Bill S4490-2013

Permits the audio and/or televising, broadcasting or taking of motion pictures of certain civil and criminal court proceedings; repealer

Permits the audio and/or televising, broadcasting or taking of motion pictures of certain court proceedings; authorizes the chief administrator of the courts to promulgate rules and regulations permitting audio-visual coverage of civil and criminal court proceedings.

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  • Jan 8, 2014: REFERRED TO CODES
  • Apr 3, 2013: REFERRED TO CODES

Memo

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 4490 2013-2014 Regular Sessions IN SENATE April 3, 2013 ___________
Introduced by Sen. NOZZOLIO -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Codes 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 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 52 of the civil rights law, as amended by chapter 352 of the laws of 1976, is amended to read as follows: S 52. Televising, broadcasting or taking motion pictures of certain proceedings prohibited. No person, firm, association or corporation shall televise, broadcast, take motion pictures or arrange for the tele- vising, broadcasting, or taking of motion pictures within this state 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; except that the prohibition contained in this section shall not apply to THE AUDIO BROADCAST OF ANY PROCEEDING CONDUCTED BY A COURT, TO ANY TELEVIS- ING, BROADCASTING OR TAKING OF MOTION PICTURES OF THAT PORTION OF A COURT PROCEEDING AT WHICH NO WITNESS WILL TESTIFY, AND TO ANY TELEVIS- ING, BROADCASTING OR TAKING OF MOTION PICTURES OF THAT PORTION OF A COURT PROCEEDINGS 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 TESTIFY- ING IS VISUALLY OBSCURED OR TO public hearings conducted by the public service commission with regard to rates charged by utilities, or to proceedings by either house of the state legislature or committee or joint committee of the legislature or by a temporary state commission
which includes members of the legislature, so long as any testimony of witnesses which is taken is taken without resort to subpoena or other compulsory process, if (1) the consent of the temporary president of the senate or the speaker of the assembly, in the case of the respective houses of the state legislature, or the [chairman] CHAIR, in the case of such a committee or commission, and a majority of the members thereof present at such proceedings, shall have been first obtained, provided, however, that in the case of the public rate hearings of the public service commission, it shall be sufficient to obtain the consent of the presiding officer, (2) the written consent of the witness testifying at the time shall have been obtained, prior to the time of his OR HER testifying, and (3) it has been determined by such presiding officer or [chairman] CHAIR and such majority of the members that it is in the public interest to permit the televising, broadcasting or taking of motion pictures. Any violation of this section shall be a misdemeanor. S 2. Subdivision 1 of section 212 of the judiciary law is amended by adding a new paragraph (w) to read as follows: (W) PROMULGATE RULES AND REGULATIONS PERMITTING AUDIO-VISUAL COVERAGE OF CIVIL AND CRIMINAL COURT PROCEEDINGS, INCLUDING TRIALS, IN THE DISCRETION OF THE COURT; PROVIDED THAT THE CHIEF ADMINISTRATOR SHALL AFFORD ALL INTERESTED PERSONS, AGENCIES AND INSTITUTIONS AN OPPORTUNITY TO REVIEW AND COMMENT UPON SUCH RULES AND REGULATIONS PRIOR TO THEIR PROMULGATION, AND PROVIDED THAT SUCH RULES AND REGULATIONS SHALL BE CONSISTENT WITH PROVISIONS OF SECTION FIFTY-TWO OF THE CIVIL RIGHTS LAW AND SHALL INCLUDE PROVISIONS TO ENSURE THAT AUDIO-VISUAL COVERAGE OF COURT PROCEEDINGS SHALL NOT INTERFERE WITH THE DECORUM AND DIGNITY OF COURTROOMS AND COURT FACILITIES. S 3. Section 218 of the judiciary law is REPEALED. S 4. This act shall take effect on the first of January next succeed- ing the date on which it shall have become a law.

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