Consent of the Accused Essential to Ensure Fairness and Due Process
Cameras in the Courts in Criminal Cases?
Washington, DC (February 28, 1996) -- Persons accused of crime must have the final say over whether their trials are televised, the National Association of Criminal Defense Lawyers' (NACDL) board of directors voted this week, on a question that has split criminal defense lawyers into two camps since "cameras in the courts" became a practical reality over a decade ago.
"The paramount consideration must be what is fair and just for the accused," said NACDL President Robert Fogelnest, summarizing the result of the board's debate of the issue at its Midwinter Meeting in Miami. "While most of us agree that cameras in the courtroom can serve positive purposes in educating the American public and preventing abuses of the judicial process, the first and most fundamental consideration in a criminal case must be the rights of the accused to a fair trial."
COURT-TV anchor and former criminal defense lawyer Rikki J. Klieman argued that cameras should be permitted in all trials. "The public scrutiny the cameras afford is extremely helpful in keeping trials fair to all parties," Klieman told the board during the debate.
But prominent New York criminal defense lawyer and NACDL board member Jack T. Litman staunchly opposed televising criminal trials without the consent of the accused. Litman noted that "the perceived value of cameras in the courts is far outweighed by their interference with our clients' fair trial rights, the fragility of a system of justice at risk of being swept away in the tide of entertainment and ratings, and the indelible stain on our clients' reputations."
NACDL's board agreed that televising trials educates citizens and, more importantly, ensures public scrutiny of judges, prosecutors, defense lawyers, and the justice process. But in adopting its policy resolution on the issue, the board insisted that the overriding consideration is ensuring a fair trial and due process for persons accused of crime. In the end, criminal defendants must have the final word on whether cameras in the courtroom would interfere with their constitutional protections during trial.
35 states allow televising of criminal trials, but only two (Alabama and Oklahoma) currently give the accused a right to reject coverage. Cameras are still prohibited from federal trials -- a ban that many criminal defense lawyers find frustrating, because the need for openness and public scrutiny is not acknowledged at all.
Litman is the author of a sharp dissent from the recommendations of a special committee of the New York Bar Association that cameras be permitted in courts. The only criminal defense practitioner appointed to the New York committee, his dissent argues that the committee's recommendation was pre-ordained rather than the result of responsible study of the issue.
Following the decision of NACDL's board, Association President Fogelnest also appointed a committee, headed by board member and prominent New York criminal defense attorney Barry Scheck, to develop guidelines for use by lawyers and journalists in analyzing or commenting on televised trials in a manner that fosters public education about the importance of the American jury system and the presumption of innocence for persons accused.