Journal of Criminal Law and Criminology Volume 86 Article 9 Issue 3 Spring Spring 1996 TV Or Not TV--That is the Question Christo Lassiter Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Christo Lassiter, TV Or Not TV--That is the Question, 86 J. Crim. L. & Criminology 928 (1995-1996) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/96/860-0928 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 86, No. 3 Copyright © 1996 by Northwestern University, School of Law Printed in U.S.A. TV OR NOT TV-THAT IS THE QUESTION CHRISTO LASSITER* I. INTRODUCTION The Courtroom Television Network, now in its fifth year, is the first serious commercial effort to televise selected trials nationally and to provide expert commentary on what happens in America's court- rooms.' More than twenty million viewers have access to the Court TV network.2 Court TV has televised more than 340 trials.3 Apart from its entrepreneurial aspirations, 4 Court TV hopes to permit the Ameri- can public to see the inner workings of a trial courtroom.5 * Associate Professor of Law, University of Cincinnati College of Law and "Of Counsel" to the law firm of Fost &Jacobs. B.A. 1978, University of Chicago; MA 1982, University of Michigan;J.D. 1983, University of Michigan School of Law. The views expressed are solely the views of the author and do not necessarily reflect the views of anyone associated with the University of Cincinnati or with Frost & Jacobs. The author gratefully acknowledges Ronna G. Schneider, Professor of Law, University of Cincinnati College of Law for intro- ducing me to this topic, Dean Joseph P. Tomain for helping me to develop my thoughts and to Professor Michael Tigar at the University of Texas Law School and Professor Arnold H. Loewy at the University of North Carolina at Chapel Hill School of Law for reviewing a draft of this article and providing valuable comments. Finally, the author is most grateful to Jennifer Stainforth and Todd Huntey, research assistants extraordinaire and Michele Murphy, library research assistant extraordinaire. I Court TV's fare consists primarily of state criminal prosecutions, but also includes civil cases. 2 Telephone Interview with Steve Brill, Chief Executive Officer of Court TV (Jan. 11, 1995); see also Laura Morice, Court TVs Dramas Are Stranger Than Fiction, STAR TRiB., June 18, 1994, at 1E. 3 Morice, supra note 2, at 1E. 4 See also Steven Brill Talks About Court TV (PBS television broadcast, Dec. 19, 1995). 5 [O]ne day in 1989 Mr. Brill thought up the idea for Court TV. It came to him while riding in the back seat of a New York taxi, listening to radio coverage of a local trial. "This is good drama," Mr. Brill thought. "Why not do it all day? And on televi- sion?" It seemed like a perfect way to reach non-lawyers. Since its debut in the summer of 1991, Court TV's live coverage has included such "good stories" as the William Kennedy Smith rape trial, the Jeffrey Dahmer in- sanity hearing, the Rodney King police-brutality trial, the Woody Allen/Mia Farrow custody hearing, the Reginald Denny beating case and-not to be overlooked-that blockbuster of a trial featuring the Menendez brothers, Lyle and Erik, who shot their parents and then went shopping for a Porsche and a couple of gold watches. When it comes to storytelling, these trials have got it all. Sex. Violence. Canni- balism. Corruption. Greed. Racial injustice. Wife battering. Family intrigue. You could say they are the Greek myths and Russian novels of our time; the modern-day eguivalents of the tragic Electra ("Accused of Murdering Mother and Mother's Lover with Brother," as Court TV might caption it on your screen) or the brothers 928 1996] TV OR NOT TV 929 Televised coverage of trials is a growth industry, fueled by an oversupply of lawyers competing for clients in an information-inten- sive free market economy6 as well by a public eager for courtroom drama.7 Forty-seven states have adopted legislation which allow televi- sion cameras in the courtroom in some form, subject to the judge's discretion. 8 However, the exercise of this discretion may yield to the Karamazov ("Accused of Murdering Father"). "A trial is a story," says Mr. Brill, "and that's part of the fascination. It's about people who are in peril. Someone in that courtroom is either in danger of losing his or her life or losing a lot of money. And they're trying to fight off that peril. And there's a result. Do they win? Or do they lose?" A trial, when televised live, he says, is also a cliffhanger. Nobody knows the end until the end. Not the judges, not the viewers, not the lawyers, not the defendants. That's the basis for Court TV's recent advertising campaign: "Great Drama. No Scripts." "It's very exciting," says Mr. Brill, "because anything can happen." And he argues that a sense of community can come out of watching a live event on television: "It gives people a feeling that we're doing this together," he says. Alice Steinbach, Steven Brill Plans to Bring the O.J. Simpson Trial to the Small Screen, BALTIMORE SUN, Sept. 25, 1994, at 1J. 6 In response to a mushrooming population of lawyers, the bar has increasingly ac- ceded to governance per free market principles. Lawyers may advertise for business. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977). It should not be surprising then, that in- court cameras with their implications for publicity and free advertising have garnered a following among legal practitioners with marketing or political ambitions. 7 Paula Span, Court TV, Tried and True; The Network That Even Lawtyers Thought Would Be a Snore Has Turned into a Sleeper, WASH. POST, Jan. 12, 1994, at D1. 8 This oft-quoted figure somewhat mischaracterizes the depth and breadth of camera accessibility. Television coverage of trials is not as overwhelming as generally reported. While 47 states permit live television coverage of trials in some form, only about 26 states regularly allow cameras in the courtroom. Furthermore, most states which allow cameras in the courtroom give an individual judge wide discretion to exclude them, especially in domestic and probate courts. See Wendy Benjamin, Shroud of Secrecy Increasingly Veils Trials in Texas, HOUSTON CHRON., Mar. 13, 1994, at Al. The 47 states which permit live television coverage of trials place various types of limi- tations on such coverage. The limitations are as follows. Appellate only-Eight states (Dela- ware, Idaho, Illinois, Louisiana, Maine, Maryland, Nebraska and Utah) limit coverage to appellate proceedings only. Defense consent-Many states require consent to televise all or part of the trial proceeding. Eleven states (Alabama, Arkansas, Indiana, Maryland, Minne- sota, Mississippi, Oklahoma, Pennsylvania, Tennessee, Texas and Utah) have enacted stat- utes which require exclusion of cameras in the absence of defense consent in criminal cases. Civil cases--Ten states (Alabama, Arkansas, Indiana, Maryland, Minnesota, Missis- sippi, Pennsylvania, Tennessee, Texas and Utah) have enacted statutes which require ex- clusion of cameras in the absence of defense consent. VTtim consent-Nine states (Alaska, Iowa, Kansas, Maryland, Missouri, New York, North Carolina, North Dakota and Ohio) permit exclusion of cameras for portions of the victim's testimony. Three states (Connecti- cut, NewJersey and Virginia) have enacted statutes permitting exclusion for the entire trial when the charges involve allegations of sexual misconduct. Two states (Hawaii and Wis- consin) provide for a presumption of good cause to exclude cameras during the taking of testimony from child witnesses. Witness consent-Thirteen states (Alabama, Arkansas, Indiana, Minnesota, Mississippi, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Ten- nessee, Texas and Utah) have enacted statutes permitting exclusion of cameras for that portion of the trial relating to the witnesses' testimony upon the objection of that witness. Civil trials only-Pennsylvania permits television coverage of civil trials only. Texas has no 930 CHRISTO LASSITER [Vol. 86 siren call of the media. Only Indiana, Mississippi, South Dakota and the District of Columbia impose an absolute ban against in-court cameras. 9 Despite the surge in popularity of televised court proceedings, the bar has always, at best, been ambivalent about embracing cameras in the courtroom. Television coverage of a high profile criminal case such as the O.J. Simpson trial-the new "trial of the century" and per- haps the most watched event in history 0-has by its very success or excess renewed interest in the wisdom of allowing cameras in court." Contemporaneous with the excesses of television coverage, a dis- cernible tide has risen against cameras in court, especially in simul- casts of high profile cases. 12 It is not yet determined how state courts statutory rules regarding televised coverage of criminal trials. Eliminating for double counting, these statutory limitations lower to 26 the number of states with statutorily un- restricted opportunities. Of course, in these 26 states, individual judges may exercise dis- cretion to deny the application for televised coverage. See infra Appendix A, for a comprehensive summary of state statutes. 9 See infraAppendix A. 10 The O.J. Simpson case has been an intensely watched worldwide event. Bernard Weinraub, The Simpson Case: The News Media; TVNews Displays AirPowerin Chase, N.Y.