in
the United States, the experience was somewhat similar although, in
response to significant contemporary technological advances making
cameras and other broadcast equipment far less obtrusive, more and
              

more states slowly began to permit some measure of audio-visual
coverage of their court proceedings**. Ultimately, there were court
challenges to the legality of such coverage, culminating in the
decision of the United States Supreme Court in Chandler v. Florida
(440 US 560 (1981)). In that case, the Court held that consistent with
constitutional guarantees a state may permit radio, television and
still photographic coverage of a criminal trial for public broadcast,
over objection of the accused; and that there is no constitutional
rule that such coverage is inherently a denial of due process.

Not long after the Chandler decision, New York began a series of
experiments in audiovisual coverage of trial court proceedings. See L.
1987, c. 113 (enacting section 218 of the judiciary Law, superseding
section 52 of the Civil Rights Law, and prescribing an 18-month
sunset); L. 1989, c. 115 (continuing section 218 and prescribing a
two-year sunset); L. 1992, c. 187 (enacting a new section 218 of the
Judiciary Law and prescribing a two and one-half-year sunset); L.
1995, c. 8 (continuing section 218 for yet another 29-month period).
Each of these experiments was followed by a careful study and report
to the Legislature and Governor on the State's resulting experience.
Uniformly, these reports applauded the experience and called for
permanent authority for the use of audio-visual coverage of court
proceedings. Nonetheless, the experiments continued until the
Legislature, in 1997, failed to renew section 218 and thereby restored
section 52's prohibition. Since that time, some New York trial courts
have permitted use of cameras in the courts, believing section 52 to
be an unconstitutional infringement on rights of the press and public.
In 2005, however, the Court of Appeals ruled that section 52 violates
neither the State nor the Federal Constitution. See Courtroom Tel.
Network LLC v. State of New York, 5 NY3d 222 (2005).


II. Why authority to permit audio-visual coverage of court proceedings
should be restored

It has been over 25 years since legislation was first enacted
permitting camera coverage of New York state court proceedings on an
experimental basis. Despite numerous studies declaring the experiment
a success, it was allowed to sunset in 1997 - after only ten years.
In the years since, we have witnessed dramatic technological advances
that have transformed the ways in which we communicate and share
information, and we are long past the time when audio-visual coverage
of the work of our courts should have become routine.

When the cameras legislation lapsed, the computer age was largely in
its infancy. The Internet was yet to emerge as the indispensable
resource it is today, digital cameras were just becoming available and
smart phones were still years away. What a far cry from today's world.
These days, news travels faster and wider than we could have imagined
even a few years ago; and, with this development, the public has come
to expect greater transparency and accountability from its government
institutions.

In 2013, an overwhelming number of states allow cameras in their
courtrooms on some level. And while New York's court system has long
been a national leader in so many ways, we remain woefully behind the
times on this vital issue. Though we understand that some state judges
now permit still photographers and video cameras into the courtroom on
a limited, case-by-case basis, the process by which such access is
granted is a cumbersome one, requiring judges to navigate the
complexities of section 52 of the Civil Rights Law, an obtuse and
outdated statute.

Section 52, which prohibits audiovisual coverage of any public
proceedings that include compulsory witness testimony, was enacted 60
years ago, when flash bulbs and film were still state-of-the-art tools
of the news-gathering trade. Surely, we can and must do better if we
truly aim to integrate the New York State courts into 21st-century
life.

A fair, open and transparent judiciary is a treasured bulwark of our
democracy. The public must be able to observe the critical work that
our courts do each and every day to see how our laws are being
interpreted, how our rights are being adjudicated, how criminals are
being punished as well as how our taxpayer dollars are being spent.
This imperative goes to the very core of the Judiciary's ongoing
efforts to familiarize New Yorkers with their courts and legal system,
build stronger bridges between our courts and the communities they
serve, and gain the public's trust and confidence in our justice
system. In the end, it is vital that concerned citizens, bombarded
with crime TV shows and court dramas that do not provide a reliable
representation of the justice system, have the fullest access to the
real thing.

Today, we clearly possess the technological tools to provide that
access. And to do so without prejudicing the rights of parties,
without disrupting court proceedings and without harming crime
victims, witnesses and jurors. For this reason, we can wait no longer
to open our courtrooms to audio-visual coverage of the proceedings


within, and thereby be able truly to proclaim that our system of
justice is open to all.

III. The proposal

Under this measure, gone will be the highly-detailed statutory
procedures for seeking and conducting coverage that marked the past
coverage experiments'. instead, this measure will directly amend
section 52 of the judiciary Law to lift the ban on audio-visual
coverage of court proceedings under the following circumstances,
subject to the approval of the trial judge:

+where audio coverage is sought of any court proceeding;

+where televising, broadcasting or taking of motion pictures is sought
of that portion of a court proceeding at which no witness will
testify;

+where televising, broadcasting or taking of motion pictures is sought
of that portion of a court proceeding at which a witness will testify
where all parties to such proceeding and the witness consent in
advance to such televising, broadcasting or taking of motion pictures
of his or her testimony or, if such consent is not given, where the
image of the witness while testifying is visually obscured

In this more consistent and logical fashion, this measure keeps faith
with the concerns of the Legislatures that adopted the four coverage
experiments of the late 1980s and 1990s that the privacy of witnesses
be protected.

Against this framework for coverage, the measure will empower the
Chief Administrative judge, after receiving broad public input, to
adopt appropriate rules to govern all aspects of coverage as
implemented in court proceedings. This will provide maximum
flexibility in meeting changing technologies and public sensibilities.

This measure would have no meaningful fiscal impact and would take
effect January first after becoming a law.

Legislative History:

None. New proposal.

*See State v. Hauptmann, 180 A. 809 (1935). Section 52 was enacted but
a few years following the American Bar Association's promulgation of
Canon 35, banning camera operators from courtrooms, and Rule 53 of the
Federal Rules of Criminal Procedure, prohibiting cameras in Federal
courts.

**As of the mid-1990s, there were more than 40 states permitting some
audio-visual coverage of trial court proceedings. See An Open
Courtroom: Cameras in New York Courts 1995-97 for a list of those
states.

***Even in the wake of Courtroom Tel. Network LLC v. State of New
York, supra, there remain open questions concerning the breadth of
section 52's prohibition, e.g., whether it bans use of still cameras


and audio-visual coverage of certain proceedings where witness
testimony is not taken. But see Matter of Heckstall v, McGrath, 15
AD3d 824 (3d Dept., 2005). Some courts have sought to exploit the
resulting uncertainty.

****The experiments were enabled through adoption of section 218 of
the Judiciary Law, which laid out an exception to section 52.
Technically, section 218 remains in the Judiciary Law although it is
no longer effective. See Judiciary Law § 218(11). Accordingly, this
measure must formally repeal it.