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thesis entitled

FREE PRESS - RIGHT TO PRIVACY:
EXTENDED MEDIA COVERAGE OF TRIAL WITNESSES

presented by

Michele Eileen McCauley

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MA Telecommunications

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4' 1.)

FREE PRESS - RIGHT TO PRIVACY:
EXTENDED MEDIA COVERAGE OF TRIAL WITNESSES

By
Hichele Eileen McCauley

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

1HASTER.OF ARTS

'Department of Telecommunications

1988

ABSTRACT

FREE PRESS - RIGHT TO PRIVACY:
EXTENDED MEDIA COVERAGE OF TRIAL WITNESSES

By
Michele Eileen HCCauley

The landmark case, Qhagfil§r_xL_Elggid§. 449 0.8. 560
(1981) announced that the presence of extended media during

a trial did not deny defendants a fair trial. However, no
serious consideration had been given to the privacy concerns
of sensitive witnesses, especially victims of crime. A
historical study revealed individuals considered newsworthy
lose much of their right to privacy. During extended media
coverage of trials, witnesses must rely on state guidelines
and media ethics to insure some form of privacy protection.
Extended media coverage of trials can be educational to the
public. However, the media must not revictimize a
witness/victim merely to provide a titillating story on the
evening news. The courts must also consider the effects of
the publicity, and enforce protective measures to shield the

witnesses from unwarranted coverage.

Copyright by
MICHELE EILEEN MCCAULEY
1988

To my parents,

Gene and Shirley McCauley

The love, encouragement, and support you shower me
with daily has helped me reach this goal, and not
be afraid to go on to another. Though I don’t

always show it, I love you both very much.

iv

ACKNOWLEDGMENTS ‘

Sincere thanks to Dr. Thomas Muth, who has
encouraged and supported me from the very start of my
graduate studies. His criticisms were balanced by
compliments, making my thesis project a desirable challenge,
not a dreaded chore. Special thanks also to Dr. Gerald
Miller, whose interest in my thesis topic encouraged me to
produce the best work I am capable of.

Thank you to Sheila Skutar, a great typist, but an
even greater friend. We shared some rough times, yet we
always seemed to end up laughing.

To my brother Tim, his wife Sharin, Gabe, and Dani,
who helped me relax and enjoy myself, and forget about
school for awhile, when I was home for a visit.

Thanks to my brother Dan, and my sister Tracey. The
letters and phone calls (and few extra dollars!) always
seemed to come when I needed them most. When we’re together
I’m still treated like the baby sister, but I don’t mind
since it shows that we can still be close even though we
live so far away from each other.

Special thanks to Vivian and Frank Albert, my

"adoptive parents", who helped me out so much while I’ve

been at MSU. A simple thank you is hardly enough. It’s
easy to see why my parents treasure their friendship so

highly -- you’re very special people.

vi

Chapter

TABLE OF CONTENTS

Introduction . . . . . . . . . . .

Research Question . . . . . . .
Subsidiary Questions . . . . . . . .
Review of Literature .

Research Method

Endnotes . .

The Constitution:

An Historical Sketch of Relevant Sections

The First Amendment .

The Fourth Amendment .

The Sixth Amendment . . .
The Fourteenth Amendment .
Endnotes . . . . . .

Privacy Rights .

Endnotes .

Aural and Visual Media and the Courts:

Relevant Court Decisions . . .

Endnotes . . . . . . . . . . . . . .

Extended Media in the Courtroom:
Opinions and Research . . . . . .

The Media . . . . . . . . . . . .
The Judicial System . . . . . . .
Victim/Witness Advocates .

Research . . . . . . . . . . . : :
Endnotes .

vii

UbVC‘O‘

Hg...

44

59

62

62
71

80
84

96

6 Aural and Visual Coverage in the Courtrooms. . 107

Court Proceedings Covered by the

Extended Media . . . . . . . . . . 112
Future Extended Media Coverage 120
of Court Proceedings . . . . . . . . . . . . . ‘
Endnotes . . . . . . . . . . . . . . . . . 127
7 Witnesses On Trial . . . . . . . . . . . . . . 133
Rape Victims and the Second Assault. . . . . 137
Protecting the Privacy Interests of Sexual
Assault Victims. . . . . . . . . . . . . . . . 155
Endnotes. . . . . . . . . . . . . . . ..... 160
8 Findings, Implications, and
Recommendations . . . . . . . . . . . . . . . 166
Findings . . . . . . . . . . . . . . . . . . . 166
Implications . . . . . . . . . . . . . . . - . 180
Recommendations . . . . . . . . . . . . . . . 188
Endnotes . . . . . . . . . . . . . . . . . - . 203
.9 Conclusion . . . . . . . . . . . . .l. . . . . 209
Endnotes . . . . . . . . . . . . . . . . . . . 212
Sources Consulted . . . . . . . . . . . . . . . . . . . 213

viii

CHAPTER 1
INTRODUCTION

The 0.8. Constitution was designed to assure
citizens basic rights. For instance, freedom of the press
is guaranteed by the first amendment of the Constitution.
The right to a public trial is insured through the sixth
amendment; and citizens are guaranteed a right to privacy
under the fourth amendment. However, the framers of the
Constitution could not have imagined the social and
technological changes that were to occur over the years that
would generate conflicts between these amendments.

The innovation of the extended media is one such
example. When the guarantee of a free press was
incorporated into the first amendment by the framers of the

Constitution, the idea of radio and television, let alone

cable, microwave, and satellite transmission, was
inconceivable. Two hundred years later the press has
evolved into the [media -- every type of publishing which

disseminates information, ideas, and opinions through a
channel of communication. The media publicizes events and
information deemed newsworthy to the general public.
Today’s press believes the first amendment’s free press

clause encompasses the extended media when public court

proceedings are covered by the press. Since newspaper
reporters are allowed into courtrooms with their tool of the
trade, a pen and notebook, it is reasoned, then a newspaper
photographer and television crew should be permitted into
the courtroom with their tools -- visual and audio
equipment. The purpose of a free press is to allow the
media to act as a watchdog for the general public;
aural/visual coverage of court proceedings is the most
advanced and ideal way to communicate news to the citizens.

There are many arguments that support extended media
access to courtroomslt

1. The public has a right to know what
goes on in court proceedings.

2. There is a constitutional guarantee of
a free press.

3. Visual and audio recorders are merely
an extension of the courtroom walls.

Until 1981, cameras had been barred from most
courtrooms. The Supreme Court’s landmark decision in
Chandler v. Florida, 449 0.8. 560 (1981) ruled that the
presence of the extended media during court proceedings does
not deny a defendant due process of law.2 However, access
by the extended media is not an absolute; each individual
state must determine if, and to what extent, the
aural/visual media will be permitted in courtrooms. The

Chandler decision only demonstrated that the presence of the

 

extended media is not unconstitutional.

The Chandler decision addressed and outlined the
rights of both the media and the defendants when broadcast
coverage of trial proceedings is desired. However, the
rights of some trial participants must now be examined by
the courts, media, and society. Because the general
policies and laws of the United States are based on the
Constitution, the main concern during a judicial examination
is that of the defendant’s right to a fair trial. The
rights of the media are even guaranteed by the first
amendment. But trial participants, specifically witnesses,
have no constitutional rights when participating in the

judicial process, and must rely on the state to protect

their interests. Witnesses —- especially when covered by
the extended media -~ become public figures, and thus
newsworthy, unwillingly. Opponents of. extended media

coverage of victims and witnesses have many justifiable
arguments=3

1. Cameras may have a subconscious effect
on the witness.

2. There is a temptation by the media to
sensationalize.

3. Extended media coverage of some types
of trials may discourage other
victims, who may be required to be a
witness, from reporting crimes.

Witnesses are often forced to testify when persuaded

by an attorney or served a supeona. Although the testimony
the witness supplies may not be damaging to either party, it
will still be the job of the opposing attorney to discredit
the witness in any (acceptable) way possible. A witness to
a.mugging may be questioned about his/her vision, memory, or
past tendencies to fabricate stories to receive attention.
A victim of sexual assault may be questioned about the
clothing worn, the amount of physical resistance she used,
or her sexual history. In both instances, though extremely
different in the seriousness of the alleged crime, the
witnesses may be ridiculed, embarrassed, and their character
assassinated, feeling that they themselves are on trial for
committing a crime. The presence of the extended media
during the testimony may be unnerving and unwelcome to any
witness in any type of court proceeding; the fear of
publicity and public ridicule may be of equal concern to a
witness asked only three questions about seeing a car stolen
as to a rape victim who must endure endless hours of
testimony.

The delicate balance between a free press and right
to personal privacy needs to be examined and clarified as
more states open their courts to the aural/visual media.
The value the press places on responsible and ethical

reporting of court proceedings must also be studied. Even

though a state determines gha; trials will be taped or
photographed, bag the information is used is left up to the
media. Quotes out of context, small bites of video and
audio, and stories solely intended to attract a larger
audience may result in news reports which focus on only the
most interesting, not the most important parts of a trial.

Journalists, judges, attorneys, victim/witness
advocates, and members of the general public are split on
whether the right to privacy outweighs the right of a free
press. The contrasting viewpoints of these individuals who
are involved with the judicial process must be analyzed.
Each group is interested in court proceedings for different
reasons: the media wants to report newsworthy information;
lawyers want to defend or prosecute individuals; judges want
to administer justice; victim/witness advocates want to
assure that witnesses testify properly and willingly; and
the general public wants to see how the court system works
to bring justice to society.

The issue of extended media coverage and
victim/witness right to privacy is important, as it involves
constitutional rights and ethics. The media believe open
courtrooms are only fair -- that the advanced technology
which allows a trial to be broadcast across the entire

country is simply a way of opening courtrooms to citizens

who have a right to see and hear a trial, but may not be
able to attend. At the same time, however, others believe
this coverage will prevent some individuals from testifying
or even from pressing charges for fear of embarrassment or
personal harm. The media respond that a judge will deny
extended media coverage if it could be harmful to any trial
participant; but opponents point out that not all judges
and lawyers act in the best interest of the trial
participants, and thus some trials that should allow
victim/witness privacy do not. A balance between the
conflicts needs to be found; and if not, then it must be
decided whose right will be favored when conflicts of

interest do arise.

RESEARCH QUESTION

Should trial witnesses have a right to
privacy under the fourth amendment?

SUBSIDIARY QUESTIONS

1. In what classes should privacy
interests be considered?

2. When should the media’s right to free
press outweigh the right to privacy
during court testimony?

3. If extended media coverage of a witness
results in a physical or emotional
injury, who is held responsible?

4. Is the public educated as to how the

court system works by viewing a thirty
or sixty second news report?

REVIEW OF LITERATURE

The issue of right to privacy was first discussed in
1890. Since that time, court decisions, writings, and
research have offered many opinions, ideas, and findings
regarding freedom of the press and right to privacy.

Court decisions are the most important information
to be considered when debating conflicts of interest between
the press and the private citizen. When the broadcast
medium was just developing, the first cases concerning

extended coverage of trials focused on the defendant’s right

to a fair trial. Bidaaa v. Louiaiana, 373 0.3. 723 (1963),
353;: v. Taxaa, 331 0.5. 532 (1965), and Shappard v.

[flaggall, 384 0.8. 333 (1966) were heard by the Supreme
Court, which ruled that in its present state aural and
visual coverage of trials denied the defendant due process
of law; the Court concluded that when the first and
fourteenth amendment conflict, the latter takes precedence
over the former.

However, as technology made major advancements in

the broadcast industry, the opinions of the judicial system
began to change. The landmark case, Chaadlar__xa_filgrida,
449 0.8. 580 (1981) ruled that the previous Supreme Court
decisions did not announce a constitutional ban on all
audio/visual equipment. The Court went on to say each state
had the right to permit or deny extended media access; this
was reenphasized in WM
672 F.2d 818 (1982).

The 19705 saw concern moving away from defendants’
rights to the rights of trial participants, especially
witnesses. Numerous cases have been heard regarding the

privacy right that witnesses are allowed when the

press -- traditional or extended -- are present during the
proceedings. A significant case was ng_Bzgagaa§Liag_ga

Saba, 420 0.8. 469 (1975), which ruled that privacy rights
fade if information (name, address, identifying information)
is part of the court’s public record. A Florida court ruled
in 1983 ( v. -- n o ' Telev' 'o ,
436 802d 328 (Fla. App.2 Dist. 1983)), that unless the court
takes necessary precautions to protect the privacy of a
witness when the extended media has access to trials, the
witness cannot sue for invasion of privacy. Other pertinent

cases concerning privacy interests of trial participants

include. W. 457 0.8. 596

(1982) andfiishngaummw v. Virginia. 448 U.S. 555
(1880).

 

First amendment expert Thomas Emerson, offers an

indepth analysis of freedom of the press in his book, Iguana
-__; other relevant

books by Emerson include W
W and WW. Yale

Kamisar, et. a1, discusses landmark Supreme Court decisions

 

and their impact on the interpretation of freedom of the
press. Alexander Meiklejohn and Alfred Kelly also provide
insightful discussions about the history and impact of the
U.S. Constitution on the citizens it protects.

Samuel Warren and Louis Brandeis were the first to
argue that individuals should have a right to privacy. In
the flazxazg_Lag__Baziag, Warren and Brandeis stated that
privacy should be treated much like slander and libel.
William Prosser wrote an article in the C if 'a w
Baxiag suggesting four types of invasion of privacy:
misappropriation, intrusion, public disclosure, and false
light in the public eye. Prosser’s article is considered a
significant contribution to tort law. Two additional texts
offer a philosophical perspective to personal privacy:
WM and WW

10

Madia Ethigs: Qaaaa aad Moral Baasonigg discusses

the development, enforcement, and importance of ethical
standards in the print and broadcast media. Bruce Swain,
Bepgzta11§_Ethig§, looks at the modern-day reporter and the
obstacles that may hinder the reporting of news.

F. Lee Bailey and Henry Roghblatt explain the
procedures and tactics of court proceeding in W
We: detailed and enlightening
information about questioning different types of witnesses
is included. Cross-examination techniques of witnesses are
also explained in WW1
Pzggadaga and flaw 19 Ba A Wigaaaa.

Judith Rowland, a former prosecuting attorney,
discusses the crime of rape, and the problems faced by rape
victims in Iha Ultigate Violation. Actual cases are
examined, while the testimony of victims ‘ and expert
witnesses help illustrate the injustices faced by many
sexual assault victims. The National Institute of Law
Enforcement and Criminal Justice provide two publications

for the public to help deal with the crime of rape: ‘Bapa

59' -_ 7-1.1' i {.2531 _-_ '1::2- -:=_ t
I Q . . J I !' E 'l'l° and B : g .1 1' E
Cglnuaitz__fla§pgn§§. "Section B“ of the Sunny Von Bulow

National Victim Advocacy Center Curricula offers suggestions

11

to the media on how to handle sensitive issues, particularly
sexual assault, responsibly and morally. Steps that state

legislatures can take to protect victims and witnesses from

unnecessary publicity are outlined .in Egliciaa 9f the

 

Considering forty-five states allow extended media
coverage of court proceedings, very few studies have been
done to allow an indepth examination of the effects coverage
may have on trial participants. The most significant study,

, 1; ': ' ., ., foat- ew,wesk ,— ‘.. _- To: , , 370
'So.2d 764 (Fla.1979), was considered by the Supreme Court
when deciding the ghaagla; case. The surveys found that the
presence of extended media had little effect on trial
participants or the decorum of the courtroom. Susanna
Barber examined nineteen studies, thirteen of which were
conducted before 1980. The general finding was that aural
and/or visual coverage of trials did not adversely effect
trial participants. A study of two similar trials, one of
which was covered by the extended media, was done by Dalton
Lanscaster of Indiana University. Empirical research was
included in the study; however, the study was not able to be
controlled since each trial had different defendants,
attorneys, and jurors. A simulated courtroom setting

provided James Hoyt with the opportunity to analyze the

12

pressures felt by witnesses under three different
circumstances: answering questions in front of a camera;
answering questions with the knowledge that a hidden camera
was present; answering questions when no camera was
present. Hoyt found no significant difference in the verbal
responses of the subjects in the three different settings._
In 1984, two U.S. Senate subcommittees dealt with
the issue of victims testifying during court proceedings,
and the effects publicity may have on the witness. Inpagt

 

H.- 01111. :v‘ 91 Cim'a H o 1:. 9w! _== f -18

Judigiarx provided testimony from rape victims,
victim/witness advocates, and members of the media. The.

benefits and negative effects that extended coverage may

have on rape victims was discussed. The Subcommittee on
Juvenile Justice dealt with WWII!
tha_§ga;t. Though emphasizing the overall impact that

participating in a trial may have on a child, the testimony
did touch on the subject of extended media coverage of
proceedings.

Correspondence and personal interviews with.members
of the press, judicial system, and victim/witness advocates
offer personal viewpoints that are not found in textbooks.

Representatives of the media, such as Timothy Dyk, counsel

13

for CBS, Inc., Ernie Schultz, acting president of the Radio-
Television News Directors Association, and Charles McCorkle
Hauser, executive editor of the Providence Journal-Bulletin,
suggest reasons why the extended media should be permitted
to cover all court proceedings. Legal professionals,
including Judge Carolyn Stell and Judge Michael Harrison, 30
Jud Circuit, Lansing, Michigan, Donald Martin, Ingham County
(Michigan) Prosecuting Attorney, and Raymond Buffmyer,
defense attorney, Charlotte, Michigan, discuss the positive
and negative effects of aural/visual coverage of trials.
Lastly, Anne Seymour, public affairs director of the Sunny
Von Bulow National Victim Advocacy Center discusses the free
press - right to privacy conflict from the perspective of
the victim.

Transcripts from the ABC news programs Nightline,
Ihia flaak with Dav'd Brinkle , and Viengint provide
testimony that ‘was aired by the extended media during the
infamous New Bedford rape case in 1984. A variety of
viewpoints, regarding the coverage of the trial, from a

number of individuals are included.

14

RESEARCH METHOD

A historical research method will be used to analyze
the conflict of free press - right to privacy. An
examination of relevant constitutional' amendments, as well
as significant court decisions, will assist in determining
the rights of the media and of trial ‘witnesses. Current
state guidelines, along with the opinions of the media,
attorneys, and victim/witness advocates will be analyzed to
determine the attitudes and concerns held today as more
states allow extended media access to courtrooms.

This approach in research will enable a conclusion
.to be drawn about the balance between a free press and a
right to privacy. A thorough examination of the resources
available will also assist in formulating recommendations
for the media and states to consider when granting access to

aural/visual media.

ENDNOTES

1. Interview with Timothy Dyk, attorney, Wilmer,
Cutler, and Pickering, Washington, D.C. (May 19, 1987);
letter from Charles McCorkle Hauser, vice president and
executive editor, The Providence Journal-Bulletin Rhode
Island, to the author (November 6, 1986) (discussing free
press v. right to privacy); Kenneth. Dovel, ed., .M§§§_M§di§

6 (New York: Hasting House
Publications, 1982), 419.
2. Wanda. 449 0.5. 530 (1981)-
3. Interview with Anne Seymour, director of public

relations, Sunny Von Bulow National Victim Advocacy Center,
Fort Worth, Texas, in Lansing, Michigan, (June 6, 1987);
letter from Raymond Buffmyer, attorney, Charlotte, Michigan,
to the author (October 6, 1987) (discussing free press v.
right to privacy); interview with Donald Martin, Ingham

County Prosecuting Attorney, Lansing, Michigan (October 14,
1987).

15

CHAPTER 2
THE CONSTITUTION:
AN HISTORICAL SKETCH OF RELEVANT SECTIONS

During the formation of the United States the
founding fathers were determined to establish a nation of
sovereign states, free from authoritarian control.1 It was
believed that the people of the nation should be the source
of the government’s power.

While fighting the War of Independence (1775-1783)
the Articles of Confederation (1781-1789) were ratified to
establish the United States of America. The Articles
contained three major provisions:2 *each state would be
sovereign, free, and independent; the records, acts, and
judicial proceedings of the courts and magistrates of each
state would be honored; and the residents of each state
would be allowed the privileges and immunities of the
citizens in the other free states. However, at the close of
the American Revolution economic problems and political
agitation were growing -- it appeared that the Articles of
Confederation were not working.3 Alexander Hamilton, in
writing about the defects of the Articles,‘ said,

The . . . most palpable defect of the
subsisting Confederation, is the total want

of a SANCTION to its laws. The United

States, as now composed, have no powers to

exact obedience, or punish disobedience to

their resolutions, either by any other
constitutional mode.5

16

17

A convention was held by Representatives from.twelve of the
thirteen states in 1787. Numerous alternatives to the
Articles of Confederation were drawn up by Representatives,6
and the final docwment was a culmination of the original
Articles and the many proposed plans.7 The individual
states would have the primary responsibility of governing
the citizens, while the federal government would oversee
foreign relations, establish a monetary system, and ensure
the flow of commerce between the states and other countries.

The body of the Constitution did not mention the
rights of citizens. This caused some states to wonder
whether the people would accept the new government if a bill
of rights was not included in the Constitution.8 The
Constitution was finally ratified in 1787, after promises to
propose a series of amendments swayed many states in favor
of ratification.9

James Madison initiated steps to formulate amend-
ments to the Constitution during the first Congress in
1789. The majority of proposed changes concerned article I,
section 9, prohibiting bills of attainer1° and became the
first five amendments, and the eighth and ninth amend-
ments.11 The sixth and seventh amendments resulted from
proposed changes in art. III, sec. 2, guaranteeing

citizens a fair trial by jury, and the benefits of common

18

law.12 The amendments, which reflected injustices the
Americans experienced during British colonialism, were

ratified in 1791.13

When;

Congress Shall make no law respecting

an establishment of religion, or prohibit-

ing the free exercise thereof; or

abridging the freedom of speech, or of the

press; or the right of the people to

peaceably assemble, and to petition the

Government for a redress of grievances.

The first amendment is the most important con-
stitutional guarantee for the print, aural, and visual
media.14 A major purpose of the first amendment is to
protect the right of individuals to write and speak freely,
without fearing restraints or punishment by the federal
government. However, state and local government restric-
tions often denied citizens some forms of free speech and
press. The ratification of the fourteenth amendment in 1868
did little to secure the first amendment as a basic fun-
damental right.15

It was not until the 19205 and 19305 that courts
began to incorporate the first amendment’s civil liberties
in the due process clause of the fourteenth amendment. In

fiitlgu__xa__flau__xg;k, 268 U.S. 653 (1925), Justice Sanford
said,

19

For present purposes we may and do

assume that freedom of speech and of the

press--which are protected by the first

amendment from abridgement by Congress--are

among the fundamental personal rights and

’liberties’ protected by the due process

clause of the fourteenth amendment from

impairment by the States.16
In 1931, the Supreme Court formally included freedom of the
press as a fundamental right; in Naa;_xa_flinna§gta, 283 U.S.
697 (1931) the Court found unconstitutional a Minnesota
statute which required the suppression of malicious,
scandalous, and defamatory newspapers.17 Chief Justice
Hughes, who wrote the Court’s opinion, stated, "It is no
longer open to doubt that the liberty of the press and of
speech, is within the liberty safeguarded by the due process
clause of the fourteenth amendment from invasion by state
action.“19

The Naa; ruling was important to a field that was
growing and expanding quickly. Freedom of the press soon
encompassed newspapers, periodicals and magazines, radio,
and television. Thomas Emerson, in his book .Igaazd_A
Wheat. says freedom of
expression is necessary to assure individual self-fulfill-
ment, attain the truth, secure participation by citizens in
social and political decision making, and maintain a balance

in society between stability and change.19 It is evident

that freedom of expression is one of our most important

20

civil liberties, however how far one can go when expressing
themselves through free speech or press is still being
debated. John Stevens has said that the free speech and
press clause in the first amendment should favor the speaker
or press when a question of balance arises:

What it states is a commitment to
giving the benefit of the doubt to issues
of free expression when weighing them
against other societal interests. It is
not a perception; it is not even a
yardstick. It is an ideal20

First Amendment experts Thomas Emerson and Alexander
Meiklejohn, however, believe a balance is necessary when
freedom of expression and societal interests conflict.
Emerson has written,

the overall standard under the first
amendment should be one that would preserve
the right of communications so far as
possible but allow the court to protect the
rights of the individual in situations
demanding it.21

Meiklejohn believes:

The first amendment was not written
primarily for the protection of those
intellectual aristocrats who pursue
knowledge solely for the fun of the game,
whose search for truth expresses nothing
more than a private intellectual curiosity
or an equally private delight and pride in
mental achievement. It was written to
clear the way for thinking which serves the
general welfare.22

21

The Eourth Amendment
The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no warrants

shall issue, but upon probable cause,

supported by Oath or affirmation, and

particularly describing the place to be

searched, and the persons or things to be

seized.

The fourth amendment was originally intended to
protect the property of citizens from unjust actions by the
general government. Its purpose was not to safeguard
personal privacy.

Common law rights of privacy were practically
nonexistent until the 18905 when some courts began to relate
personal privacy to the law of libel.23 A Harvard Law
‘Baxiafl article by Samuel Warren and Louis Brandeis shaped
the laws of privacy by asserting that rights "could be
pieced together from strands of property law and awards for
mental anguish."34

Although the right of privacy has been without
formal constitutional foundation, the fourth amendment has
recognized personal privacy rights. By 1961, the Supreme
Court had applied the due process clause of the fourteenth
amendment to the fourth amendment.35 The Mapp_!‘_ghig, 367
U.S. 643 (1961), decision ruled that, with regard to search

and seizures, the Constitution does recognize a right to

22

privacy.26

Four years later in another privacy case (figiaggld
‘1a_§gnaagtiggi, 381 U.S. 479 (1965)) Justice Douglas stated
that ”specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees that
help give them life and substance.”37 The Court went on to
say that the penumbraszl create zones of individual privacy
and are protected by the guarantees of the first, fourth,
and fifth amendments.29 However, the Court cautioned that
the fourth amendment cannot be defined as a general con-
stitutional right of privacy, an undertaking which is the

responsibility of the individual states.30

W

In all criminal prosecutions, the accused
shall enjoy the right to a speedy and
public trial, by an impartial jury of the
State and district wherein the Crime shall
have been committed, which district shall
have been previously ascertained by law,
and to be informed of the nature and cause
of the accusation; to be confronted with
the 'witnesses against him; to have
compulsory process for obtaining witnesses
in his favor, and to have the Assistance of
Counsel for his defense.

The sixth amendment assures an accused criminal a
fair trial. In 1963 this amendment was subsumed in the

fourteenth amendment.u Justice Black, in writing the

23

Court’s opinion for Gidaon v. Wainwright, 372 U.S. 335
(1963), stated,
We accept Bette v, Bragz’a assumption,

based as it was on our prior cases, that a
provision of the Bill of Rights which is
“fundamental and essential to a fair trial”
is made obligatory upon the States by the
Fourteenth Amendment. We think the Court
in Batta was wrong, however, in concluding
that the Sixth Amendment’s guarantee of
counsel is not one of these fundamental
rights.33

The media began to read the fundamental right of a fair and
public trial as the right to cover all trial proceedings.
However, the Supreme Court said that although the media had
a right to attend most trials, as did ordinary citizens, the
press did not have any special privileges over the general
public, such as using audio and visual equipment in court-
rooms.33 It has been stressed that the sixth amendment
concept of "public trial“ is intended for the accused, and
this right may be met as long as family members and legal

counsel are present.3‘

MW

All persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the State wherein they
reside. No State shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive
any person of life, liberty, or property,
without due process of law; nor deny to any

24

person within its jurisdiction the equal
protection of the laws. [Section 1 of 5.]

The fourteenth amendment may be considered one of
the most significant and important ratifications to the
U.S. Constitution. Adopted in 1868, the amendment grew out
of the Freedmen’s Bureau Bill and the Civil Rights Act of
1866.35 The amendment’s purpose was to incorporate a
citizenship clause3B into the Constitution, and to insure
that no person’s rights would be denied on the basis of race
or color.37

The "due process" phrase was adapted from English
law, dating back as far as 1354, when the term originally
referred to common law writ.38 However, by the seventeenth
century the phrase came to mean "law of the land", and had
been a part of many of the original colonial charters.39
The phrase in the fourteenth amendment protects an in—
dividual’s right to life, liberty, and property from state
interference.4°

For nearly fifty years after the ratification of
the fourteenth amendment very few states or courts
incorporated the Bill of Rights in the due process clause.‘1
It was not until the 19405, when Justices were appointed by
President Franklin Roosevelt, that philosophies began to
change in favor of economic democracy, political liberalism,

and individual liberty.43 Justice Black announced that the

25

entire Bill of Rights should be incorporated into the
fourteenth amendment as the framers had originally in-
tended.43 However, it was not until the 19605 that the Bill
of Rights was subsumed in the fourteenth amendment.

The 19605 saw four liberal Justices on the
Supreme Court: Warren, Black, Douglas, and Brennan. The
Warren Court wanted to reform state criminal procedures by
requiring them to conduct criminal proceedings with
guarantees of fair procedures, as the federal courts did.44
This was accomplished by incorporating the fourth, fifth,
and sixth amendments into the due process of the fourteenth
amendment.45 Though it took one hundred years after its
ratification, the intentions of the fourteenth amendment, at

the close of the Warren Court, had finally been fulfilled.43

ENDNOTES

1. Samuel Eliot Morison, Henry Steele Commager, and
William F. Leuchtenberg, A ancise Hiatory of theaAaerigaa
Bapablig, 2nd ed. (New York-Oxford: Oxford University
Press, 1983), 108.

2. Alfred H. Kelly and Winfred A. Harbison, Th9
er“ Cons t‘ n: t Or' ins and v 10 (apt, 5th
ed., (New York: W.W. Norton and Company, 1976), 97-98.

3. The Eederaliat, Bicentennial Edition, (Washington~
New York: Robert B. Luce, Inc., 1976), vii.

4. The Eedar alist is a collection of articles that
appeared in the New York Press between October 178'? and May
1788. The articles, authored by “Publius" (Alexander

Hamilton, John Jay, and James Madison), campaigned for the
ratification of the Constitution.

5. The Federalist No. 21, at 125 (Alexander Hamilton)

_..._.-—_-,‘.._ ——

(Bicentennial Edition 1976).

 

6. Kelly and Harbison, supra note 2 at 114-119. (The
Virginia Plan suggested that the problem of federalism could
be solved by allowing Congress to define the authority of
the states and itself; the New Jersey Plan modified the
Articles of Confederation, and included a clause that made
treaties and acts of Congress the supreme law of the states
and enforced by the state courts).

7. 1a. at 98-99 (The three provisions from the
Articles of Confederation were retained while a provision
was added (Article VI) to specify that enforcement of the
Constitution would be done through the courts).

8. Alfred H. Kelly, Winfred A. Harbison, and Herman
Belz, eric t t t' : ts rl ' d Develop-
.aat, 6th ed., (New York: W.W. Norton and Company Inc.,
1983), 121.

9. Kelly, and Harbison, agpga note 2 at 164.

10. Winders are special acts passed by a
legislature which brings about punishment without a judicial

trial. Sag Black’s Law Dictionary (Abridged 5th ed. 1983);
ace alga Words and Phrases, “Bill of Attainder".

11. Kelly, and Harbison, aapga note 2 at 164.

12. 1g.
25a

26

13. Ralph L. Holsinger, Media Lap (New York: Random
House, 1987), 12; National Archives and Records Administra-
tion, ome Fapts .About The National Archives, General
Leaflet no. 18 (Washington, D.C.: National Archives and
Records Administration, 1985).

14. The paint media include 'newspapers, magazines,
journals, news services, and other printed sources; appal
refers to the sense of hearing. Visual is used in order to
include all things that are made visible or can be seen.
"Video", "camera“, and "electronic media” all refer to
specific types of visual aids. By using the term ”visual
media" no current or future form of extended media will be
excluded.

 

15. Jethro K. Lieberman, The Enduring Constitutign;
An Egploration of the First Two Hundred Years (New York:

‘0”

Harper and Row, Publishers, 1987), 201.

16. Gitlow v. New York, 268 U.S. 653, 666 (1925). Sag
also Stropberg v. California, 283 U.S. 359 (1931); Kelly and
Harbison, aupra note 2 at 533, 653; Yale Kamisar, William
Lockhard, and Jesse B. Choper, Constitutional Rights apd
Libertias: Qaaas and Materials, 2nd. ed., (St. Paul, Minn.:
West Publishing Co., 1967), 365.

17. Near v. Minnesota, 283 U.S. 697 (1931); Kelly and
Harbison, aupra note 2 at 653.

18. Near. 283 0.8. at 707.

19. Thomas I. Emerson, Toward A Generalmeheorzm_fwthg

-M.‘

First Amendment (New York: Random House, 1966), 3.

20. John D. Stevens, Shaping the First Amapdpent:p_1hg
Development of Free Expression (Beverly Hills: Sage
Publications, Inc., 1982), 147.

21. Emerson, apppa note 19 at 72.

 

22. Alexander Meiklejohn, Political Freedom: The
Qapstitatipnal Bowers pf the Pagpla (New York: Harper and

Brothers Publishers, 1960), 42.
23. Kelly, Harbison, and Belz, supra note 8 at 651.
24. Stevens, aupra note 20 at 128 (quoting Samuel D.

Warren and Louis D. Brandeis, The Right To Privacy. 4 Harv.
L. Rev. (1890)).

25. flapp v, thQ, 367 U.S. 643 (1961).
26. Id.; 62 Am. Jur. 2D Privacy §4 (1962, 1987).

27

27. Griswold v. Connecticut, 381 0.8. 479, 484 (196');
Kelly, Harbison, and Belz, aupra note 8 at 652.

26. Penumbras are implied powers of the federal
government. Spa Black’s Law Dictionary (Abridged 5th ed. 1983).

29. Kelly, Harbison, and Belz, aupra note 8 at 652.

30. 62 Am. Jur. 20 Privacy §4 (1962, 1987) (quoting
Kata v. United Stataa, 389 U.S. 347 (1967)).

31. 'deo nw ' ht, 372 U.S. 335, 342 (1963);
Kamisar, Lockhard, and Choper, aupra note 16 at 229.

32. Gideon, 372 U.S. at 342.
33. Estes v. Texas, 361 U.S. 532 (1965).

34. Stevens, aupra note 20 at 133; 3 L.W. Levy, ed.,
Eppzplopedia of the Apericap Constitutigp (New York:
MacMillian Publishing Co., 1986), 1493.

35. Kelly and Harbison, appra note 2 at 429*432 (The
Freedop’a Bureau Act was created in 1865. The bureau acted
as an emergency wartime relief agency for blacks who were
freed from slavery. The bill was to expire one year after
the war ended. The civil rights bill was introduced by
Illinois Senator Lyman Trumball to extend the Freedman’s
Bureau’s life. The bill also assured the civil rights of
blacks in the seceded states under federal military protec~
tion. Though vetoed by President Johnson, the Congress was
able to pass the bill).

36. 1 Levy, supra note 34 at 432. (The citizenship
clause formally defined what a citizen of the United States
was: ”All persons born or naturalized in the United States,
and subject to the jurisdictions thereof").

37. U.S. Const. amend. XIV, §1; Kelly, and Harbison,
suppa note 2 at 432; 2 Levy, appra note 34 at 757.

38. Kelly, and Harbison, apppa note 2 at 472; 2 Levy,
appra note 34 at 589.

39. 1a.
40. 2 Levy, apppa note 34 at 590.

41. Michael Kent Curtis, No State Shall Abrigga
(Durham, N.C.:' Duke University Press, 1986), 1.

42. Kelly, and Harbison, aupra note 2 at 752.

28

43. 1a. at 754 (quoting agapson v. Califorpja, 332
U.S. 46 (1948)).

44. Kelly, Harbison, and Belz, aupra note 8 at 643-
644; 4 Levy, supra note 34 at 2023-2031.

45. Curtis, supra note 41 at 2; :Kelly, apppa note at
951-952.

46. 4 Levy, supra note 34 at 2029.

CHAPTER 3
PRIVACY RIGHTS

Privacy is what separates the self from society.
Based on individualism,1 privacy has become a zone where a
person “can think his own thoughts, have his own secrets,
live his own life, reveal only what he wants to the outside
world."2 Alan F. Westin, in his book Btiyapy_apdtfipaadgp,
outlined four functions of privacy:3

1 Protects personal autonomy

2 Permits emotional release

3. Opportunity for self-evaluation

4

Allows limited and partial
communication

However, individual privacy can be violated inpa variety of
ways, resulting in the publicizing of personal matters.
Though the revelation is true, its exposure is embarrassing
and may cause mental distress.

The word "privacy" does not appear in the
Constitution or the Bill of Rights.‘ However, through the
years privacy rights have been based on the first eight
amendments, as well as the fourteenth amendment.5 There are
four branches of privacy law within the U.S. Constitution:6

1. Personal privacy (as outlined by Dean
William Prosser’s Privacy tort)

2. Fourth amendment protection of indivi-
dual privacy from governmental in-
trusion

29

30

3. Protection from the government
gathering and disseminating private
personal information
4. Right to engage in private behavior,
and free from the intrusion of the
curious public and government
Individual states also have privacy laws, outlined in con-
stitutions or statutes, which vary greatly from state to
state.

There had been no serious consideration or
discussion of the right of privacy until 1890 when Samuel
Warren and Louis Brandeis wrote an article on the need for
individual privacy rights against the intrusion of
gossipmongers, particularly the press. Warren and Brandeis,
asserting privacy rights were a kind of property right,
believed that invasion of privacy was trespassing -- which
itself evolved from physical injury to moral and emotional
well-being.7 The two men relied on the common laws of
defamation, invasion of preperty rights, and breach of
confidence when writing about privacy.a

Warren and Brandeis asserted, "Recent inventions and
business methods call attention to the next step which must
be taken for the protection of the person, and for securing
to the individual what Judge Cooley calls the ’right to be

let alone."9

31

The article went on to say:

Instantaneous photographs and newspaper
enterprise have invaded the sacred
precincts of private and domestic life; and
numerous mechanical devices threaten to
‘make good the prediction that “what is
whispered in the closet shall be proclaimed
from the housetops.“1°

The two law partners reasoned that the advancement of
culture and civilization had caused people to begin
treasuring privacy; however, cultural and civil advances
brought with them modern enterprise and technology--
photographs and newspapers -- making solitude and privacy
even more difficult to secure. The result of being
subjected to unwarranted publicity, Warren and Brandeis
said, was mental pain and distress “far greater than could

be inflicted by mere bodily injury.11 The ensuing injuries

were said to resemble those inflicted upon a victim of

slander and libel, for which legal ' remedies were
attainable.12 However, unlike defamation, tzuth was not the
main concern in issues of privacy invasion. According to

Warren and Brandeis, privacy concerns a desire to pamaip
,pziyata, whether or not the (txnth was provided by the
invader.13

When arguing for the personal right of privacy
Warren and Brandeis suggested that common law guaranteed

individuals the right of determining the extent to which

32

thoughts, sentiments, and emotions could be made public.14
Warren and Brandeis also maintained that the right of
property, which encompassed all possessions, including all
rights and privileges, also included the right to an
unmarred personality; thus, it was felt that the right of
property was the basis upon which some privacy protections
could rest.15

However, Warren and Brandeis concluded that the
right of property was not sufficient to protect individuals’
most intimate matters from becoming public. The right of
privacy needed to become law:

The design of the law must be to
protect those persons with whose affairs
the community has no legitimate concern,
from being dragged into an undesirable and
undesired publicity and to protect all
persons, whatsoever; their position or
station, from having matters which they may
properly prefer to keep private, »made
public against their will.16

It was the publigation and the effect of disclosures, not
the actual apt of intrusion, that Warren and Brandeis were
most concerned about preventing.17 The article concluded,

The common law has always recognized a
man’s house as his castle, impregnable,
often, even to its own officers engaged in
the execution of its commands. Shall the
courts thus close the front entrance to
constituted authority, and open wide the
back door to idle or prurient curiosity713

33

Warren and Brandeis did admit that a person’s life
may cease to be private if for some reason the protection of
privacy is lost. The idea of the “newsworthiness“ defense
in later years resulted from this statement by Warren and
Brandeis.l9

In 1960 Dean William L. Prosser wrote an article
entitled ”Privacy“, outlining invasion of privacy. This law
review article, as well as the Warren and Brandeis privacy
article, made the right of privacy central to the law of
torts.2°

The accepted definition of right of privacy states
that a person has the right to be left alone, to live a life
of seclusion, or to be free from unwarranted publicity.21
Prosser suggested that there were four different kinds of
privacy invasion:22

1. Appropriation, for the defendant’s

advantage, of the plaintiff’s name or
likeness

2. Intrusion upon the plaintiff’s

seclusion or solitude, or into his

private affairs

3. Public disclosure of embarrassing
private facts about the plaintiff

4. Publicity which places the plaintiff in
a false light in the public eye

Appropriation concerns the use of an individual’s

name or likeness, which may be considered private

34

property,33 for the benefit and financial gain of another.
Many court decisions have awarded recovery to individuals
who have not consented to the use of their name, picture, or
other likeness by people to sell .a product, enhance a
corporation’s image, or for other business purpose5.3i
However, a person cannot argue that their privacy has been
invaded if "the mere incidental mention of the plaintiff’s
name“ appears in a book or film, or if the plaintiff appears
incidently in a published photograph or newsreel.25
Although protection of individual privacy plays a role in
appropriation cases, it is the recognition of the
plaintiff’s name and likeness as an exclusive tradename and
trademark that are the determining factors.26

Intrusion involves an uninvited individual entering
upon the premises or into the private affairs of another
person. For this type of invasion to be actionable the
intrusion must be offensive or objectionable to a reasonable
person. No right to privacy exists on a public street or in
a public place, and “[nJeither is it such an invasion to
take his photograph in such a place, since this amounts to
nothing more than making a record, not differing from a full
written description.“27 The interest protected in intrusion
is a mental one. The intrusion defense is often used when

trespass, nuisance, and the intentional infliction of mental

35

distress claims need added support.28 There are two
determining factors for intrusion of privacy=39 the paapa
used to obtain the information; the pungfia of obtaining
the information.

Public disclosure invades personal privacy by
making known true private, often embarrassing, facts. There
are three requirements for recovery of public disclosure:30

the disclosure must be a pptlig one; the fact disclosed must

be a ppiyata one; and the item disclosed must be highly
objectionable and offensive. The Second Restatement of

Torts also stated that to claim invasion of privacy the
public must not have a legitimate interest in having the
disclosed information available.31 Alfred Hill, in his law
review article "Defamation and Privacy Under the First
Amendment", went so far as to suggest that the controlling
basis for privacy invasion "is the single principle of the
shocking character of disclosure, such as when there is a
disclosure of the name of a rape victim long after the
crime.”2

The fourth type of invasion of privacy concerns
publicity which places a person in a false light in the
public’s eye. The publicity attributed to a person may be
an utterance or an opinion.33 The false light may also be

in the form of a photograph used to illustrate something in

36

which the plaintiff has no connection, but it is implied
that there is a connection.34 In 1967, the Supreme Court
ruled that a publication is privileged to print material
unless the false statements made about the plaintiff were
made willingly and knowingly by the defendant.35

If privacy rights are intruded upon by any kind of
invasion, damages may be rewarded for presumed mental
distress or for other harm.33 Proof is not required when
seeking damages. However, the law is not to protect the over
sensitive individual, and, people must realize that to some
paaappapla extent our lives will be under public eye=37

The ordinary reasonable person does

not take offense at mention in a newspaper

of the fact that he returned home from a

visit, or gone camping in the woods. .

It is quite a different matter when the

details of sexual relations are spread

before the public eye, or there is highly

personal portrayal of his intimate private

characteristics or conduct.

The right of privacy, however, as with all rights,
is not absolute; there are limitations to the right of
privacy. Often times people who feel their privacy has
been invaded are surprised to learn that circumstances
surrounding the situation have caused the individual to
surrender privacy rights:80 the plaintiff may have

originally sought and consented to the publicity, therefore

he or she cannot complain; the personalities and affairs of

37

the plaintiff may already be public and are no longer
considered private; the Constitution gives the press the
privilege to inform the public of legitimate affairs that
concern the public.

The privilege of the press is a common defense in
invasion of privacy cases. News is said to be all events
and items of information that are out of the ordinary
everyday routine.’9 As long as the event being publicized
is not offensive or indecent and is of interest to the
general public the event is said to be newsworthy, and no
right of privacy can be claimed.‘‘0 The name or picture of
someone can also be publicized as long as it is of news or
historical interest to the public, and no invasion of
privacy occurred when obtaining the information.‘1 However,

the press has been given great latitude in

defining newsworthiness. People who are
catapulted into the public eye by events

are generally classed by privacy law along

with elected officials. In broadly

construing the Warren and Brandeis public

interest exemption to privacy, the courts

have ruled material as newsworthy because a

newspaper or station carries the

story. . . . But is not the meaning of

newsworthiness susceptible to trendy shifts

in news values and very dependent upon

presumed tastes and needs?‘2

Some people willingly give up their right of
privacy when they have become public figures because of

their business, character, accomplishments, or mode of

38

life.‘3 However, other individuals become public figures
unwillingly due to an act the person commits or is a part of
which interests the general public. During the period of
interest, and for a reasonable time' afterward, consent is
not required to use pictures, stories, and comments.‘H
W. Page Keeton and William Prosser said,
Caught up and entangled in this web of

news and public interest are a great many

people who have not sought publicity, but

indeed . . . had tried assiduously to avoid

it. They have nevertheless lost some part

of their right of privacy. The misfortunes

of the frantic victim of sexual assault,

the woman whose husband is murdered before

her eyes, or the innocent bystander who is

caught in a raid on a cigar store and

mistaken by the police as the proprietor,

can be broadcast to the world, as they have

no remedy.45

The media may also report on judicial proceedings so
long as the report is accurate and true.“6 For instance, a
defendant in a criminal proceeding is a newsworthy person,
thus the media has a right to report on the trial proceeding
even though the defendant may object. However, "the liberty
of the press does not confer on an individual the privilege
of taking advantage of the incarceration of a person accused
of crime to photograph his face and figure against his
will."47 Furthermore,

the constitutional right to a public trial

is a privilege intended for the benefit of

the accused, and does not entitle the press
or public to take advantage of his

39

voluntary exposure at the bar of justice,

”to picture his plight in the toils of the

law."u

Public court records are often used for obtaining
information for a news report. If the information is
already in the public domain, disclosure cannot be
prohibited.49 However, reporters must be careful because
the information obtained may be misleading or erroneous if
the trial has not had all arguments presented yet. The news
media must also be careful in states where the media can be
penalized for publicizing the identity of victims of rape or
other assaults, if the identities do not appear in the
public court records.50

Inevitably, policies and actions will favor some
individual rights over others. Most conflicts arise when
one party feels personal privacy is of primary importance,
while the opposing party believes societal interest is the
major consideration. Some suggest that morals and ethics
should play a role when determining if privacy interests or
societal interests should outweigh the other.51 Clifford
Christian, Kim Rotzoll, and Mark Fackler said,

By law, once individuals figure in the

news they cease to be private persons

protected by applicable statutes. But it

is here that the photographer should

consider the moral guideline that suffering

individuals are entitled to the same
respect as any other human being, despite

40

the fact that events may have made them
part of the news.52

Charles Fried, in his article "Privacy A Moral Analysis"

wrote:

Privacy is not simply an absence of
information about us in the minds of
others; rather it is the gpptzpl we have
over information about ourselves. . . . We
may not mind that a person knows a general
fact about us, and yet feel our privacy
invaded if he knows the details.53

ENDNOTES

1. An indiyidpal is commonly considered a private or
natural person. Pertaining or belonging to, or character-

istic of one single person. (Se§,Black’s Law Dictionary
(Abridged 5th ed., 1983).

. Thomas I Emerson. WW
Expxagaign (New Yerk: Random House, 1970), 545; Thomas I.
Emerson, Norman Dorsen and David Haber, (Balitipal_apd_giyil
WW. 3rd ed (Boston= Little.
Brown and Company, 1967), 1:238.

3. Westin. W. in Emerson. supra
note 2 at 546.

4. Clifford G. Christians, Kim B. Rotzoll, and Mark

Fackler, Nadia Ethipa: Caaaa and Moral Baaapnipg (New York:
Longman, Inc. , 1983), 109; Emerson, Dorsen, and Haber, appza

note 2 at 237.

5. Christians, Rotzoll, and Fackler, appya note 4 at

109.
6. Emerson, Dorsen, and Haber, appta note 2 at 238-240.
7. Levine, Ezivapy ip the Ipaditipp pf tha Westepp
prld in William C. Bier, S.J., ed., Privacy: A Vapishipg

Ealpa? (New York: Fordham University Press, 1980), 7.

8. Lance, ' r v : 5' 'n
£9mmpn_Lag_in Bier, fipppa note 7 at 94.

9. Samuel D. Warren and Louis D. Brandeis, Iha_Bight
Ip_Eziyagy, 4 Harv. L. Rev. 195 (1890).

10. 1d.
11. 1d. at 196.
12. Id. at 197.
13. Lance, in Bier, puppa note 7 at 94.
14. Warren and Brandeis, aupza note 9 at 198.
15. 1d. at 211.
16. 1d. at 214.
17. Lance, in Bier, apppa note 7 at 97.
41

42

18. Warren and Brandeis, aupxa note 9 at 220.
19. Lance, in Bier, appza note 7 at 104.
20. Id. at 93.

77 c. J. S. Rimming. §1 (1952); 62 An- Jur-
2D, ‘Pziyagy, §1 (1962,1987).

22. W. Page Keaton. et 81.. Wiggins—gains
Lap_pf__Ip;t§, 5th ed., (St. Paul, Minn.: West Publishing
Company, 1984), 851; 62 Am. Jur. 2D. Brim. §1 (1962, 1987).

23. Appppppiatipp involves the taking of something to
the exclusion of others; a conversion of property without a
right. ,Saa Ballentine’s Law Dictionary (3rd ed. 1969).

24. Keeton, et al., appza note 22 at 851-852.

25. Id. at 853-854.

26. Id. at 854.

27. .Id. at 855-856.

28. William L. Prosser, Eziyagy, 48 Calif. L. Rev.
392, (1960).

29. Keeton, et al., u ra note 22 at 856.
30. Id. at 856-857.
31. Id.

32. Id. (quoting Alfred Hill, Dafamatio op apd Privacy
' , 76 Colum. L. Rev. 1205 (1976).

33. Id. at 863.
34. Id. at 864.

35. Iima__yp__EiII, 385 U.S. 374, 387-388 (1967);
Keeton, et al., puppa note 22 at 865.

36. Prosser, gupza note 28 at 409.

37. Keeton, et al., aupza note 22 at 857 (footnotes
omitted).

38. Id. at 860.
39. Id.

43

40. 62 Am. Jur. 2D, Priyagy, §21 (1962, 1987).

41. Id.

42. Christians, Rotzoll, and Fackler, apppa note 4 at
110.

43. Keeton, et al., supra note 22 at 859-860.
44. 62 Am. Jur. 2D. 2112192 §21 (1962, 1987).

45. Keeton, et al., apppa note 22 at 861 (footnotes
omitted).

46. 62 Am. Jur. 2D, Privacy,'§21 (1962, 1987); 2 L.W.

Levy. ed.. Win (New
York: MacMillian Publishing Co., 1986), 802 (citing
Willie. 448 0.8. 555 (1980)).

47. 62 Am. Jur. 2D, 31111321. §23 (1962, 1987).
48. Id.; 2 Levy fippza note 46 at 802.

49. Keeton, et al., appta note 22 at 863 (citing Q9;

Who. 420 U.S. 469 (1975)); 2
Lequfiupza note 46 at 802.

50- WM” 420 U.S. at 469; 62 Am-
Jur. 2D, E;iyapy_ §23 (1962, 1987).

- 51. Keeton, et al., appza note 22 at 859; Christians,
Rotzoll, and Fackler, aupxa note 4 at 123.

52. Christians, Rotzoll, and Fackler, auppa note 4 at
123.

53. Fried, ”Privacy [A Moral Analysis)" in Ferdinand
David Schoenan. ed. . WW
An_Antthpgy (Cambridge: Press Syndicate of the University
of Cambridge, 1984), 209-210.

CHAPTER 4
AURAL AND VISUAL MEDIA AND THE COURTS:
RELEVANT COURT DECISIONS

The issue of aural and visual media access to court
proceedings was first addressed in the 19305. Bruno
Hauptmann was on trial for the kidnapping and murder of
Charles Lindbergh’s son. The press acted irresponsibly,
reporting inflammatory information and unsubstantiated
details, while having access to most of the courtroom.
Hauptmann did not receive a trial by jury, but rather a
trial by news media.1

In 1937, the American Bar Association House of
Delegates adopted Judicial Canon 35, which stated that all
photographic and broadcast coverage of courtroom proceedings
should be prohibited.2 The issue of aural and visual media
access to courtrooms did not arise again until the 19605
with the full development of the television medium. The
first case heard by the Supreme Court concerned the first
and sixth amendments -- a free press versus a fair trial.

Wilber Rideau had been apprehended in Louisiana for
bank robbery, kidnapping, and murder. While in jail a
"moving picture film with a soundtrack“ of the interrogation
was made between the defendant and the sheriff, during which

Rideau confessed to the three crimes.3 The film was

44

45

broadcast three times over a three day period, causing the
defense attorney to seek a change of venue.‘ The request
for change of venue was denied, and Rideau was soon con-
victed and sentenced to death.

On appeal to the Supreme Court it was held that due
to the circumstances surrounding the trial a refusal for
change of venue was a denial of due process. Justice
Stewart said,

Under the Constitution’s guarantee of

due process, a person accused of committing

a crime is vouchsafed basic minimal rights.

Among these are the right to counsel, the

right to plead not guilty, and the right to

be tried in a courtroom presided over by a

judge. Yet in this case the people of

Calcasieu Parrish saw and heard, not once

but three times, a "trial" of Rideau in a

jail, presided over by a sheriff, where

their was no lawyer to advise Rideau of

his right to stand mute.5

The Rideau decision became a precedent for a 1965
Supreme Court case which concerned the actual presence of
television and still cameras and sound equipment in a
courtroom. Billy Sol Estes was charged for mail fraud and
conspiracy. Newspaper photographers were permitted in the
courtroom, and television and radio stations carried the
hearings live.6

The Court found that Estes had been denied due

process because of the media exposure his trial received.7

The Court majority said the media cannot rely on the sixth

46

amendment’s public trial provision, since that clause was
intended for the benefit of the accused.8 Nor could the
media argue that the first amendment extended a right to
aural and visual coverage from a courtroom, and refusal to
permit this privilege discriminated between the different
media:
All are entitled to the same rights as

the general public. The news reporter is

not permitted to bring his typewriter or

printing press. When the advances in these

arts permit reporting by printing press or

by television without their present hazards

to a fair trial we will have another case.9

Although no confession was broadcast as in the
Bideap case, this earlier Court decision was applied to
Eataa because of the minute electronic scrutiny and char-
acterization brought about by the media.10 The Court also
commented that the media would choose only to cover the most
notorious cases visually and aurally, thus causing the
public to believe these trials were more extraordinary than
others.11

The Justices also addressed the problems that aural
and visual coverage of trial witnesses could cause. Justice
Clark wrote,

The impact upon a witness of the

knowledge that he is being viewed by a vast

audience is simply incalculable. Some may

be demoralized and frightened, some cocky

and given to overstatement; memories may
falter, as with anyone speaking publicly,

47

and accuracy of statement may be severely

undermined. Embarrassment may impede the

search for the truth, as may a natural

tendency toward overdramatization.

Furthermore, inquisitive strangers and

“cranks“ might approach witnesses on the

street with jibes, advice or demands for

explanation of testimony.13
Justice Clark commented that witnesses could return home to
see or hear themselves or other witnesses on television or
on the radio even though a judge may have instructed them to
avoid the media. This exposure could cause the witness to
reshape their own testimony when called to testify.13

Justice Warren, in his concurring remarks, refuted
the argument that televised trials could educate the public.
Warren said that an attempt to use a trial as an educational
tool would draw attention away from the real purpose of the
trial process and damage the court system’s integrity.14

The 19705 did not see conflicts between the courts
and audio/visual media coverage since the vast majority of
courtrooms were not open to these extended forms of media,
even for educational purposes. However, the media were
still having to defend their first amendment rights; but the
conflict turned to free press versus right to privacy.

In 1972, the father of a deceased rape victim
brought charges against Cox Broadcasting Corporation for
invasion of privacy. Mr. Cohn alleged that his privacy had

been invaded when the broadcast company defied a Georgia

48

statute, by revealing the identity of the victim during
television coverage of the accused rapists.15 The Supreme
Court found in favor of the media entity, stating that the
Georgia statute making it a misdemeanor to publish or
broadcast the name or identity of a rape victim violated the
first and fourteenth amendments.16

The Court also announced that the interest of
privacy fades when the obtained information is from a public
record. Justice White’s opinion for the Court stated that
privacy rights do exist:

There is a zone of privacy surrounding

every individual, a zone within which the

State may protect him from intrusion by the

press, with all its attendant publicity.

Indeed, the central thesis of the root

article by Warren and Brandeis . . . . was

that the press was overstepping its

prerogatives by publishing essentially

private information and that there should

be a remedy for the alleged abuses.17
However, the Court added, since the state placed the
information on official court records, the public interest,
not the individual right of privacy, was to be served.18
Thus, it was concluded that there was no liability since the
defendant merely further publicized information that was
already public.

The Court observed that not all individuals have
the opportunity to witness first-hand the workings of the

government; citizens must rely on the press to address the

49

governmental activities. In particular, the Court said a
“function of the press serves to guarantee the fairness of
trials and to bring to bear the beneficial effects of public
scrutiny upon the administration of justice.19 The Court
said that if privacy interests in judicial proceedings are
to be protected it is up to the states to devise a method
which avoids public documentation or other exposure of
private information.20 The Court commented that reliance
must also be placed on the judgement of those who decide
what to broadcast or print.21

In 1980, the question concerning the right of the
press and public to attend criminal trials was brought
before the Supreme Court (Richmond Nawfipapara v. Vipginia,
448 U.S. 555 (1980). After the fourth trial of a murder
defendant began (the first was reversed on appeal, the
following two retrials resulted in mistrials) the defense
council requested that the court proceedings be closed to
the public to avoid inappropriate discussion of information
presented during the trial.22 A motion was granted to
exclude the press and public.

Chief Justice Burger stated, in the Court’s opinion,
the first amendment, as well as the fourteenth amendment,
prohibits the government from. denying freedom of the press

and the right of people to peaceably assemble.33 The Court

50

referred to Gannett Co. v DePas u le, 443 U.S. 368 (1979)
when commenting that the sixth amendment guaranteed the
accused a pphIig trial, not a ppiyata trial even if desired
by the defendant.34 However, the Court cautioned that the
first amendment right allowing the press and public to
attend civil and criminal trials was not absolute. Justice
Stewart said,

Just as a legislature may impose
reasonable time, place and manner
restrictions upon the exercise of First
Amendment freedoms, so may a trial judge
impose reasonable limitations upon the
unrestricted occupation of a courtroom by
representatives of the press and members of
the public.25
During the 19705 attitudes changed toward aural and

visual coverage of trial proceedings. By the end of 1979,
almost half of the states opened their courts to cameras
(still and/or television) and audio equipment.33 This
Change occurred because the media had proved to be respon-
sible, telecasting equipment improved, and closed-circuit
cameras used for educational purposes proved to be
worthwhile. Each state devised their own set of flexible
guidelines to be followed by the press. Typical guidelines
included: the trial judge had final authority in
determining whether or not the aural and visual media would

have access to a trial; if witnesses or the defendant

objected to being photographed or recorded the request would

51

be honored by the media; and the number and position of
necessary media equipment would be limited.27

Prior to 1980, the Supreme Court had based cases
involving aural and visual media on how the press as papple
affected court proceedings. However, in 1981, the question
of whether or not the phyaigal presence of aural and visual
media denied a person a fair trial reached the Court.
Chandiappyp_EIpzida, 449 U.S. 560 (1981) was the landmark
case that determined if states could provide for radio,
television, and still photographic coverage of trial
proceedings.

In 1977, Florida began a one year experiment
allowing audio and video coverage of courtroom proceedings.
At the end of the year the Florida Supreme Court conducted a
survey of attorneys, witnesses, jurors, and court personnel
on their perceptions of the audio and visual coverage. The
court concluded from the survey that it was important for
citizens to see the court system in progress if the public
were to accept and understand court decisions.20 Canon
3A(7) of the Florida Code of Judicial Conduct was rewritten
to permit aural and visual media coverage of judicial
proceedings. It was the presiding judge’s responsibility to
enforce guidelines that would assure the accused the

fundamental right of a fair trial.

52

The defendants in andler v. Florida were two
Florida police-officers who were arrested for burglary. The
trial gained a great deal of media attention because law
enforcers had committed a crime. _ The presiding judge
permitted the court proceedings to be covered by the
television media and newspaper photographers.

Relying on ,Eata§_yp__1aga§, the defendants appealed
their conviction, arguing that televised criminal trials
were a denial of due process. However, Chief Justice Burger
and the Supreme Court said Eataa did not announce a con-
stitutional rule that all photographic or broadcast coverage
of criminal trials was a denial of due process.29 Burger
went on to say that instances where a jury is impaired in
making an impartial decision of guilt or innocence of a
defendant could not justify a constitutional ban on broad-

cast coverage:

It [Estes v. Iamaa] does not stand as

an absolute ban on state experimentation

with an evolving technology, which, in

terms of mass communication, was in its

relative infancy in 1964, and is, even now,

in a state of continuing change)0

The Supreme Court did reflect on potential conse-
quences of aural and visual coverage of trial proceedings.
The Court emphasized that public attention is aroused not
only by the nature of the crime, but also by the manner in

which the event is reported:

53

Selection of which trials, or parts of

trials to broadcast will inevitably be made

not by judges but by the media, and will be

governed by such factors as the nature of

the crime and the status and position of

the accused -- or of the victim; the

effect may be to titillate rather than to

educate and inform.’1

The Chandler decision was a victory for the media in
that it determined aural and visual coverage were allowed 50
long as the state approved. However, Chandler did not
announce absolute access to all courts by all media-types.
Access is determined first by each state and then, if
allowed, by the judge of each individual trial. This
provision was reemphasized in Combined Communications Corp.
v. Einesilver, 672 F.2d 818 (1982). Television station KBTV
sought writ of mandamus32 requiring a federal judge to allow
television broadcast coverage of proceedings in a federal
courthouse. KBTV argued that their ability to report the
news as outlined in the first amendment had been injured.

The court ruled that KBTV had not been injured
because no interest protected by the Constitution or a
statute was violated. Reference was made to both.£§t§§ and
fihgppgzfi_x&__fl§xg§ll, 384 U.S. 333, (1966), stating that a
reporter’s constitutional rights are no greater in a
courtroom than the public’s, and the courtroom premises are

subject to the control of the court.33 It was stressed that

the first amendment did not guarantee a constitutional right

54

to televise in a courtroom, and restrictions may be placed
on the media to protect the proper administration of

justice.34 The reporter was not denied access; the news

 

reporter was still free to attend the proceedings, take
notes, and report the information obtained.

In 1982, a case involving the right of free press
and right of privacy went before the Supreme Court; Clgbg
Newspaper Co. v. Superior Court. etc., 45? U.S. 596 (1982)
concerned Section 16A of Chapter 278 of the Massachusetts
General Law which required trial judges to exclude the press
and general public from court proceedings during testimony
of minor sex victims.35 The Massachusetts provision was
designed to encourage young sexual abuse victims to report
the crime; "once they have come forward, the statute is
designed to preserve their ability to testify by protecting
them from undue psychological harm at trial."36

The Court admitted that there have been times when
portions of trials have been closed to the public when
victims of sexual assaults were involved; however, the
’unbroken tradition’ is to have open criminal trials.37
Justice Brennan wrote,

the right of access to criminal trials

places a particularly significant role in

the functioning of the judicial process and

the government as a whole. Public scrutiny

of a criminal trial enhances the quality

and safeguards the integrity of the

factfinding process, with benefits to both
the defendant and to society as a whole.38

55

In order to close a trial the state's justification must be
a ”weighty one . . . necessitated by a compelling govern-
mental interest, and is narrowly tailored to serve that
interest.“39

The Court agreed that the psychological and physical
well-being of a minor is important, but this could not
justify the mandatory closure rule. It was suggested that
trial courts determine on a case-by-case basis whether a
court proceeding should be closed to protect a minor.40
Suggested factors to be weighed when deciding to open or
close a trial were the minor’s age, psychological maturity
and understanding, the nature of the crime, the desires of
the victim, and the interests of the parents and rela-
tives.‘1 Justice Brennan and the Court concluded:

Surely it cannot be suggested that

minor victims of sex crimes are the only

crime victims who, because of publicity

attendant to criminal trials, are reluctant

to come forward and testify. The State’s

argument based on this interest therefore

proves too much, and runs contrary to the
very foundation of the right of access

recognized in W: namely.
“that a presumption of openness inheres in
the very nature of a criminal trial and
our system of justice.43

A case very similar to ng_Bzgaan§tipg was brought

before a Florida court of appeals in 1983. However, in Cge

MW. 436 So.2d 328
(1985) the victim herself was suing for damages after her

56

name and trial testimony had been televised, even though she
had asked the prosecuting attorney that broadcast coverage
not be permitted. The rape victim sued the television
station for intensional invasion of privacy and infliction
of emotional distress, charging that a Florida statute had
been violated by broadcasting the victim’s identity.43

Before the trial began the rape victim.was assured
by the prosecutor that her name and face would not be
displayed or photographed. However, during the proceedings
a television news team videotaped the trial. Later that
evening the station ran a video of the trial, which featured
the victims testimony, while the newscaster identified the
victim by name.“

The appellee relied on C9;__B;gad§asting Corp. v.
Cohn when asking that the case be dismissed.‘5 The televis-

 

ion station argued that the Florida statute did not apply in
this case because, as ruled in Cox Broadcastin Co ., the
identity of the victim was obtained through a public trial,
where the court did not supress the victim’s name from the
court records. The court ruled in the station’s favor, and
dismissed the case. An appeals court affirmed the trial
courts decision, citing three reasons”8 there was no
indication that the television station obtained the informa-

tion in a improper manner; though the state made a promise

57

to the rape victim, measures were never taken to prevent the
broadcasting of her name or picture; the Florida statute,
which the victim claimed the station violated, was meant to
protect citizens when the information had not yet been made
public.

Although the appellate court affirmed the lower
courts decision, favoring the media, it did so reluctantly:

We deplore the lack of sensitivity to
the rights of others that is sometimes
displayed by such unfettered exercise of
First Amendment rights . . . those rights
should not be arbitrarily exercised when
unnecessary and detrimental to rights of
others.‘7

The court went on to say that the television station showed
little concern for the rights of the victim:

Prior to this trial, appellant was simply
an ordinary citizen; she lacked fame and
promience, the nature of which might make
the publication of her name and visual
image newsworthy, but she had the unhappy
circumstance of becoming a victim of a
crime. The publication added little or
nothing to the sordid and unhappy story;
yet that brief little-or-nothing addition
may well affect appellant’s well-being for
years to come.“

However, the court also announced its displeasure with the
state:

We cannot resist the opportunity to
chastise the state somewhat for not having
sought a protective order regarding
cameras in the courtroom or other

58

proper steps to support its alleged

assurance to appellant that her name and

photograph would not be published!9

The court concluded that because the decision in
ng__Brgadgasting prohibits the balancing of privacy right
and first amendment rights it remains up to the publisher or
news director to determine what is newsworthy. "Therefore,
we believe that in the future it would behoove the media to

engage in their own balancing test with an eye to avoiding

harm such as may have occurred here.“5°

ENDNOTES

1. Trial by News Media is the process by which the
news media in reporting an investigation of a person on
trial leads its audience to act as judge and jury in
determining guilt, liability or innocence before the person

is tried in a judicial forum. See Black’s Law Dictionary
(Abridged 5th ed. 1983).

2. Don R. Pember, Mass Media Lag (USA: Wm. Brown
Company Publishers, 1981), 343 (citing A.B.A. Rep 1135
(1937)). In 1952 Canon 35 was amended to include television
also. Canon 35 was reaffirmed in 1972 when the Code of
Judicial Ethics replaced the Canons of Judicial Ethics.

3. Rideau v= Louisiana, 373 U.S. 723, 727 (1963).

4. 1g; Yale Kamisar, William Lockhard, and Jesse H.
Choper, Constitutional Rights :de Liberties: pCases apd
flatggiélp. 20d. ed., (St. Paul, Minn: West Publishing 00.,
1967), 311; Kenneth S. Dovel, ed., Mass Media andmIbe
Supreme Court (New York: Hasting House Publications, 1982),
419.

5. Rideau, 373 U.S. at 726-727; Kamisar, Lockhard,
and Choper, supra note 4 at 311; Dovel, u ra note 4 at 419.

6. Estes v. Texas, 381 U.S. 532, 536 (1965); Kamisar,
Lockhard, and Choper, supra note 4 at 314.

7. Estep. 381 U.S. at 535.
8. 1d. at 536.
9. 1g. at 540.

10. 1g. at 577-578 (stating that "The petitioner was
subjected to characterization and minute scrutiny to such an
extent that at one point the photographers were found
attempting to picture the page of the paper from which he
was reading while sitting at the council table").

11. 1g. at 571 (stating that ”The alleged perpetrator
of the sensational murder, the fallen idol, or some other
person, who like the petitioner, has attracted the public
interest would find his trial turned into a vehicle for
television. Yet these are the very persons who encounter
the greatest difficulty in securing an impartial trial, even
without the presence of television").

12. 1g. at 547; Kamisar, Lockhard, and Choper, supp;
note 4 at 315-316.

59

13.

14.
note 4 at

15.
L.W. Levy
(New York:
16.
17.
18.
19.
20.
21.

22.
(1980).

23.
24.
25.
26.
27.
28.
29.
30.
31.

32.
fipg Words

33.
F.2d 818,

34.

35.
0.8. 596.

36.

60

Estes, 381 U.S. at 547.

lg. at 575; Kamisar, Lockhard, and Choper, supra
317.

Cox Broagcaflipg v. Cohn, 420 U.S. 469 (1975); 3

ed., Epgzglopggia pf The American Constitution
MacMillian Publishing Co.,-1986), 1457.

C9; Brpadcastipg, 420 U.S. at 476.
. at 487.

 

. at 492.

at 496.

lpalfalfalar:

SO

ighmond Newspapers v. Virginia, 448 U.S. 555, 559

at 580.

that

. at 600.
Pember, suprg note 2 at 324.
l_.

G.

Chgndler v. Floridg, 449 U.S. 563, 565 (1981)-
lg. at 570; Dovel, u ra note 4 at 429.
Chapglpr, 449 U.S. at 573-574.

lg. at 580.

flrit of pppggpps is a command by order of a court.
and Phrases "Mandamus".

Compineg Coppppigatipns Cogp. v. Fipesilvgr, 672
821 (1982).

E:

Clpp§_flgp§29p§r Co. v. Superior Court. etc., 457
600 (1982).

lg.

61

37. lg. at 601.

38. lg. at 606.

39. lg. at 606-607.
40. lg. at 600.

41. lg.

42. lg. at 610.

 

 

43. Doe v. Sgpgsotg -- BrgdentongElorida Television,
436 So.2d 328 (Fla.App.2 Dist. 1983).

44. lg. at 329.

45. lg.

46. lg. at 330.

47. lg.

48. lg. at 331.

49. lg.

50. lg. at 332.

CHAPTER 5
EXTENDED MEDIA IN THE COURTROOM: OPINIONS AND RESEARCH

When debating extended media coverage of court
proceedings and the trial participants, advocates offer a
variety of arguments in support of courtrooms being open.
Constitutional guarantees, educational benefits, and
research studies are presented as reasons for allowing aural
and/or visual coverage of trial witnesses. Those who oppose
aural and visual coverage suggest similar reasons for not

allowing the extended media in.

THE MEDIA

As' expected, journalists feel newspapers and
broadcast stations should be allowed to publish what they
choose. Timothy Dyk, legal counsel for CBS, Inc., said the
first amendment guarantees the right to publish, allowing
the press the right to “publish. whatever you can get your
hands on. . . . '1. The fair and public trial clause of the
sixth amendment is another constitutionally based argument
used by the press. James Ragsdale, editor of Ihg_§tapgapg;
Ting; urges that fill court proceedings be open to extended
media coverage:

62

63

A fair trial means a public, open
trial. Once we begin to place envelopes
around certain cases -- develop certain
protections -- I think we are running great
risks of heading down the road toward Star
Chamber proceedings.2

The media often refers to itself as a kind of
watchdog for the public. The first and sixth amendment
clauses allow the press this responsibility. Publicity of
trial proceedings, they suggest, insures that the government
will act in the best interest of the citizens. One news-
paper editor said,

Publicity provides an umbrella of
protection against government excesses or,

much worse in a criminal case, government

non-protection for individuals charged with

a crime. Publicity also engages the

powerful forces of the public’s perceptions
about criminal behavior and molds and

alters those perceptions. . . . Intensive
news media coverage does npt make the
judiciary’s job impossible. It makes it

more difficult, perhaps, but difficulty is

the key to our checks and balances system

of government.3

A number of open courtroom advocates in the media
industries do not see privacy interests of trial witnesses
to be as important as the public’s right to know. Ernie
Schultz, of the Radio-Television News Directors Association,
said the conflicting interests are not whether the news
media’s right to cover trials outweighs privacy rights of
trial participants, but whether or not trials will indeed

be truly public:

64

The news media are there in the place
of the public, and the public relies upon
the media to find out what happens in our
courtrooms. . . . We in the news media
assume that when individuals become
involved in a trial, they surrender some of
their privacy as a private citizen. They
are now involved in a state ordered and
state controlled process. That does not
mean they need to be harassed or abused.
It does mean that their role in the trial
must be fully reported so that the public
has full knowledge of what transpires at
the trial.‘

Few also find valid the adversaries’ argument that
witnesses should have fourth amendment privacy protection.

Charles McCorkle Hauser, vice president and executive editor

of the Wain remarked:

there’s no way the fourth amendment can
protect the privacy of someone who is
thrust into the news. In the case of a
rape victim, that privacy is provided by
the decision of a newspaper and not through
any ”rights” of the individual. That may
be old-fashioned male chauvinism or evolve
from a pedestal syndrome or something else.
But it also raises some serious questions
about why the accused should have his name
published and the accuser be given
anonymity.5

Journalists admit that publicity may adversely
effect witnesses. However, an individual’s privacy is
generally considered secondary to first and sixth amendment
concerns.8 The opinions of the media tend to suggest that
this ”invasion” of privacy is

a very small price to pay for the trust and
confidence which we now have in our

65

judicial system, largely because the
public has access to the judicial process
and therefore is reassured as to its
integrity.7

Some believe pp privacy interests should be considered for
witnesses. One news director said,

If there is anything chilling regarding
privacy, it probably takes place when that
private person thinks of having to go on
the stand and to swear that he or she will
tell the truth.3

The assistant national editor for The Detrplp_fl§p§ adds,

 

"most people with a mania for secrecy strike me as rogues
and scoundrels deserving all the attention we can give
them.9 However, other newspersons do feel that in some
instances privacy interests of witnesses should be con-
sidered. Thomas Griesdorn, general manager of WXYZ-TV? in
Detroit, is concerned about over-sensationalism and in~
dividual right to privacy. Griesdorn said,

The first order of business in the court is
justice under the law, and witnesses are an
essential and often fragile part of that
effort. Viewers who miss a bit of tes-
timony can read about it -- some respon-
sibility for education in this matter,
after all, falls on the citizen.10

ABC Law Correspondent, Tim O’Brien reasoned,

It is said that everything secret
degenerates, even the administration of
justice -- that sunlight is the best of all
disinfectants. But increasingly people are
asking whether justice may be suffering
from excessive sunlight and warning that
too much sunlight might jeopardize the

66

delicate balance between free press and
fair trial.11 '

Another frequently cited argument by the press for
allowing complete visual and aural coverage of trial
proceedings is the educational value. A petition submitted
to the Judicial Conference of the United States by a number
of media organizations stated that a majority of citizens
are ignorant about the judicial system’s functions. The
petition revealed that seventy-seven percent of the public
are not at all familiar with any federal court, let alone
the Supreme Court, and twenty-five percent of the peOple
believe court decisions are politically oriented.12 The
petitioners said,

The public is unable to adequately assess

the strengths and weaknesses of the present

system and is unable to participate

meaningfully in the continuing debate about

substantive legal issues and judicial
administration. Since most people cannot

gain the needed understanding by attending

court proceedings, they must rely on the

press -- both print and electronic. . . .

Greater public awareness of the courts

could lead to a better understanding of

their workings and to a more informed

public debate on substantive law issues and

judicial administration.

It is believed that if people understand the
workings of the courts then the judicial system, in turn,

will have to be more accountable for its actions. Ernie

Schultz said,

67

If trials are fully covered, the results
will achieve a higher level of justice and
the public for whom.the courts operate will
have a greater degree of confidence in
those courts.la

John Tune. editor of the W819.
suggested that televised proceedings will allow the public

to see that the image of courts portrayed on television
programs is unrealistic:

Judges and the court system have a bad
image, and I think it would help the court
system’s image if people could see how it
works. Most people have never set foot in
a courtroom and have only seen it on TV.14

However, George Gerbner, Dean of the Annenberg School of
Communications, is not as certain about the assumed benefits
of televised proceedings. When discussing how television
stations will cover trials, Gerbner said,

The problem is that opaque reality of
the courtrooms is less illuminating of the
judicial process than is translucent
fiction. One must go behind the scenes to
see how things really work. Surface
appearances are more likely to conceal than
to reveal how the judicial system
operates.15

Gerbner also does not believe a televised trial will give a
more accurate portrayal of the judicial system than a
fictional televised court case.

Selected courtrooms will become program

originating locations, transporting the

sights and sounds of real courtrooms into

millions of homes conditioned to weekly
rituals of courtroom and crime drama.

68

Trials will be picked and edited to fit

that dramatic ritual. . . . The integrity

and independence of judicial proceedings

serve to protect the accused from both

arbitrary power and public prejudice. The

purpose of open trials is to help assure

observance of those protections, not to

entertain or even to educate.16

Often it is not the legal constraints which force a
reporter to act in a certain way, but rather it is the
ethical behavior that influences how an event will be
handled by the media. In 1924, Nelson Crawford was the
first to suggest that objectivity in news reporting should
be a journalism ethic, and in 1954, Louis Lyons, curator of
the Nieman Fellowship Program at Harvard, said objectivity
as an ethic was the "ultimate discipline of journalism.“17
However, it was not until 1973 that a Code of Ethics was
adopted by a professional journalism society; though only a
voluntary code and directed primarily to its members, the
Society of Professional Journalists, Sigma Delta Chi (SDX),
devised a code of ethics that was “intended to preserve the
bond of mutual trust and respect between American jour-
nalists and the American people."10

SDX’s Code of Ethics states that it is a jour-
nalist’s responsibility to inform the masses:

The purpose of distributing news and

enlightened opinion is to serve the general
welfare. Journalists who use their

69

professional status as representatives of
the public for selfish or other unworthy
motives violate a high trust.19
The Code proclaims that journalists have an ethical respon-
sibility to serve the public interest. "despite obstacles,"
and assure that “the public’s business is conducted in
public and that public records are open to public inspec-
tion.'3° Appropriate fair play when reporting news is
outlined in the Code:21
1. The news media should not communicate
unofficial charges affecting reputa-
tion or moral character without giving

the accused a chance to reply.

2. The news media must guard against
invading a person’s right to privacy.

3. The media should not pander to morbid
curiosity about details of vice and
crime.
Reporters and editors are also cautioned that headlines
should reflect the contents of an article accurately, and
photographs and telecasts "give an accurate picture of an
event and not highlight a minor incident out of context.“32
Although the Code (and others enacted by various
media organizations) was meant to assist in serving the
public interest while enhancing the image of the press, many

journalists react negatively to codes of ethics. One

tongue-in-cheek statement suggests that ethics in journalism

changes

70

the original intent of news reporting. Theodore L.

Glasser, of the University of Minnesota, said,

John Merrill feels that ethics can actually hurt objective
reporting.
right to know, according to Merrill,

public

Objective reporting has transformed
journalism into something 'more technical
than intellectual; it has turned the art
of story-telling into the technique of
report writing.23

all the information gathered because of ethical

considerations.

Charles

not ethics, should be the primary concern.

Take the case of the reporter who

decided . . . not to print the name of a
rape victim. The report is flawed. It is
incomplete. Verified and very pertinent
information is ppzpppglz omitted from the
story. It is a partial report, even in a
journalistic sense.34

McCorkle Hauser feels that constitutional rights,

editor said,

However,

Local television may hype a story while the
newspaper plays it down. Each medium has a
first amendment right to be responsible or
irresponsible as it wishes.25

some journalists do consider ethics in their news-

making decisions. John Tune said,

it’ just like a judge -- you’ve got to be
able to balance, decide what’s right and

Though most journalists believe in the public’s
most do not tell the

The executive

71

wrong, and weigh all the factors, and make
a responsible decision. You’ve got to have
a conscious.35

Jeff Greenfield, political and media analyst for the ABC
Network, stressed that although it is- the job of the news
industry to deliver news, good and bad, reporters and news
directors should still consider the emotional impact a story
might have.

There is no way that a news organization
can refuse to air material just because it
unsettles the subject. But there is every
reason, even in the rushed hothouse
atmosphere of a nightly broadcast, for us
to pause for a moment . . . to consider
what the consequences may be . . . to act,
in other words, as a morally mature member
of society and to act out of reason, and
not out of reflex.37

Thomas Griesdorn concluded,
We in the electronic media will now be
charged with proving our ability to truly
represent our viewers responsibly .with

microphone and camera. We are in charge of
our own destiny.33

THE JUDICIAL SYSTEM

It is apparent by the number of states that have
opened their courtrooms to extended media coverage since the
Changlgz decision that even the judicial profession, though
cautious, sees a value in televising trials. Since the 1981

landmark case forty-five states have approved some form of

72

visual and/or aural coverage of court proceedings.29
Michigan is one of the most recent states that has
decided to open courtrooms to the extended media.3° Just as
many of the legal professionals 'from other states have
commented in the past, Michigan judges and lawyers believe
camera coverage of trials can be beneficial if precautions
and rules are adhered to.31 Judge Michael C. Harrison, an
initiator of opening Michigan courts, said he does not see a
distinction in the abilities of covering court proceedings
by the print or aural/visual media.32 The executive
director of the Michigan Prosecuting Attorney’s Association,
James Shonkwiler, has been involved in trials that have been
videotaped for educational purposes. In his opinion, most
people quickly forget cameras are present in the courtroom;
”it’s not the camera," Shonkwiler said, “it’s what you do
with the picture" that should be the concern.33 However,
Raymond Buffmyer, a criminal lawyer who at one time was a
prosecuting attorney for Eaton County, opposes extended
media coverage of courts:
If the general public wants to see a
trial, the courtrooms are open to anyone
who wants to observe. All they have to do
is go and watch the proceedings on the date
and place scheduled. . . . The freedom of
the press in my opinion is not compromised

by attempts to preserve the dignity of the
courtroom setting.34

73

The views held by Buffmyer are voiced by many who
are cautious about allowing aural and visual coverage of
trials, particularly of witnesses. Senator Strom Thurmond,
former Chairman of the Senate Committee on the Judiciary,
said "we must not let our haste to preserve the rights of
the criminal swerve us from our duty to protect the rights
of victims as well."35 A study conducted by the U.S.
Department of Justice’s Office of Justice Programs and
Office for Victims of Crime found that fear of intimidation
and invasion of privacy are the main reasons that some
victims and witnesses refuse to cooperate in judicial
proceedings.39 The district attorney during the infamous
‘New Bedford rape case37 contended,

We cannot get justice without having

witnesses in the courtroom, and if our

system is discouraging them from coming, if

it is driving them away, then something is

wrong with our system. . . . It is time to

redirect the debate to focus on the impact

of the news coverage itself.33

The opinions of individuals directly involved in
the judicial system differ from those of journalists, with
regards to the public’s right to know. Although many
attorneys and judges agree that the extended media has a
right to cover (most) trials, including (most) witnesses,
they do not agree with the media’s philosophy that the

public has a right to know all that transpires during court

74

proceedings.39

Robert Weiss, the Genesee County (Michigan) Pros-
ecuting Attorney, is one who feels the media and public has
a right to receive all information: I

I believe that the balance between personal

privacy rights of victims at trials and the

right of a free press should be (and is)

tipped in favor of media access. This is

so because the integrity of the criminal

justice system is of overriding impor-

tance.40
However, other Michigan attorneys feel there are exceptions
to the public’s right to know. Michael Franck, executive
director of the Michigan Bar Association, feels that though
the public has a right to know ultimately what goes on in
'courtrooms, the right cannot be translated into the right to
know at the exact moment what is happening in a courtroom.“1
James Shonkwiler believes the rights that should be con-
sidered are those of the litigants; Shonkwiler also said,

I don’t think the public has a right to

follow the details of a litigation. They

have a right to know how matters come out,

which are publically charged [if a criminal

matter].‘a
According to Shonkwiler, the public has a right to know such
things as the charges being assessed by the prosecutor,
under what conditions the charges are being made, the
factual situations and policies which apply to the decision

to charge or not charge a person, and what happens to the

75

charges in the judicial system and sentences passed.43

A few legal professionals feel extended media
coverage of trials will only increase the amount and type of
information made available to the public. Michigan attorney
Raymond Buff-yer reasoned,

Turning trials into media events does not

enhance our judicial system. Must the

media dominate and orchestrate every aspect

of our lives in the name of “the public’s

right to know". . . . 44
Ronald Pina said,

I do not dispute the right of the press to

swarm through a victim’s neighborhood,

devouring bits of information combed

haphazardly from sources good and bad. But

is this patchwork of detail regarding the

crime victhms lifestyle really

necessary. . . . Is there not some point at

which the providing of information ptppfi
and the pgpgpxing begins?‘5

Criminal defense attorney Herald Price Fahringer remarked
that journalists have always been permitted ‘to report the
minute details and events of a trial, and excluding extended
media coverage of trials would not infringe upon the
public’s right to know.43

Some opponents of audio and visual coverage of
witnesses feel that the right to privacy should be a basis
for excluding the extended media from trial proceedings.
However, it has been generally held among legal profes-

sionals that privacy rights do not exist when concerning a

76

public matter.47 Robert Weiss said the fourth amendment
guarantees cannot be expanded to cover witnesses who object
to extended media coverage:

The questioning of a witness is not a

search or seizure under the commonly

accepted definitions of those words. Even

if it were, such a “search“ would not be

"unreasonable“. To the contrary, the

public has a right to every man’s (or

woman’s) evidence.u
Ronald Pina believes that there is a lack of balance
between the right to know and the right to privacy; "the
first amendment speaks in terms of absolute, at times,“ Pina
said, "if you listen to the press. . . . "4‘

Because witnesses have very few rights when a part
of a trial there is little that can be done if a witness
feels he or she has been exploited by extended media
coverage. Judge Harrison said if the extended media is
granted permission to cover a trial then there can be no
issue regarding emotional trauma as a result of audio and/or
visual coverage. Harrison added that it would be difficult
to determine if trauma was indeed the result of extended
media coverage, or the result of testifying in front of a
jury, going through cross examination, or having to tell the
court (and public) how the witness became a part of the
trial proceedings.so Judge Carolyn Stell commented that it

must be remembered that in a criminal case it is the pepplg

77

pf_the_§tatp, not the victim, who initiates the lawsuit,
and as such the victim’s rights as a witness are limited
"because it has to be society’s interests in enforcing the
criminal law. If you let the victim. alone determine the
interest it may well be to the detriment of the society."51

It would also be difficult for an individual to sue
for invasion of privacy through.misappropriation. According
to James Shonkwiler, once the decision has been made to
permit extended media coverage there is no limit to the uses
of the material; however, if the state feels that the ex-
tended media is using courtroom testimony simply to sensa-
tionalize and increase their audience then extended media
coverage could be reduced or eliminated.52 Donald Martin
feels that it may be possible to sue on the grounds of
exploitation of the testimony if the information is repeat-
edly aired so that it becomes a detriment to the witness.53

Individuals in the legal profession seem less likely
to believe that the extended media want to cover trials
solely for the public’s interest. Defense attorney Gerry
Spence said,

I think the issue is money. I think the

issue is ultimately what is entertainment,

what trial would be a good commodity that

we could sell to the public, and that what

is sold to the public isn’t, as the good

judge says, the sort of solemn, uninter-
esting arguments before appellate courts.54

78

Herald Fahringer said that in order for television news
programs to survive rating wars the broadcasters attempt to
capture the largest audience possible by concentrating on
the sensational; “most TV journalists lust for the spec-
tacular,“ Fahringer said, “They don’t want ’talking heads’
but search for the melodramatic.“55

Law professionals believe that aural and visual
coverage of trials could be educational if the material is
used responsibly. Since most people do not attend trials,
extended media coverage would enable the public to learn how
the court system works, as opposed to viewing only the
television programs which often portray the justice system
incorrectly.56 Videotaped and/or recorded trials could also
serve an archival function, allowing future generations to
“witness“ important state and federal cases.57 In addition,
broadcasting witness testimony could educate, people about
crimes, such as rape and date rape, and how witnesses/vic-
tims of these and similar cases are often treated on the
witness stand by judges and attorneys.53

However, attorneys and judges warn that though the
media may argue all portions of a trial has educational
value, the segments must be edited and aired objectively in
order for the public to fully understand the workings of the

judicial system. Michael Franck believes television news

79

directors must allow enough time to show portions from both
sides of a case in order not to distort and imbalance the
trial proceeding.59

Ronald Pina argues that reporters who cover trials
aurally and/or visually need to be experienced in courtroom
procedures themselves before they can be expected to help
educate the public through news reports. Pina says the
ppint media usually sends court reporters who are ex-
perienced with the court system; however,

the electronic media sends in new people

who do not know anything about the system.

They are coming in, they are photographing

a situation, they do not know the rules of

evidence, they do not know what can and

cannot be used, what is a voir dire

hearing, out of the sight of the jury,

which is supposed to be considered, and yet

they run that.“0
According to James Shonkwiler, the arguments in favor of
educational benefits is probably not as true as the public
simply being curious about people "being put through periods
of agony in their lives and trying to see how they hold up
or don’t hold up.“1

Nobody is going to turn on their television

to watch a televised trial because they

feel it makes them a better citizen and to

find out how the court really works. But,

they’re going to turn it on because they

heard about a particular trial in progress

and it has juicy aspects to it that are
stimulating or interesting to them.‘2

80

VICTIM/WITNESS ADVOCATES

Advocacy groups that work for victim and witness
rights are not as r'xious to see extended media coverage of
court proceedings. The groups are particularly concerned
about state courts that allow audio and/or visual coverage
of sexual assault victims. Few positive results are thought
to come about by photographing or broadcasting rape trials.

Lynn Marks, executive director of Women Organized
Against Rape, in Philadelphia, feels the only good extended
coverage of a sexual assault trial can do is to show the
public that rape is a societal problem, not isolated cases
between individuals.

That is important because for years rape

and the sexual abuse of children were not

talked about publicly and they did not

receive media attention. Thus, victims

felt very isolated and alone. So even

though publicity can be difficult for

individual victims, in the long run, I

think it can be beneficial.63
However, Marks warns that extended media coverage of
witnesses in rape cases can only be beneficial if the media
acts in a responsible manner; coverage should not sensation-
alize the case, resulting in the public getting “vicarious

thrills", or polarize the issue so that only one side is

presented.“

81

A primary concern of victim/witness advocates is
the “invasion of privacy” that witnesses experience when
aural and visual coverage of trials is permitted. The
Changlgz decision focused on the guarantee of a fair trial
for the defendant. The right to privacy for defendants and
witnesses was not considered. Keith Boone, an assistant
professor in the Public Service Studies Program at Oberlin
College, suggests that the desire for privacy is not only
being let alone, or separating one’s self from society.

It is not merely freedom fzpp something or

someone. Rather, privacy is the legitimate

assertion of ownership and control over

personal and spiritual goods -- over what

the ancients often called the “soul“.35

Many believe that wanting to remain private does
not mean that a witness is trying to hide something, only
that some witnesses who have already been traumatized in
some way wish to keep intimate facts to themselves.66 One
rape victim commented,

Victims need protection, not exploitation.

The victim has been manipulated, invaded

and controlled by a criminal. The media

does not have the right to assault the

victim.again. .As surely as an assailant is

held responsible for this invasion of a

woman’s life, the press must also be

responsible.57

Boone argues that extended coverage of court proceedings may

damage the reputation, dignity, and integrity of some

82

witnesses:

they are coerced into surrendering to the
gaze of the public at large what is
properly their “own". As a result, they
lose ownership and control over what may be
extremely personal, sacrosanct and not for
public consumption.33

Victim/witness advocates also do not see aural and
visual trial coverage being as educational to the public as
journalists and judicial professionals believe. Advocates
argue that a thirty or sixty second news report which only
publicizes particulars about a rape case serves only to
satisfy the public’s curiosity, not to dispel some of the
myths surrounding sexual offense cases.6° Jennifer Barr
contends that coverage of trials will not adequately educate
the public about the seriousness of violent crimes or the
workings of the judicial system, because the public cannot
be exposed to all activities that go on during trials, and
because the media is so selective in choosing which trials
to cover:

The testimony in the courtroom is only the

tip of the iceberg of what she has endured.

The camera doesn’t catch the victim having

to wait in a waiting room with the witness

for the defense or when the victim is

verbally abused by the defendant’s mother

when they meet in the hallway . .

Rapes that get heavy media coverage are the

sensational crimes, the most violent, the

‘most dramatic. This glorification of crime

does not educate the public about the
extent of the crime, the effect of the

83

crime. It does not deal with the issue of

rape. The grizzly, titillating details,

the details that tend to identify and

further injure the victim, do not serve the

public good. The portrait these selected

stories paint is a dangerously distorted

one.7° .
Lynn Marks also cautions that if extended coverage is not
done in a responsible manner the attempt to educate the
public may work in a negative way. Marks said that public-
ity of certain trials can encourage imitation acts: after
viewing portions of the New Bedford rape case a boy raped a
young girl on a pool table; and in 1978, after NBC televised
a.movie about a girl sexually assaulted by a group of boys
with a mop handle the act was imitated in San Francisco,
where a nine year old girl was the victim."1

Finally, supporters of victim/witness rights fear
that aural and/or visual coverage of trials will deter
people from reporting crimes, or from cooperating in the
judicial process.72 Victims of sexual assault worry not
only that’ extended media coverage will publicize intimate
details of the assault, but also that publicity may en-
courage the accused, or family and acquaintances of the
accused, to threaten the'victhm again.73 Victims also fear
that people -- such as parents, neighbors, co~workers, and
relatives -- who had not known about the assault will learn

about it, and all of the intimate details, if extended

84

media is permitted to cover rape trials.74

According to Carolyn Stewart Dyer and Nancy:
Hauserman, the greatest fear among sexual assault victims
when microphones are allowed in courtrOoms is that the name
of the victim will be broadcast; however, there seems to be
more concern from victims about having cameras allowed in
courtrooms. In today’s society a television broadcast
(audio and video coverage) will reach a much larger audience
and identify the witness more precisely than will just an
audio broadcast, newspaper publication, or traditional news
report (no camera coverage) of the trial proceedings."5 Jo
Beaudry, a victim/witness service coordinator for the
District Attorney’s Office in Milwaukee County, said,

I have . . . seen prosecutors struggling

with the possibility of losing or dismiss-

ing serious criminal cases because an

essential witness becomes uncooperative

solely because of the publicity they

received or because of their fear of

publicity. The terrible cost to our

citizens and our communities of cases lost

as a result of victim/witness publicity
cannot be calculated.73

RESEARCH

Considering the number of states that allow extended
media coverage of court proceedings, few studies have been

done to analyze its impact on trial participants or the

85

general public. The majority of research that has been done
was conducted during the experimental phases of state court
coverage, and a few were conducted in simulated court-

rooms.77 The research. findings that scholars rely on when
discussing extended coverage of trials are also becoming
dated. For instance, Susanna Barber, in her book Eggs

 

Dghgpg, relied on nineteen studies for discussion; of the

nineteen studies, thirteen were conducted before 1980 (six
of which were conducted over a one year period in
Florida).7’ A comparative study of two similar trials in
Indiana has also been done79; however, the research was done
in 1977, in a state that does not allow extended media
coverage of the courts, except for official court purposes.
Of the nineteen pieces of research literature
analyzed by Susanna Barber, nine studies questioned wit-
nesses directly about the affects of extended media being
present in the courtroom during their testimony. Six of the
studies also questioned jurors, five questioned attorneys,
and eight questioned judges about the affects on witnesses.
There were mixed feelings among the witnesses questioned
about cameras and/or recorders being allowed to cover
trials. According to Barber, reactions ranged from com-

pletely unaffected to refusal to testify for fear of

86

personal safety.°° Though three-fourths of the respondents
said still cameras did not inhibit their testimony, and two-
thirds replied the same about television cameras, forty
percent said still camera coverage, and thirty-three percent
said television coverage was up} fair to witnesses.’1
Attorneys who were a part of case studies indicated
that camera coverage had no effect on witness testimony,
while those who responded to surveys tended to be less
positive about extended media coverage. Between forty and
fifty percent of those who responded to surveys immediately
following a trial said television and still cameras in-
hibited witness testimony and was unfair; mail survey
responses showed that fifty percent thought television
cameras had adverse affects, while sixty-six percent
thought still cameras had no adverse affects on witnesses)2
Barber found that judges overall responded ’favorably to
extended media coverage of witnesses. Generally, judges
found no hesitations or inhibitions from witnesses who
testified; they also reported that witnesses tended to
ignore the cameras.33 Jurors responded that no noticeable
distractions or changes in behavior occurred in witnesses
who testified in the presence of audio and video record-

ers.04

87

During the state experiments, according to Barber,
over two-thirds of the trials covered were in criminal
court; however, some studies reported that proceedings such
as sentencings, arraignments, zoning disputes, and an
affirmative action case were also covered.05 Few trials
were broadcast in detail, and even less were broadcast from
gavel to gavel. Most trials were reported by the broadcast
industry in the traditional news manner -- a short snippit
of video with a reporter doing a voice-over; the footage
tended to focus on the defendant or the attorneys’ opening
and closing statements)6 Judges and attorneys responded
in the surveys that they do not believe this type of
coverage is an accurate portrayal of the case, trial
participants, or court system.07

One of the most disturbing aspects of

televised trials, particularly to attorneys

and judges, is that broadcasters are

generally interested in covering only

notorious and sordid types of cases, such

as murder, rape, bribery, and corruption.

A major concern is that, by concentrating

on these kinds of issues (in order to

maintain high newscast ratings), the

viewing public receives a distorted picture

of what takes place in the nation’s

courtrooms on a daily basis. In reality,

many proceedings are tedious civil and

public interest disputes, domestic cases,

summary judgments, and legal arguments in

appeals courts.00

However, Barber said that the nineteen pieces of independent

88

research reached the similar conclusion that extended media
coverage of judicial proceedings does not have a behavioral
affect on trial participants in general:

It appears that camera coverage of trials

(even sensational criminal cases) does not

necessarily influence the majority of trial

participants to behave in ways that are

noticeably different from behavior in

nontelevised trials. This is not to say

that many trial participants do not have

mixed or negative gtjippggp toward camera

coverage, only that the bulk of empirical

research conducted to date shows little

correlation between the presence

of cameras at trials and perceived prejudi-

cial hphggigz on the part of jurors,

witnesses, judges, or attorneys.09

One of the studies that Barber analyzed was origi-
nally part of lp pe Pppitipp of Epgt-flewswegk Stgtippg,
Elpzig§l_lpgl, 370 So. 2d 764 (Fla. 1979). This survey is
of great importance as it was referred to by the Supreme
Court in the landmark Chandler v. Flppida decision. The
Florida Survey Results indicated that the “presence of the
electronic media in the courtroom had little effect upon the
respondents perception of the judiciary or the dignity of
the proceedings.”0 Awareness of the extended media being
present during trials by survey respondents averaged between
"slightly” and "moderately"; all respondents indicated that
they were made to feel “slightly“ self-conscious by having

television and still cameras present. Respondents also

reported that the presence of cameras made them feel “only

89

slightly" nervous or more attentive."1

For witnesses specifically, the presence of cameras
made them feel "just slightly“ more responsible for their
actions. Witnesses were 'slightly“- distracted by the
extended media coverage, and fear of harm after appearing on
a broadcast ranged from “not at all“ to ”slightly“.
Attorneys and court personal responded that extended media
coverage made witnesses flamboyant “not at all" to “slight-

ly . Attorneys and court personal also felt that witnesses
were “slightly“ inhibited by the presence of extended
media.“2

The second survey that was a part of the ln_p§

 

was
conducted by the Florida Conference of Circuit Judges, and
was administered only to judges. Two-thirds (96 of 146) of
the respondents had some experience with extended media

coverage of trial proceedings. Thirty-six of these judges
responded positively to aural and visual coverage, twenty-
nine responded negatively, and thirty-seven had neutral
feelings.u Between ninety and ninety-five percent of the
judges felt that camera coverage had not affected the
performance of jurors, attorneys, or witnesses.H However,
when summarizing the survey findings, Circuit Judge Arthur

J. Franza said,

90

From the whole, I think Courts do not

object to the use of cameras in the

courtroom now that they have had some

experience. However, in certain areas,

some judges have strong opinions.

Paramount being . . . that confidential or

undercover agents who are witnesses,

victims of crimes, family especially

children of the convicted, and juvenile

proceedings not be photographed.”5

In 1977, the opportunity arose to study the effects
of extended media coverage of trial participants. Two men,
who were accused of murdering a millionairess, were granted
separate trials in separate courts. A judge, whose court-
room was equipped with videotape equipment for recording
trials for court purposes, agreed to let the media patch
into the court’s system in order to record portions of the
trial.96 Analysis of the two trials included empirical
research: the two men were accused of identical crimes;
separate trials were granted; many of the same witnesses and
testimony were presented in both cases; public interest was
equal; and the same reporters covered the two trials.
However, the research could not be controlled since the two
trials had different defendants, counsel, and jurors. The
data collected and analyzed consisted of: a telephone poll
of public opinions within four days of each trial; a
questionnaire completed by both juries; calculation of the

total newshole devoted to the two trials by the two local

91

newspapers; the official court transcript and taped trial;
an aircheck of the local news each night; a telephone
interview with the jurors from the televised trial; and
interviews with the presiding judges, prosecutors, counsel,
television news editors, and newspaper city editors.97

When asked whether they learned more or less about
the two trials then from news reports of trials in the past,
forty-three percent of the public responded that they
learned more when viewing the televised trial reports, while
thirty-two percent of those who saw only reports of the
nontelevised trial reported learning more than from news
reports of past court proceedings; however, twenty-four
percent who saw the televised court reports and twenty-two
percent who only saw the traditional news reports responded
that they learned about the same as from news coverage of
trials in the past.93 A majority of both the televised
trial (sixty—two percent) and nontelevised (fifty-eight
percent) opinion sample said that extended media coverage of
trials would not deny the defendant a fair trial.“9

Jurors of both the televised and nontelevised trials
indicated that the activities of reporters distracted them
to some extent. However, the jurors presiding during the
televised trial found the reporters nope distracting.1°°

Only four of the total fourteen jurors recognized the names

92

of the newspaper reporters who covered the trials, but
twelve of the jurors could identify at least one of the
television reporters who covered the trials.101 Dalton
Lancaster concluded that this finding suggests that it is
the presence of television reporters, not the television
equipment, that indicates to the trial participants that
the trial has gained media attention.102 Jurors also
responded that the presence of cameras during trials would
be distracting to some extent.103

The television reports were longer and newspaper
reports were more prominently displayed during the first
trial, which was covered by the extended media. The
television news reports decreased from 2:42 to 1:55, while
the mean column inches of newspaper coverage dropped from
sixteen to twelve.104 Lancaster suggested that these
declines may have been the result of the public having more
curiosity during the first trial, and that five months later
when the second trial began much of the information was "old
news". Also, the importance of other local and world events
may have played a factor in the length of news coverage
given to the two trials. However, as Lancaster pointed
out, the television reports and newspaper reports indeed may
have been longer during the trial open to the extended media

simply because of the camera access, and thus the local

93

television stations and newspapers sensationalized the
coverage.105

Witnesses were not surveyed in this study. However,
at least one witness was reluctant to testify during the
second trial before learning that those proceedings would
pp; be televised.106

James Hoyt conducted a controlled experiment in 1977
to analyze the simulated pressures of being a witness. The
thirty-six participants were told the fifteen-minute
sessions were to study the "effectiveness of some different
types of media presentations."107 The subjects were shown a
film, then asked specific questions about the content. When
answering the questions participants were in one of three
settings: in front of a television camera, which the
participants were told would tape the session and be viewed
by a large number of people; told that a hidden camera would
be recording the question/answer session; or in a setting
where no camera was present.108

The study revealed that there was no significant
difference in the verbal behavior of the participants who
answered questions in the presence of a camera or not. When
the camera was hidden, its presence "seemed to be ir-
relevant.”1°9 Those who answered questions directly in

front of the camera responded with longer sentences.

94

However, Hoyt reported that the longer answers did not
contain additional incorrect information, but rather more
correct and relevant information.110

A survey done in Minnesota. questioned newspaper
reporters and legal professionals about the role of the
press and the court system.111 When asked if the press
should confine its reports primarily to the facts that
unfold in the public court records and proceedings, judges
and attorneys agreed that they should, but reporters
disagreed. However, all three groups strongly agreed that
court actions should be reported as objectively and as
humanly as possible. Judges and attorneys agreed, while the
press strongly agreed to the statement that the press should
attempt to educate the public about the judicial process.
The newspaper reporters also strongly agreed vthat the press
shOuld play the role of a watchdog; attorneys agreed with
that statement, but judges were undecided (“neither agree
nor disagree“). With regards to the importance of the press
interpreting and/or analyzing court action for readers, both
attorneys and judges were undecided, and the reporters
agreed with the statement.1 1 a

George Gerbner has done a great deal of research on
the impact of television on the viewer. Gerbner said that

television has “reshaped politics, changed the nature of

95

sports and business, transformed family life and the
socialization of children, and affected public security and
the enforcement of laws.“113 According to Gerbner, each
week a typical television viewer sees forty-three law
enforcers, six lawyers, and three judges on dramatic
programs. Nearly all of the television legal professionals
work on criminal cases, usually involving murder, and bring
the criminal to justice. Research also shows that televi-
sion programs rarely cover the legal process, such as
arraignments, indictments, jury deliberations, and plea
bargaining.114 Studies done at the Annenberg School of
Communications suggest that people who rely on television
are more likely than others to blame the court system for
crime, and approve harsher punishments, warrantless search-
es, illegally obtained evidence, and other violations of
due process.115 When comparing these findings to the
possibility of more court proceedings being covered by the
extended media, Gerbner said,

These trends take on added significance

when we contemplate the appeal of “real

life“ trials using courtrooms as program

origination locations, selected and edited

to the specifications of already existing

programming of proven audience and ratings

drawing power. The stakes become very high

indeed. How can (and why should) broad-

casters resist the pressures of the

marketplace and the rewards of higher
ratings?116

ENDNOTES

1. Interview with Timothy Dyk, attorney, Wilmer,
Cutler and Pickering, in Washington, D.C. (May 17, 1987).

2 . Mo ' .9216..r_age_<2f__Ra_ne___L_ai leg—Begins
Bgfore phg Spbcomm. op Czipinal Lg! of th§_Senate 09pm. on

 

 

the Jugicigzl. 98th Cong., 2nd Sess. 28 (1984) (statement
of James M. Ragsdale, editor, The Standard-Times, Bedford,
Mesa) [hereinafter W1; Me 15.9
letter from Tony Villasana, news director, WMAZ-TV13,
Macon, Georgia, to the author (September .18, 1987) (dis-
cussing free press - right to privacy); letter from Thomas
C. Griesdorn, general manager, WXYZ-TV7, Detroit, Michigan,
to the author (October 19, 1987) (discussing free press-
right to privacy); letter from Tom Johnson, publisher and
chief executive officer, Los Angeles Times, to the author,

(October 28, 1987) (discussing free press - right to
privacy).
3. lpppgt pf Mpgig Covepage, spppg note 2 at 31-32

(statement of James M. Ragsdale).

4. Letter from Ernie Schultz, acting president,
Radio-Television News Directors Assoc., Inc., Washington,
D.C., to the author (Nov. 3, 1986) (discussing free press-
right to privacy).

5. Letter from Charles McCorkle Hauser, vice presi-
dent and executive editor, The Providence Journal—Bulletin,
Providence Rhode Island, to the author (Nov. 5, 1986)
(discussing free press - right to privacy).

6. Letter from Tom Johnson ppppg note 2; lppggt of
Magig_Cpxg;§g§, sgppg note 2 at 80 (statement of Ed Godfrey,
president, Radio-Television News Directors Association).

7. Letter from Tom Johnson, ppppg note 2.

8. Letter from Tony Villasana, puprg note 2.

96

97

9. Letter from Lawrence T. Sullivan, assistant
national editor, The Detroit News, Detroit, Michigan, to the
author (October 5, 1987) (discussing free press ~ right to
privacy. In reference to growing up in a small town.
Sullivan also favors public disclosure of such things as
individual income tax returns).

10. Letter from Thomas Griesdorn, pgng note 2; Spg
.plgp WDIV (Post Newsweek Stations, Michigan, Inc.), John J.
Ronayne, III, The Associated Press, Michigan News Exchange,
Mid-Michigan Professional Chapter of The Society of Profes-
sional Journalists, Sigma Delta Chi, The Reporters Committee
for Freedom of the Press, and The Society of Professional
Journalists, Sigma Delta Chi (Detroit Chapter), Comments pp
Ezppp§§g_Agpinistrgtive Qrder Providing FoplExtendgd Media
Coverage of- Judicial Proceedings 1987 [hereinafter WDIV, et
al.] ("a party may for articulable reasons feel that
extended media coverage will affect the proceedings in an
adverse and identifiable manner"); interview with John Tune,
editor, Traverse City Record Eagle, Traverse City, Mich.
(July 25, 1987) ("If the judge is given enough power to make
certain safeguards to insure the safety of witnesses, then I
think that can be accomplished).

 

11. Yiewppint: Courts, Camepas, guppipgz (ABC
television broadcast, May 24, 1984) (published transcript).

12. Accrediting Council on Education in Journalism and
Mass Communications, American Broadcasting Companies, Inc.,
American Newspaper Publishers Association, American Society
of Newspaper Editors, Associated Press, Association for
Education in Journalism and Mass Communications, CBS, Inc.,
Community Television of South Florida, Inc., C-SPAN, Gannett
Companies, Inc., Media Access Project, The Miami Herald
Publishing Company, Mutual Broadcasting System, Inc.,
National Association of Broadcasters, National Broadcasting
Company, Inc., National Cable Television Association, Inc.,
National Press Photographers Association, National Public
Radio, The New York Times Company, Post-Newsweek Stations,
Inc., Public Broadcasting Service, Radio-Television News
Directors Association, The Reporters Committee for Freedom
of the Press, Society of Professional Journalists, Sigma
Delta Chi, The Times Mirror Company, Turner Broadcasting
System, Inc., Cable News Network, United Press International
Company, The Washington Post, Egtitipp to the deicigl
Cppfgpgpce e Unit t s Concernipg Zisual and gupgl
Cpggggge pf Eederal Court Procggglpgs by the Electronic_§pg
Pript Bragg, March 1983,14 (citing Yankelovich, Skelly, and
White, Inc. , Th Public Image of Courts; Highlights of a

National §m_euf_the_§enmlhhli&_ludsean_lla_wd
Cpnpgpitz_heag§p§, prepared by the National Center for State

98

Courts (May 1978)) [hereinafter Accrediting Council on
Education in Journalism and Mass Communications, at al.].

13. Letter from Ernie Schultz, guppg note 4.

14. Interview with John Tune, §upra note 10. figp also
letter from Thomas Griesdorn,quppg note 2 (quoting the Ann
Arbor News, editorial. ’Anything that would make the courts
more understandable to the public and make the judicial
process user-friendly would be all to the good. The people
need to branch of government is also an open book’); Norman

Davis, Iglgxisipp 1p Cg; Cpuzts, 64 Judicature 86 (1980).

15. George Gerbner, Irigl by Iglgvipipn: grp fie at
th§_Point Qf_No Rptupp? 63 Judicature 420 (1980); §§§_§l§p
George Gerbner in Susana Barber, Eggs Camepas in thg
Cppgtgppp: AAFree Preps - ngr Trigl Debate (Norwood, N.J.:
Ablex Publishing Corp., 1987), xv.

16. George Gerbner, gpppg note 15 at 420-421.

17. Theordore L. Glasser, Objegtivit _§nd the Idgplpgy
pf New , lecture delivered at “Ethics in Journalism”
seminar, co-sponsored by Augsburg College and the University
of Minnesota’s Journalism Center, March 3-4, 1983.

18. Society of Professional Journalists, Sigma Delta
Chi, Code of Ethics, reprinted in Bruce M. Swain, Reporters’
Ethigp (Ames, Iowa: The Iowa State University Press, 1978),
116.

19. lg. at 114.

20. lg. at 115.
21. Ida
22. ILL.

23. Theodore Glasser, guprg note 17 at 10-11.

99

24. John C. Merrill, ood Re ortin Can be a Solutigp
t9_§thipp_£;pplgp§, 42 Journalism Educator 28 (1987).

25. Letter from Charles McCorkle Hauser, pupra note 5.

26. Interview with John Tune, gupra note 10.

27. Jeff Greenfield, political and media analyst for
ABC News and Good Morning America, in Tommy Thomason and
Anantha Babbili, eds., Cgime Vigtips apg Ihp Eggs Mgdia a
synopsis of a national symposium sponsored by the Texas
Christian University Department of Journalism and the
Gannett Foundation, November 18, 1986, n.d.

28. Letter from Thomas Griesdorn, pgpgg note 2 (in
reference to Michigan courtrooms opening up to the extended
media).

29. Eppp_§tates_§tart Igsts gith_C§meras. Recordersrip
Cpgrts; Iotal up to 45 States, 11 The News Media and the Law
42-44 (Fall 1987) (Indiana, Mississippi, Missouri, South
Carolina, and South Dakota do not permit extended media
coverage of trial proceedings).

30. Beginning February 1, 1988 Michigan will begin a
one year experiment in all Michigan courts except for the
juvenile division, allowing oral and visual coverage of
trial proceedings.

31. Interview with Judge Michael G. Harrison, 30th Jud
Circuit, Lansing, Mich (October 14, 1987); interview with
Judge Carolyn Stell, 30th Jud Circuit, Lansing, Mich
(October 19, 1987); interview with Donald E. Martin, Ingham
County Prosecuting Attorney, Lansing, Mich (October 14,
1987); interview with James Shonkwiler, executive director,
Michigan Prosecuting Attorney’s Association (October 23,
1987); interview with Michael Franck, executive director,
Michigan Bar Association, Lansing, Mich (October 22, 1987);
letter from Robert Weiss, prosecuting attorney, Genessee
County, Flint, Mich, to the author (August 27, 1987)
(discussing free press - right to privacy); letter from
John D. O’Hair, prosecuting attorney, Wayne County, Detroit,
Mich, to the author (August 11, 1987) (discussing free
press - right to privacy).

100

32. Interview with Judge Michael G. Harrison, supra
note 31.

33. Interview with James Shonkwiler, ppppg note 31;
(§p§_glpp Barber, pgppg, note 16 at 74 (In nineteen indepen-
dent studies, judges responded that witnesses tended to
ignore cameras when present in the courtroom); ln pg
Pgtition of Post-nggpeek Statlons, Elorida, ngl, 370 So.
2d 764, 768 (Fla. 1979) (witnesses who were surveyed said
they were "slightly" distracted when cameras were present
during trial proceedings. Attorneys and court personal
responded that witnesses were “slightly“ inhibited by the
presence of cameras); James Hoyt, Cpgrtroom Coverage: The
Effects of Being Telgvised 21 Journal of Broadcasting 490
(1977) (Hoyt found that subjects who answered questions in
the presence of a television camera responded with longer
sentences, which contained more correct information, than
did other subjects).

 

 

 

34. Letter from Raymond G. Buffmyer, attorney,
Charlotte, Mich, to the author (October 6, 1987) (discussing
free press - right to privacy).

35. Impact of Media Coverage, supra note 2 at 3
(statement of Senator Strom Thurmond).

36. Office of Justice Programs and Office for Victims
of Crime, U.S. Department of Justice, in Cooperation with
Crime Victims Project, The National Association of Attorneys
General and Victim Witness Project, Criminal Justice
Section, The American Bar Association, Victims of Crime:

Proposedlflgdellewsl n (1986) .

37. This March 1984 rape case involved the multiple
rape of a woman in a New Bedford, Mass. bar. The trial
generated national attention, and was broadcast live by the
Cable News Network. .

38. lupagt pf Megia Covgrggp, gpppg note 2 at 8, 18
(statement of Ronald A. Pina, district attorney, Bristol

District, Mass.).

101

39. Letter from Robert Weiss supra note 31; interview
with Donald E. Martin, supra note 31; interview with Michael
Franck, suppa note 31; interview with Judge Michael G.
Harrison, ggppg note 31.

40. Letter from Robert Weiss, ppppg note 31.

41. Interview with Michael Franck, pgppg note 31.
42. Interview with James Shonkwiler, ggppg note 31.
43. lg.

44. Letter from Raymond Buffmyer, §pppg note 34.

45. Impact of Medig Coverage, pupra note 2 at 19
(statement of Ronald A. Pina).

46. Television in the Courtroqplie- Liplted figmgfllgl

uM—u—ow

Vital Risks? 3 Communications and the Law 42 (1981).

 

- 47. Charlotte Carter, Iglgvision in the Courts, State
Court Journal 25 (1981). Photocopy 1987. §§§_glsp inter-
view with Judge Michael G. Harrison, supra note 31; inter-
view with Judge Carolyn Stell, gupra note 31; interview with
Michael Franck, ggpgg note 31.

48. Letter from Robert Weiss, gpppg note 31 (citing
U.S. x. Nigpp, 418 U.S. 683 (1974)).

49. lppggt of updia Coverage, ggppg note 2 at 4
(statement of Ronald A. Pina).

50. Interview with Judge Michael G. Harrison, ppppg
note 31.

51. Interview with Judge Carolyn Stell, supra note 31.

52. Interview with James Shonkwiler, gupra note 31.

102

53. Interview with Donald E. Martin, gpppg note 31.

54. e ' : Co r J ti e? (ABC
television broadcast May 24, 1984) (published transcript)
(statement of Gerry Spence, defense attorney).

 

55. Keith Boone, IV in 'thp Cogptroop: I§ Sopgthing
Bglpg_§pplpp__£;pp_flp2 9 Human Rights 41 (1981); interview

with Judge Michael G. Harrison, puppg note 31.

56. Interview with Judge Carolyn Stell, pppgg note 31;
letter from John D. O’Hair, pupra note 31; Lyle W.
Denniston, Ihe Repprter and thg Lg: (New York: Hasting
House, Publishers, 1980) xix.

57. Alan Dershowitz, "Burger Sees TV as Court’s Foe,"
Ihg Bostop Herald (Nov. 26, 1984). Photocopy 1987.

58. lppggt of Mpdia Coverggg, gupra note 2 at 14
(statement of Ronald A. Pina); interview with Judge Michael
G. Harrison, auprg note 31.

59. Interview with Michael Franck, gpppg note 31.

60. lppact of Media Coverggg, guprg note 2 at 10
(statement of Ronald A. Pina).

61. Interview with James Shonkwiler, pgppg note 31.
62. lg.

63. Ippgpt of Mggia Coverage, pupra note 2 at 62
(statement of Lynn Marks, executive director, Women

Organized Against Rape, Philadelphia, Pennsylvania).
64. .lg. at 63.

65. Boone, pgppg note 55 at 26 (footnotes omitted).

103

66. Interview with Anne Seymour, director of public
affairs, Sunny Von Bulow National Victim Advocacy Center,
Fort Worth, Texas, in Lansing, Mich (June 4, 1987); lppggp
of Mpgia Covprage, ppppg note 2 at 53 (statement of Jennifer
Barr, rape victim, rape crisis counselor); Boone, suprg note
55 at 26.

67. lpppct pf Mggig Cpxggpgg, supra note 2 at 53
(statement of Jennifer Barr).

68. Boone, guppg note 55 at 26.

69. Interview with Anne Seymour, supra note 66; lgpagt
of Mgdia Coveragg, §upra note 2 at 49 (statement of Ellen
Guyker, rape victim, Maryland).

 

70. Impact of .Mpéié Coverpgg, suppa note 2 at 58
(statement of Jennifer Barr).

71. lg. at 68 (statement of Lynn Marks).

72. Carolyn Stewart Dyer and Nancy R. Hauserman,
Exemptippnlpf ngpgl Assgult Victips fromelectronic_ng§
Coverage in Cou t, 1 Sexual Coercion and Assault 86 (1986);
Boone, pgppg note 55 at 27; lmpact oprggia Coverage, ggppa
note 2 at 64, 71, 87 (statement of Lynn Marks; statement of
Jo Beaudry, coordinator, Victim/Witness Services, Milwaukee
County, Wisconsin; statement of Cecily Robbins, executive
director, Rape Crisis Center, Washington, D.C.).

73. Stewart Dyer and Hauserman, puppg note 72 at 86.

74. lg.; Impgct of Media Covpragg, puprg note 2 at 87
(statement of Cecily Robbins).

75. Stewart Dyer and Hauserman, suppg note 72 at 88.

76. lppagt pf Megia Covgragg, gupra note 2 at 77
(statement of Jo Beaudry).

77. Barber, puppg note 15 at 19, 70-71; James Hoyt,
puppg note 33 at 487-495.

104

78. Susanna Barber, puppg note 15 at 70-71 (Barber is
an instructor in the Department of Mass Communication at
Emerson College).

79. Dalton Lancaster, Cgppras in the Courtgppp: A
W. Research Report No 14(Blooninston.

In.: School of Journalism, Center for New Communications,
Indiana University, 1984). Photocopy 1987.

80. Susanna Barber, gppgg note 15 at 74.

81. lg.

82. lg. at 75.

83. lg.

84. lg. at 74-75.

85. lg. at 80.
86. lg. at 81.
87. lg.

88. lg. at 80.

89. lg. at 87.

90. In re Epti n f s - ew k tations Fl rida,
lppl, 370 So. 2d at 768 (Fla. 1979).

91. lg.

92. lg. at 768-769.

93. lg. at 769.

105

94. lg. at 770.

95. lg.

96. Lancaster, gupra note 79 at 2 (Judge John B.
Wilson was forced to halt extended media coverage on the
last day of the trial after receiving a notice from
Indiana’s Supreme Court reminding judges that Canon 3A(7)
prohibited extended media coverage of trial proceedings.
Indiana to date still has a closed door policy for the aural
and visual media).

97. lg. at 3.

98. lg. at 4 (the forty~two percent and thirty-two
percent figures are the combined response totals for learned
"a little more" and "much more").

99. lg. at 5.

100. lg.
101. lg. at 6
102. lg.
103. lg.
104. lg. at 7
105. lg.
106. lg. at 8.

107. Hoyt, puppa note 33 at 490.

108. lg.

109. lg.

106

110. lg.

111. Robert E. Drechsel, ngp Makipg ip thp Izipl
Cpuztp (New York: Longman, 1983) (A questionnaire was sent

to judges, attorneys, and court clerks, while newspaper
reporters were interviewed and asked the same questions.
The survey took place in early 1980. In 1983, Minnesota
opened the courts to extended media coverage on an ex-
perimental basis).

112. lg., 126-127 (Respondents rated the roles of the
press on a 5-point scale, ranging from ”strongly disagree“
to ”strongly agree". The median ratings were reported).

113. George Gerbner, puppg note 15 at 418.

114. George Gerbner, Introduction, in Barber, gupra
note 15 at xiii.

115. lg. at xiv.

116. lg.

CHAPTER 6
AURAL AND VISUAL COVERAGE IN COURTROOMS

The decision of whether or not to open state
courtrooms to extended media coverage usually is made by the
top state court or through state legislation. The Code of
Judicial Conduct or the court rules must be suspended or
amended in order to allow aural and visual media access. No
state has ever reversed its decision after allowing the
extended media in.1

By March 1988, forty-five states will permit
microphones and/or still and/or video cameras in the courts,
either on an experimental or permanent basis; nine states
will allow coverage of appeal courts only, while thirty~six
states will allow trial and appeal court coverage.2 In the
majority of states, prior consent or notice of the ppppt is
required before the extended media can cover a court
proceeding; the consent of the various trial participants
are not required by most of the states.3 According to a
1987 summary of state courts, compiled by the National
Center for State Courts, only Arkansas, Maryland, Minnesota,
and Pennsylvania required the consent of parties and
witnesses involved in trials; and only Alabama, Ohio,

Oklahoma, Tennessee, and Washington did not allow extended
107

108

media coverage of individuals who objected.‘|

Prior to 1988, of the states whose courts were open
to the extended media, only eighteen of the forty-three
provided outlined coverage exemptions for certain trial
participants.5 Juvenile proceedings (twelve states),
divorce (eleven states), and child custody (eleven states)
trials were the most frequently exempt proceedings; trade
secret hearings (eight states), sex crimes (eight states),
adoption (seven states), and motions to suppress (seven
states) were exempt in fewer states, as were police
informants who testified (six states), undercover agents
(six states), vior dire hearings (six states), and relocated
witnesses (five states). Rarely have states allowed
automatic exemption from extended media coverage for
probable cause proceedings (three states), motions to
dismiss (three states), minor witnesses (two states), and
witnesses in jeopardy of bodily harm (one state).6

There are great differences among the states with
regard to exemption rules. The discretion allowed by judges
varies, and includes such considerations as applicable legal
tests, burden of proof required, and the interests to be
considered.7 Exemption is usually approached in one of two
ways: requiring the individual to ggnsgnt before he/she may

be covered by cameras or microphones, or providing the

109

individual an opportunity to ghjggt to the extended media
coverage.8 The important difference in consent and
objection is that the former presumes that coverage will not
be granted unless the person to <be covered gives an
affirmative response hgfgzghapg, while the latter presumes
coverage is affizmgg unless an objection is filed by the
individual to be covered hgfpxg the proceedings begin.9
Consent rules range from all parties having to give written
consent, to the right of individuals to withhold consent to
deny coverage only of themselves. However, it is more
common among the states to request that individuals submit
reasons for ppjepting to extended media coverage before
exemption is granted.10

The consent requirement was found in only three of
the forty-three states (prior to 1988) which had adopted
rules for aural and visual coverage of trials, while seven
had included provisions permitting witnesses to withhold
consent to preclude coverage of him/herselfJ1 Post-
Newsweek station, WDIV-TV4, Detroit, and various media
association in comments submitted to the Michigan Supreme
Court regarding extended media coverage object to party
consent requirements:

As a practical matter, any experimental

program incorporating a consent requirement
will be no program at all. The experience

110

from other states indicates consent will

lead to a virtual absence of extended media

coverage.12
WDIV, et al. said that this belief is supported by the
number of states which have abandoned consent require-
ments.13 The problem with consent rules, according to WDIV,
et al., is that no attempt is made to discover uh: consent
is being withheld by a person.

A unilateral consent requirement .

places a very important decision in

entirely the wrong hands. It is in the

wrong hands because it is in the hands of

an individual who is, to say the least,

unlikely to consider any interests beyond

his or her own and who will invariably make

the decision based solely upon a deter-

mination of whether extended media coverage

is perceived as helping or hurting the one

making the decision.14
The media industries also oppose consent requirements
because a key witness can object to extended media coverage
of themselves, leaving the viewer with a skewed picture of
the trial; the public may receive incomplete information
about the. proceedings and be unable to comprehend the
outcome of the trial if key witnesses are not included in
the aural and/or visual media reports.15

A preferred method for determining exemption from
camera and microphone coverage is the two-pronged

“qualitative difference" test, which was first utilized in

Florida. Two determinations are made by the presiding judge

111

about the qualitative differences between traditional news
reporting (written or spoken word) and extended media
coverage (print and broadcast pictures, and/or aural
testimony broadcast over radio or television):16

1. Whether extended media coverage of a
particular person would have an adverse
effect, and its impact would be quali-
tatively different from the impact on
the other individuals in the same
case.

2. Whether there would be a qualitative
difference in the adverse effect on an

individual between traditional news
reports and extended coverage news
reports.

In determining the vulnerability of witnesses, Florida
courts consider the likely effect aural and/or visual
coverage of the trial will have on the participant’s
willingness to cooperate with the judicial system; the
witness’ "subjective state of mind" and personal well-being
is not considered.17 If extended media coverage causes a
witness to refuse to testify, even if faced with contempt of
court, aural and/or visual coverage will be denied for that
witness. However, if the witness only indicates objection
and discomfort, yet agrees to testify in the presence of
extended media, then the individual will not be exempt from
aural and/or visual coverage.10 The relative viewing,
listening, and reading audience size is also not considered

when determining whether a trial will be open to the

112

extended media. Audience size is considered an irrelevant
and quantitative difference, not a qualitative difference,

as required by Florida courts.19

COURT PROCEEDINGS COVERED BY THE EXTENDED MEDIA

According to the media organizations who submitted a
petition to the Judicial Conference, requesting that federal
courts be open to microphone and camera coverage, a variety
of proceedings have been covered by the extended media
throughout the states. The petitioners said these types of
proceedings could be educational if covered properly:
criminal and civil trials involving misconduct of public
officials, overcrowding in city jails; welfare fraud; police
brutality; rights of mental patients committed to institu-
tions after being acquitted from criminal charges using the
insanity defense; constitutionality of state election laws;
and challenges to gambling, abortion, and drunk driving
statutes.2°

However, television and still ’cameras do manage to
also capture the drama of more titillating trials. For
example, a few select courts in Michigan opened their door
to camera and microphone coverage early to work out any
unexpected problems before the rest of the courts opened

'their door to the extended media in February 1988. The

113

first court proceeding that a Lansing television station
chose to photograph and record was the preliminary
examination of a man accused of stabbing an eight-month
pregnant woman to death. A local newscast set up the report
with a reporter doing a voice-over, updating the viewers on
the latest proceedings, while the camera focused on the
accused. The report then included the victim’s boyfriend
explaining to the court how he found the body, the physical
condition of the body, and the actions he took before the
police arrived. Comments made by the attorneys and judge
were not included in the news report. Donald Martin, Ingham
County Persecuting Attorney, said that Ingham County has
approximately seventeen judges, who have cases stacked up
throughout each day; and when the judges are not working on
criminal cases, they are hearing civil cases. Martin said
there is ample opportunity for the media to choose from a
variety of types of trials to cover that could educate the
public, however, the media seems to cover only the sensa-
tional cases.”1

Where is the press? When do they choose to

show up? What type of cases do they want?

They want the East Lansing rape case, they

want the murder case . . . they’re gonna

‘want the Basil Brown cases.22

Tony Villasana, news director of a Macon, Georgia

television station, remarked that witnesses do not seem

114

distracted by the presence of audio and video equipment.
However, the example Villasana used to illustrate his point
also illustrates the type of proceedings covered by
television stations:

On one occasion we experimented with the
court by turning the camera away from
pointing at the stand while a woman
testified against her former live-in-
boyfriend who was accused of killing her
daughter and than helping her dismember the

child. The court thought she would not
testify against him as was part of her plea
bargain arrangement. We complied with the

court until the court, after observing her

composure, gave us the 0k [sic] to swing

the camera slowly back to the stand to

videotape her testimony.23

Florida’s extended media have covered a number of
court proceedings. Most notably, cameras and microphones
covered the trials of convicted murderers Ted Bundy and John
Spinkelink, the divorce of Peter and Roxanne Pulitzer, and
the murder trial of Ronny Zamora, whose defense was that
violence on television drove him to his crime.24

Cable News Network has carried court proceedings
that some say have exploited the parties involved. CNN
provided coverage of the trial of Claus Von Bulow, who was
tried twice for allegedly attempting to kill his wife,
Martha “Sunny” Von Bulow, with overdose injections of
insulin.35 The libel suit against the Natipngl_£pguiz§r by

Carol Burnett, as well as the libel suit of Dr. Carl

115

Galloway against CBS’s CQ_flippp§§ were also carried by the
all-news network. CNN was denied permission to cover the
pre‘trial hearing involving the alleged sexual abuse of
children at a Los Angeles preschool;l the news station was
also denied permission to cover the General Westmoreland
libel case against CBS, because the proceedings were in a
federal, not a state court.

The trial that probably generated the most media
attention was the New Bedford Massachusetts rape case. In
1984, six men were tried for raping a woman on a pool table
in a New Bedford bar. The two cable systems owned by Colony
Communications, Inc. in the New Bedford-Fall River area
provided gavel-to-gavel coverage of the two trials.
Individual stations and the three major networks took pieces
of feed from the cable stations’ pool camera. However, CNN
chose to air full portions of the trial. The news network
averaged two to three hours of daily coverage, but increased
coverage to seven hours during the closing days of the
trial; in all, CNN ran thirty-five hours of live testimony,
and fifty-four hours of taped trial proceedings.26
According to Ronald Pina, the district attorney involved in
the case, the first trial was televised by CNN from 10:30
a.m. to 12:30 p.m., and the second trial aired from

1:30 p.m. to 5:00 p.mm; CNN also ran reruns of portions of

116

the trials at night.27 Pina believes this type of coverage
violates Obscenity laws.28

The two defendants practically got on the
stand and explicitly described their
activities . . . with the victim, and what
they went through, and their argument was
that it was consent, that all of these
other items occurred, A, B, C, D, and E,
oral sex, natural sex, if you want to call
it natural sex, whatever else occurred,
explicitly, step by step, and what was
done, and where, by the bar, by the pool
table, and explaining it in very basic
street language.29

The credibility and responsibility of the alleged
victim was questioned by the defense attorneys, and
broadcast to cable viewers:

e tt : You may very well say
sex is a private activity, and it very well
is. But just because John Cordeiro commits
it in Big Dan’s in front of several people
does not make him guilty of aggravated
rape. Your sense of propriety has nothing
to do with this case. 3°

Dpfep§g_gptngey: But remember this, that

woman have a responsibility by their words
and by their behavior to say no.31

Isn’t it fair to say
that whenever you don’t want something to
come up you just say "I don’t remember"?
Isn’t that true?33

Even if you’re willing
to take money from welfare, you don’t just
willy-nilly give the card out to other
women to achieve welfare, do you?33

117

The victim’s testimony was broadcast as well:

After the first one had gotten off, he came
around and grabbed my shoulders and then
the second one came around . . . . he came
around and got on top of me . . . . He had
intercourse with me.34 .

Arguments of the prosecuting attorney were also heard:

And they pushed her leg, and they pushed

her leg, until they could do what they

wanted to do and as a result they left

their own mark. It’s almost like a

fingerprint, but it’s a handprint which

shows in a dramatic fashion that there was

no consent.35
Radio talk shows provided listeners with the opportunity to
call in and express their opinions about the proceedings and
the victim. According to Pina, some listeners called in
saying the victim was a prostitute.36 Talk show hosts

themselves often expressed their opinions about the victim:

Do you know how much money she could be

making from this whole deal? . . . This
person has been on welfare, and new she’s
going to make thousandsll We’re talking
thousands of dollars, sir!! . . . She’s

going to be richer than me!37

To the dismay of victim advocates, the prosecutors,
and the presiding judge, the victim’s name and address were
broadcast live to the viewers and listeners. Newspapers,
‘wire services, and television stations that normally did
not identify rape victims suddenly began identifying this
victim since the cable station had inadvertently allowed the

information to be aired.38 Charles McCorkle Hauser, whose

118

newspaper usually did not identify victims, replied,

Since the name was going into living rooms

all over the area via the airwaves, it

seemed sort of stupid for us to "protect“

the 'victim by suppressing the name that

everybody knew. So we didn’t.39
Once the name and address were broadcast, "the race to
publish it was on" and “huge numbers of people arrived at
[the victim’s] doorstep . . ."40 The presiding judge
criticized the press for publishing and broadcasting the
information. Judge Young said the publication added nothing
to the public’s understanding of the case, and it did
nothing more than sell more newspapers and "encourage the
’voyeuristic aspect’ of the trial.”41

CNN Executive Producer Larry Lamotte said one reason
the network televised the trial was because the proceedings
were of public interest, "and we think the higher ratings
reflect that indeed there was interest.”42 I CNN even ran
promotional announcements: "Find out why opinion leaders
across the nation are watching this controversial courtroom
drama."3 James Ragsdale agreed the public was interested
in the trial and that “the numbers watching these trials
would embarrass producers of daytime TV soaps."44 Viewers
also agreed: “I love General Hospital, but I haven’t seen

it since the case began."5

Ronald Pina, and others do not believe the extended

119

media coverage of the New Bedford rape case was beneficial
to the public in the long run. Pina said that the public
formed an opinion about the proceedings when they had not
seen all aspects of the trials:

Many viewers in my own Bristol County and

throughout the world who watched or

listened to the Big Dan’s coverage came to

their own conclusions about the guilt or

innocence of the defendants. They did so

believing that they had watched the trials

from beginning to end, heard all the

evidence necessary, and reached their own

verdicts. This, of course, was simply not

true. People, who over a period of three

weeks hglieyeg that they watched the entire

trial did so in their living rooms where

they were subject to the normal distrac-

tions of telephones ringing, visitors call-

ing, children desiring attention, and

errands to run.‘5
Ellen Goodman, a syndicated columnist, feels the trial
became a national spectacle, and may deter women in the
future from reporting a rape for fear (of publicity.47
Colony Communications was dismayed to find, after speaking
with over seventy news organizations across the country, the
main reason media industries wanted to cover the trial was
not because of the merits of the case itself, but because
other news organizations were covering it; “it was a
sobering lesson on what makes news in this country.“‘0

However, members of the media believe the trial
leaverage provided many benefits. According to James

Ragsdale, editor of the W, the publicity

 

120

heightened male awareness about rape, and future rape
victims learned what to expect in court. The coverage may
have also caused hospitals, police, and prosecutors to
reevaluate their investigative practices. Ragsdale added
that public awareness can lead to precaution and pre-
ventative techniques, as well as enforcement, which will
lead to a reduction in crime.49 These benefits, Ragsdale
said, outweigh the negative aspects of the televised New
Bedford rape case:

There are times, as my mother used to tell

me, when I was a young boy, Senator, that

life is not fair. That this was a

sensational case proved to be of high

public interest, from coast to coast, was
outside anyone’s control, Senator.5°

FUTURE EXTENDED MEDIA COVERAGE OF COURT PROCEEDINGS

There are a number of ways that the audio and video
recordings of court proceedings can be used by the media.
Lawyers and judges in Michigan, for instance, hope that once
the state’s courts are open to the extended media the aural
and/or visual recordings will be used to educate the
public.51 Ingham County Prosecuting Attorney Donald Martin,
would like to see the media educate the public about the
different types and levels of state courts:

I think it would be good if they would take

a look at the court systems, and enlighten
the people as to “this is a circuit court,

121

these are the types of cases that are

heard,” or ”we’re going in today to look at

Judge Harrison’s courtroom.where there’s a

personal injury case going on. . . ."53
Judge Carolyn Stell hopes to see a television program which
illustrates how the judicial system works. Stell said,

Maybe the cable stations or PBS might

possibly videotape a whole trial, and

perhaps not show the whole trial but use it

to illustrate a panel discussion on the

judiciary system. What would be interest-

ing for people would be to see not that a

trial is boring, but the minutia of the

trial -- the very detailed questions and

answers, the very repetitive questions and

answers that go on. That would go a long

way in showing that it’s not like Perry

Mason. . . .“53
Michael Franck, executive director of the Michigan Bar
Association, would like the extended media to cover the
appellate courts, particularly the Michigan Supreme Court.
Many appeal cases would be of public interest. Appellate
hearings have the advantage of being one to two hours long,
which would allow a trial to be televised without stopping,
without interruptions, and in one day.54 Franck would also
like the tapes to be made available to law students and
others who might be interested in analyzing and evaluating
the trial proceedings.55

Unfortunately the footage from taped trials being
used ideally is unlikely. Most trials will only be covered

in order to pull out short bites of footage for the evening

122

news. Judge Michael Harrison said,

First of all, we have to recognize that
they can only afford to spend so much time
covering a trial and they’re not going to
cover every minute of it. I can’t see that
the press is going to get .involved in an
educational process of providing it to
school districts or anything of that nature
because that’s just not their business.53

How the public perceives and receives the coverage
of trials depends a lot on who decides what aspects of the
proceedings are important, how the information will be
used, and how it will be edited. James Shonkwiler,
executive director of the Michigan Prosecuting Attorney’s
Association, said,

The real cutting question is what drives

the critical decision making on the

issues. . . . Who’s going to have their

hands on the editing decisions? Is it

going to be the marketing manager who’s

trying to sell advertising, or is it going

to be the news director whose job -.- . is

based on a sense of public interest and

public benefit in terms of the content of

what they do?57
Shonkwiler said the media’s main concern is editing out the
hours of boring testimony and proceedings down to a few
dramatic moments; however, this can often present a
misleading picture to the public because of how the
'proceedings were edited.

How the media uses the material, how

accurate they are and how sensitive they
are in editing it and presenting an

123

accurate picture is ultimately going to

determine if this was a good idea or a bad

one.50
However, others argue that it is not necessary or a
requirement to provide full coverage of trials. The length
of the coverage will depend on the news value of the events
of the day’s court proceedings.59 The assistant national
editor of Ihg_ng§;pit_flgp§ concluded,

Even with an interesting trial, tele-

vision’s concept of "coverage,“ let’s face

it, is 10 seconds of live footage -- one

good quote and a few tears will do -- plus

20 seconds of chatter proudly placing the

station’s reporter on the scene. I cannot

see this as trampling upon anyones

rights.50

If the media continue to edit and control the flow
of information regarding a trial made available to the
public, then some precautions can be taken to insure that
the concerns of trial participants are considered. James
Ragsdale suggests the media continue using self restraints,
and not publicize the name or photograph of a rape victim--
even if other newspapers or broadcast stations do.61
Ragsdale and Ronald Pina also feel a fifteen second loop
should be used to bleep out sensitive material during live
broadcasts of trial proceedings.62 Additionally, Pina feels
that the burden discussed in Chgpglgz, regarding the

extended media having access to trials, should be reversed;

the burden would then be that a trial would normally be

124

closed to aural and visual coverage, unless there was an
overriding interest to open the court.63 Pina added that
the FCC should “tighten its deteriorating standards.“

Under current regulations angry, anonymous

voices are apparently permitted to call

talk shows and broadcast ethnic slurs and

almost any type of character assassina-

tion.u
Donald Martin and Anne Seymour argue that if a trial is
closed to the extended media courtroom artists can capture
the drama as they have done in the past, and continue to do
in federal courts.65 Susanna Barber suggests that courts
appoint media liaisons to monitor court proceedings and the
media, passing the cost on to media organizations who choose
to cover courtroom proceedings.33 Finally, James Ragsdale
added that parents should use discretion when allowing
children to view televised court hearings:

I am confident in the intelligence of the

American people -- they can decide what

they want to hear and see, and they do not

need us telling them what they cannot see

or hear.57

A simple solution to the problem, many feel, would
be for the media to establish a code of ethics which would
be enforceable and adhered to by all journalism profes-
sionals. Judge Paul Baker, of the Eleventh Judicial

Circuit of Florida, said a media code of ethical conduct

should resemble the code of conduct imposed upon judges and

125

lawyers.68 For example, the Sunny Von Bulow National
Victim Advocacy Center endorses the Media Code of Ethics
produced by Seattle’s WOmen in News and Seattle University;
the code states that a journalist shall not:39

1. photograph, film or print for
publications photographs of victims,
graphic crime scenes, or victim’s in
the courtroom without permission.

2. print or broadcast unverified or
ambiguous facts about the victim, his
or her demeanor, background or re-
lationship to the offender.

3. print facts about the crime, the
victim, or the criminal act that might
embarrass, humiliate,hurt, or upset the

victim unless there is a need to
publish such details for public safety
reasons.

4. print, broadcast, photograph or film
lured or graphic details of the crime.

5. promote sensationalism in reporting
crime or criminal court cases in any
way.
Roy Peter Clark, associate director of The Poynter Institute
for Media Studies in St. Petersburg, Florida, said that the
greater the Leghnplpgy used by the news industry, the
greater the likelihood a victim will be endangered or

outraged by the press attention. According to Clark, the

126

ethics of gathgzing information must be considered as well
as the ethics of publiphipg information:

This principle affects press photographers
and television camera crews most directly,
many of whom think their only responsi-
bility is to shoot good pictures."0

ENDNOTES

1. Audrey Pinkham Benson, Do Cameras in the Courtroop

Hugh phe Gauge 91 gaspigaz Update 20, 23 (Spring 1984).
Photocopy 1987.

2. Epur Spates Start 5 s ‘ A C eras corde 5 ip
Coazta; Iopal pp Lo 55 Stapaa, 11 The News Media and The Law

42-44 (Fall 1987) (Indiana, Mississippi, Missouri, South
Carolina, and South Dakota do not permit extended media
coverage of trial proceedings to date).

3. National Center for State Courts, “Summary of TV
Cameras in the State Courts," 3 (January 30, 1987)

(unpublished summary); Epup Statas Shag; Testa_with Camer 5,
supra note 2 at 43; Susanna Barber, Newa Capapas in the
Courtroom: A F ee r as - Fair Tgial Dapate (Norwood, N.J.:

Ablex Publishing Corp., 1987), 18~19.
4. National Center for State Courts, aupra note 3, at

5. Barber, apppa note 3, at 106-107 (giting Radio-
Television News Directors Association, 1984, B1-B17).

6. lg.

7. Carolyn Stewart Dyer and Nancy R. Hauserman,

Eaemption of Sexual Assault Vicpips fpop Electronic Naps
Covarage in Coupp_, 1 Sexual Coercion and Assault 82 (1986).

 

 

8. lg. at 92.
9. lg. at 87.

10. lg.

11. WDIV (Post Newsweek Stations, Michigan, Inc.),
John J. Ronayne, III, The Associated Press, Michigan News
Exchange, Mid-Michigan Professional Chapter of The Society
of Professional Journalists, Sigma Delta Chi, The Reporters
Committee for Freedom of the Press, and The Society of
Professional Journalists, Sigma Delta Chi (Detroit Chapter),

mments n o sed inistrativ rdep Pppvigipg Fag
Egpaagag Magia Coyaraga of gadigial Papaegginga. 1987, 19

(footnotes omitted) [hereinafter WDIV, et al.]
12. lg. at 15-16 (citipg Caperas ip phe Crimipal

Courtropp} A Sixth Amendmenh Analysis, 85 Colum. L. Rev.
1546, 1563 (1985); hp hssassment of The Use of Camaga§_lh

Spapaa apd Eaderal Copppa, 18 Ga. L. Rev. 389, 408 (1984);
New Bulea For Opan Couppa: Progreas pr__Epppy_£rppise? 18

 

127

128

Tulsa L. J. 147, 157 (n.d.)).
13. lg. at 16.
14. lg. at 21.

15. Letter from Thomas Griesdorn, general manager,
WXYZ-TV7, Detroit, Mich., to the author (October 19, 1987)
(discussing free press v. right to privacy); interview with
Michael Franck, executive director, Michigan Bar
Association, Lansing, Mich. (October 22, 1987).

16. Stewart Dyer and Hauserman, pppza note 7 at 88.

17. lg. at 89 (alplpg Palm haach Napapapars Inc, v.
Floriga. 378 So.2d 862 (1979)).

18. lg.
19. lg. (piting Elorlga v. Gregg, 395 So. 2d 532 (1981)).

20. Accrediting Council on Education in Journalism and
Mass Communications, American Broadcasting Companies, Inc.,
American Newspaper Publishers Association, American Society
of Newspaper Editors, Associated Press, Association for
Education in Journalism and Mass Communications, CBS, Inc.,
Community Television of South Florida, Inc., C-SPAN, Gannett
Companies, Inc., Media Access Project, The Miami Herald
Publishing Company, Mutual Broadcasting System, Inc.,
National Association of Broadcasters, National Broadcasting
Company, Inc., National Cable Television Association, Inc.,
National Press Photographers Association, 'National Public
Radio, The New York Times Company, Post-Newsweek Stations,
Inc., Public Broadcasting Service, Radio-Television News
Directors Association, The Reporters Committee for Freedom
of the Press, Society of Professional Journalists, Sigma
Delta Chi, The Times Mirror Company, Turner Broadcasting
System, Inc., Cable News Network, United Press International
Company, The Washington Post, Petition to the Judicial

nf e o h U ite t s Concerni isual and ural
vaerage pf Eegeral Court Proceedings by the Electronlp_and

 

 

Pript Press, March 1983, 34-40 [hereinafter Accrediting
Council on Education in Journalism and Mass Communications,
at al.]

21. Interview with Donald Martin, Ingham County
Prosecuting Attorney, Lansing, Mich. (October 14, 1987).

22. lg. (The East Lansing rape case refers to
proceedings involving a man accused of a number of rapes in
the East Lansing area; the press has dubbed the accused "the
Laundryroom rapist“. The_murder case is in reference to a
pregnant woman who was killed. Basil Brown was a Michigan
State Senator who pleaded guilty to cocaine and marijuana

129

delivery. To date, cameras and microphones have only been
allowed into the proceedings involving the murder).

23. Letter from Tony Villasana, news director, WMAZ-
TV13, Macon, Georgia, to the author (September 18, 1987)
(discussing free press v; right to privacy).

24. ,Caaa;aa_ln Lha ngpp: ; figccaaa ln Florida, 117
Editor and Publisher 16 (1984); 'Accrediting Council on

Education in Journalism and Mass Communications, et al.,
snare 20 at app.

25. The Sunny Von Bulow National Victim Advocacy
Center, headquartered in Fort Worth, Texas, was established
in 1986 by Alexander Von Auersperg and Ala Kneissl, children
of Martha "Sunny” Von Bulow, to provide resources and
support for victims of violent crimes who must deal with the
judicial system and the media.

26. Kevin Goldman, CNN Bringa_§pate Courts Into Public
Living Ragga, 133 Variety 76 (1984).

27. Impact of Media Coveragaloflflape Triala;__H_apl_g
Before the Subcopg. on Criminal Law of the Senate, Coma. on
the gagiglapy, 98th Cong., 2nd Sess. 13 (1984) (statement of
Ronald Pina, district attorney, Bristol District, Mass.)

[hereinafter lppact of MediaLCoveraga].

28. huller v.__California, 413 U.S. 15, 24 (1973); M.
Galvin, Media Law (Calif: Nolo Press, 1984), 26 (Although
the Supreme Court has ruled that obscenity is not protected
by the first amendment, they have never clearly defined what
constitutes obscenity. In 1973, the Court applied the 1957
Roth Test guidelines to define obscenity: “(a) whether ’the
average person, applying contemporary community standards’
find that the work taken as a whole, appeals to pruient
interests; (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined
by the applicable state law; (c) whether the work, taken as
a whole, lacks serious literary, artistic, political, or
scientific value”).

29. lppact of Megia Covepaga, apppa note 27 at 13
(statement of Ronald Pina).

30. Nighplina: Chapical Waappns -- Bagk On the
Bapplefialg (ABC television broadcast, March 21, 1984)
(published transcript).

31. lg.

32. is Week th David r nklay (ABC television
broadcast, March 25, 1984) (published transcript).

 

130

 

 

 

 

33. lg.

34. lg.

35. Nightline: Chapical Weapons -- Back on the
Bappla- field, apppa note 30.

36. lppagp of Magia vaaraga, apppa note 27 at 6
(statement of Ronald Pina). '

37. Nightline: The Nana Bedford ARapa__Trial (ABC
television broadcast, March 15, 1984) (published transcript).

38. lppagt pf Magia Coxeraga, agppa note 27 at 33, 44,

98 (statement of James M. Ragsdale, editor, Tha Spapdard-
Tipes, Bedford, Mass.; testimony submitted on behalf of

Colony Communications, owner of Greater Fall River Cable TV
and Wha1ing City Cable TV).

39. Letter from Charles McCorkle Hauser, vice
president and executive editor, The Ppgxigenca Journal:
hulletlh, Providence, Rhode Island, to the author (November
5, 1986) (discussing free-press v. right to privacy).

40. lppacp of Media Coveraga, supra note 27 at 26, 98
(statement of James M. Ragsdale; testimony of Colony
Communications).

41. Phil Kakielski, ”Big Dan’s Judge Assails Media For
Naming Rape Complainant," The Providence Journal, March 22,
1984. (A)9.

 

42. Thia Weeh with Dagid Brinhley, supra note 32.

43. Nightline: The New Bedford Ra Trial, agppa note
37.

44. lmpact of Media Coveraga, sppra note 27 at 34
(statement of James M. Ragsdale).

45. Nighpline: The Naw Badford Papa Tpial, appza note
37.

46. t of dia over , agppa note 27 at 20
(statement of Ronald Pina).

47. Nightline: hpsipg in Polipips (ABC television

broadcast, March 16, 1984) (published transcript).

48. Impact of hadia Coveraga, §upra note 27 at 98
(testimony of Colony Communications).

49. lg. at 31 (statement of James M. Ragsdale).

131

50. 1g. at 27.

51. Interview with Judge Michael G. Harrison, 30th Jud
Circuit, Lansing, Mich. (October 14, 1987); interview with
Judge Carolyn Stell, 30th Jud Circuit, Lansing, Mich.
(October 19, 1987); interview with Donald Martin, supra note
21; interview with Michael Franck, s .ra note 15.

52. Interview with Donald Martin, spppa note 21.
53. Interview with Judge Carolyn Stell, u a note 51.

54. Interview with Michael Franck, supra note 15.
55. 1g.

56. Interview with Judge Michael 6. Harrison, sppra
note 51.

57. Interview with James Shonkwiler, executive
director, Michigan Prosecuting Attorneys Association,
Lansing, Mich. (October 23, 1987).

58. 1d. See also interview with Michael Franck, sppha
note 15.

59. Norman Davis, Television in Our Courts: The
Phpven Advantages, the anrgven Dangers, 64 Judicature 89
(1980); impact of Media Coverage, sppha note 27 at 94
(written statement of Ed Godfrey, president, Radio-
Television News Directors Association and Ernie Schultz,
executive vice president, Radio—Television News Directors
Association).

60. Letter from Lawrence Sullivan, Assistant National
Editor, The Qetroit News, to the author (October 5, 1987)
(discussing free press v. right to privacy).

61. WW. snare note 27 at 25
(statement of James M. Ragsdale).

62. 1d. at 21, 25 (statement of James M. Ragsdale and
Ronald Pina).

63. 1d. at 7 (statement of Ronald Pina).

64. 1d. at 21.

65. Interview with Donald Martin, shppg note 21;
interview with Anne Seymour, director of public affairs,
Sunny Von Bulow National Victim Advocacy Center, Fort Worth,
Texas, in Lansing, Mich. (June 6, 1987).

66: Barber, supra note 3 at 88.

132

87. a t ia over , supra note 27 at 30
(statement of James M. Ragsdale).

68. Accrediting Council On Education in Journalism and
Mass Communications, et al., su ra note 20 at app. D.

69. Sunny Von Bulow National Victim Advocacy Center,
”Section B: Crime Victims and the Media," Curricula, n.d.

70. Roy Peter Clark, “Covering Crime: Journalists

Face Difficult Choices," in Tommy Thomason and Anantha
Babbili, eds., grime Vichims shd the Nags Medis. A

 

synopsis of a national symposium sponsored by the Texas
Christian University Department of Journalism and the
Gannett Foundation, November 18, 1986, n.d.

CHAPTER 7
WITNESSES ON TRIAL

Trial proceedings take place in either a criminal or
civil court. ,Qxipingl actions are taken by the state or
federal government to punish an individual who has broken a
public law. 91:11 actions arise when private rights, es-
tablished by a contract or tort, are infringed upon.1
Civil actions usually seek monetary compensation for the
plaintiff from the opponent for the wrongdoing that
occurred; in criminal actions, if the defendant is found
guilty, the punishment may be a fine, supervised release,
incarceration, or even death. In some instances, a case may
be tried in hgth a criminal and civil court.

The testimony of witnesses is necessary in civil and
criminal trials to determine if the accused is guilty of any
wrongdoing. Though the examination of witnesses is under
the control of the court counsel for either party may
generally ask questions about anything related to the case.
However, the information solicited by an attorney must be
competent, relevant, and, material to the proceedings. A
judge at anytime may decide that a particular line of
questioning is immaterial, and stop a witness from answering

a question.2
133

134

The mode and manner of questioning of a witness is
also under the control of the judge. The presiding judge
should take steps to relive the fears or nervousness of a
witness.3 In some instances the court may even take steps
to protect a witness from being taken advantage of unfairly.
”The court is under duty to interfere, regardless of
objection, in order to protect a witness from being brow-
beaten, insulted, or intimidated by counsel."4 However, the
court should not classify witnesses, suggesting to the jury
and other trial participants that one class should be
viewed with caution "because its vices are different in a
kind or degree from those of another class."5

Each witness is a distinct problem for an attorney.
Two people may witness the same incident, however, their
recollection of the event may be completely different. The
way in which a person processes information is influenced by
such things as background, past experiences, temperament,
faculties, and intelligence.‘ Because it is common for
testimony to vary from one witness to another, an attorney
will use numerous tactics during the cross-examination
designed to discredit even the most honest witness:

It is said that there are few citizens who

participate in a lawsuit who come out of it

with a better reputation than the one with
which they went in . . . . The law is no

135

respecter of persons, or persons’ feelings

if they happen to be witnesses under cross-

examination.7
One way to impeach a witness is by discrediting the actual
individual.’ This can be accomplished by the attorney
illustrating that the witness’s past may influence his/her
testimony; for instance, a witness in a friend’s divorce
case, ‘may be impeached (as well as embarrassed) when
questioned about his/her own unpleasant divorce. The
testimony of a witness may also be discredited if the court
allows expert testimony from a mental health professional,
commenting on the mental condition of a witness. A
psychologist could conclude, for example, that a witness’s
recollection of an incident may not be reliable because, the
individual shows the tendencies of a pathological liar.
Attacking testimony by accenting improbabilities and
contradictions is another method used to impeach a witness.
This may be accomplished by questioning the witness on a
specific subject, then presenting a police document that
shows a differing statement made earlier by the individual
regarding the same subject. An attorney may also attempt to
discredit a witness by questioning the memory and faculties
of a witness: “Did the incident occur before lunch or after
lunch” "were you wearing your glasses, as you are now, at

the time you witnessed the incident.“

136

Witnesses can also be impeached by the attorney’s
mode of questioning.9 During direct examination open-ended
questions are often used in order to elicit as 'much
information from a supporting witness as possible. However,
during cross-examination closed-ended questions are pre-
ferred, since this line of questioning allows the examiner
to ”control" the answers of the witness. Closed-ended
questions tend to require a simple "yes” or “no” response,
thus stopping the witness from offering any unanticipated
information. Although a witness may feel that this form of
questioning manipulates the actual intent of his/her

testimony, a ”yes“ or “no“ response is all an attorney will

generally accept, ignoring or refusing any additional
explanatory comments. However a frustrated witness, who
refuses to answer just "yes" or "no“, can be easily

impeached by an attorney who continues to

[p]ress for definite and specific answers

until [the witness’s] evasiveness becomes

clear to the jury. The jury will then

easily conclude his testimony is

worthless.10
Tag questions are also used by attorneys to control
responses given by witnesses. Asking tag questions (“You
did see the man, didn’t you?") will elicit more ”yes"
responses than other forms of questions.11 A final way to.

impeach a witness, while at the same time humiliating

137

him/her is for the attorney to use the “silent treatment“
on the witness after a particular response; this tactic is
especially unnerving for an ignorant, timid, or inexper-
ienced witness.13

Any individual can fissilz be belittled while on the
witness stand. However, often times victims of crimes who
testify must additionally dsfsnd themselves when being
questioned by attorneys. Because of the seriousness of some
crimes, and the punishments imposed on an individual found
guilty, an attorney will use every tactic available to
defend a client. An extreme example is sexual assault
victim who is forced to testify about the alleged incident.
This example is noteworthy for three reasons: sexual
assault is a common occurrence in today’s society; victims
are still frequently blamed for the assault; the media tend
to cover sexual assault crimes, and other sensational
crimes such as murder, in much more detail then other

equally serious crimes (such as arson).

RAPE VICTIMS AND THE SECOND ASSAULT

A victim is a person, or relative of a person, who,
through.no fault of their own, suffers direct physical harm,
pain, or emotional trauma; a person may be victimized as the
result of a crime, accident, or natural disaster.1' Victims

of trauma experience a two~phase post-traumatic stress

138

disorder.u Phase One immediately follows the exposure to
the initial traumatic event, and is a stage of disorgan-
iaation, varying from person to person. An individual may
appear calm, but underneath be very upset and stressed.
Victims may be fearful, unable to sleep, appear apprehen-
sive, feel upset, and be emotional. The phase may last only
moments, or last for hours, weeks, or even ‘months.15 Phase
Two involves a gradual reorganisation of the victim’s life.
Superficially, an individual will return to the psycho~
logical state that was present before the traumatic
incident; however, deep down, the individual tends to be
troubled by events that remind him/her of the traumatic
incident. Phase Two can last from months to years.16

Sexual assault victims also experience a two-phase
post-traumatic stress disorder, though it differs from the
disorder experienced by victims of other trauma. According
to rape trauma experts Ann Burgess and Lynda Holmstrom,
Phase One

triggers an acute disruption of the

victim’s psychological, physiological, and

social lifestyle, as evidenced by somatic

problems, disturbances in sleeping and

eating patterns, and the development

of minor mood swings and fears specific to

the circumstances of the assault. The

sexual offense, from this standpoint,

constitutes a situational crisis imposed on

the victim, and the impact of the assault
may disrupt the biopsychosocial functioning

139

of the victim for an indefinite period of

time. Tragically, the victimisation often

does not end with the assault.17
Victims often try to surround themselves ‘with added
protection and emotional support. Because of the feeling of
defilement and 'violation most assault victims experience
problems in having sexual relations.13 In Phase Two, an
individual may behave as though everything is fine, and try
to push the incident behind them by denying it ever
happened. The reactions are induced by events that remind
the individual of the original trauma. The phase may occur
over a very long period of time.1‘ Viothms of rape also
often go through different suffering then do victims of
other violent crimes because of the social stigma attached
to rape. The victim often feels guilty about the assault
and tries to figure out what he/she may have done to bring
on the violation.20 “A lot of men still see rape as a
sexual act, and a lot of men identify with the rapists,"
said Tim Beneke, author of Msn__Qn_Rsp§, “and a lot of men
are still blaming women for rape."1 Elisabeth Bennett, of
the New Bedford Women’s Center agrees: “If we treated rape
as we treated other crimes the questions would be, who did
it? The question is , what kind of woman are you, and it
should not be that way."22

140

Even some state rape laws reflect out-dated
philosophies about rape and women. It can be “implicitly
assumed," in some states, that the victim. consented to
intercourse, or other sexual conduct, unless there is clear
evidence -- usually resistance -- illustrating the lack of
consent.33 For example, in California a jury instruction
allows every person a defense for the charge of rape.
Attorney Judith Rowland explained that if a defendant
thinks he had consent from the alleged victim, and the
belief is reasonable and in good faith, then a jury must
find the defendant innocent of the charges.34 A defense
attorney will skillfully ask leading questions in hopes that
the jury will believe the alleged victim.consented to sexual
intercourse:35

Defense

Attorney: Isn’t it true that it seemed to

you that he felt what he had
done was all right . . . that

nothing was wrong?

Witness: He seemed to act as if I wouldn’t
do anything about it.

Defense
Attorney: He didn’t run, did he?

Witness: No.

Defense
Attorney: Or chase you out of the house?

Witness: No.

141

Defense
Attorney: Or order you not to tell anyone?

Witness: No.

Defense

Attorney: Then everything 'he said or did
would lead you to believe he
didn’t think he’d done anything
wrong?

The past sexual history of a victim can also be
considered relevant in a case, and prosecutors often do not
raise objections to this line of questioning because it may
appear that the victim has something to hide.26

While in some instances this may be true,
in many others it seems to serve as a subtle
sanction and disapprobation of sexually
active women either "deserved" or ”wanted"
to be raped.27

Judge Lisa Richette argued,

You don’t bring the person’s whole
background into evidence in a burglary or a
narcotics or any other case. Only in rape
do you feel that you are able to do this,
and you’re talking about a system of
jurisprudence. That system has been
changed through these new laws that have
been passed, and you’re trying to wipe them
out.30

One defense attorney tried to show the jury that if the
alleged victim had sexual relations with a friend of the
defendant, then she must have willingly slept with the

defendant:39

142

Defense

Attorney: How about the fact that he [the
defendant] drank and got drunk?
Would this have a bearing on your
feelings toward him?

Witness: Yes.

Defense

Attorney: How about the fact that he
smoked pot, did this have a
bearing on your feelings?

Witness: I think probably because of the
excess of it.

Defense

Attorney: Now Ms. Adkins, did Stan [the
defendant’s friend] drink?

Witness: Yes.

Defense
Attorney: Did Stan get high on pet?

Witness: Yes.

Defense

Attorney: So that Mr. Harter and Mr. Pease

were no different?

In the past it was often believed that women falsely
accused men of rape, out of anger, guilt, or fear; it was
also felt that jurors were sympathetic to women who had been
raped. However, according to Deborah Carrow, author of

-:, these two myths

 

have been found to be false. A false rape complaint making
its way to trial is very unlikely because of the many stages
and screening processes required; the process is one that no

person would take lightly, and may even discourage some

143

individuals from reporting and pursuing legitimate com-
plaints.’0 While an attorney for San Diego County, Judith
Rowland was involved in a rape case where the defense
attorney suggested to the judge 'and Rowland that the
alleged victim. many have accused the defendant of rape in

order to get her boyfriend to let her move in. Rowland

said,

I considered the absurdity of the proposi-

tion and had to smile: that a woman -- in
order to get to move in with her boy-
friend -- would run naked into the street,

endure endless interviews, be subjected to
an embarrassing physical examination, and
spend long hours answering detailed
questions on a witness stand in front of
twelve strangers; and just for insurance,
during the fertile time in her menstrual
cycle, not take any precautions, planning
to use a resulting pregnancy as her ace; an
abortion is simple enough and its threat
would bring round any but the most callous,
certainly a boyfriend, to take her in
during her time of need."1

There is also evidence that jurors are not sympathetic to
the plight of rape victims; one study found that a jury
would have convicted an accused rapist in three out of
forty-two cases, while the judges would have convicted
twenty-two of the forty-two defendants accused of non-
aggravated rape.33

Victims who pursue a complaint and go through the

trial process are often upset by the lack of information

144

they are supplied with regarding the legal status and court
proceedings. Victims are frightened by grand juries and
subpoenas, and are often not consulted about plea bar-
gaining -- being left to feel that the judicial system has
”little regard for the victims’ well--being."'a

The criminal procedure for rape usually involves
five steps: the defendant has a ppsssnhnsnt hsgzing, where
he/she is advised of the right to counsel and the nature of
the charges; a pxsliminszz hssping follows, to determine if
a crime was committed and if there is substantial evidence
that the accused committed the crime; next, during an
spsnignnsnt, a plea of guilty or not guilty is offered by
the defendant; the txisl then begins; and plss hszgsinipg
commonly goes on throughout the trial process.34 The
preliminary hearing can be especially brutal for the rape
victim. A

Often, it is conducted by a lay magistrate

or lower court judge who lacks sensitivity

to the issues and who exercises little

control over the far-ranging, sharp, and

often, deprecating cross-examination

techniques of defense counsel.’5

Often in the county’s District Attorney’s Office,
male attorneys out number female attorneys. Many sexual
assault victims must work.with.a male prosecutor who may not

understand the trauma of rape, or wonder how something like
"this could have happened, how could she be so dumb."6

145

Many victims fear the male prosecutor will not believe the
victim, according to Judith Rowland, and reveal information
that is only directly asked for; Rowland said prosecutors
must learn to ask every question imaginable before placing
greater importance on some information over other infor-
mation.37

Although it is the prosecuting attorney’s job to
bring justice to society, a few “bad apples” may use their
position and a particular case to benefit themselves.
Prosecutors are usually elected, and often use the office as
a stepping-stone to higher political positions. Because of
this, and because the prosecutor has power of discretion,30
the media often scrutinises the actions of this public
official more than other public officials.39 At the expense
of serving the public interest, to look good a prosecutor
may reduce charges unnecessarily in Order to assure
conviction, or a case that normally could be handled
swiftly and quietly may be over-exposed to the public and
the media.40

The defense attorney is retained or appointed to
defend a person accused of a crime. It is the defense
counsel’s job not to prove the innocence of the accused, but
to show that the prosecutor failed to prove guilt. If this

defense does not work, then the defense attorney will

146

attempt to show that the accused was not properly brought
through the trial process, by arguing the defendant was
denied due process of law, for example. No matter how
serious the crime, it is the defense counsel’s responsi-
bility to ensure that a person’s constitutional rights are
carried out to their fullest intent.

The trial stage begins with opening statements being
made by both counsels. Next, the prosecutor begins the
presentation of evidence, with the direct examination of
witnesses. The defense attorney has the option to cross-
examine any of the witnesses. The purpose of cross-
examination is to test the witness’ observation, recol-
lection, truthfulness, and possible bias against the
accused.‘1 During the first phase of cross-examination the
attorney may only ask the witness about things that were
discussed during direct examination; hOwever, leading
questions are permissible during the examination.43 A
skillful defense attorney will attempt to confuse, fluster,
frighten, and anger the witness in hopes that he/she will
lose self-control and composure. Yet Judith Lindahl, a
defense attorney in the New Bedford rape case, claims “a
truth-telling woman cannot effectively be cross-examined or
humiliated.“43 However, Alan Dershowits, a well-known

defense attorney and professor at Harvard Law School, said,

147

"I think I would have a great deal of trouble doing what so
many defense lawyers do, which is subjecting the woman to a
second rape -- this one in the courtroom itself."H One
woman was cross-examined about the lack of physical injuries
she sustained during the alleged rape“5

Defense

Attorney: Ms. Adkins, you claim Mr. Harter

grabbed you roughly about the

mouth, is that correct?

Witness: He shoved my head back down on
the bed with his hand over my

mouth.

Defense

Attorney: Was it hard enough to bruise
you?

Witness: No, it wasn’t.

Defense
Attorney: What other force was used?

Witness: When he grabbed me, I tried to
get out of bed. He grabbed my
arm and threw me back down on the
bed.

Defense
Attorney: Hard enough to leave any bruises?

Witness: No. The bed was soft.

Defense

Attorney: In fact, Ms. Adkins, you had no
bruises or contusions or
lacerations of any kind anywhere
on your body after this incident,
did you?

148

Witness: I was very sore, very very sore
around my vagina. It hurt me
alot.

Defense

Attorney: Just there? [emphasis in
original.] -

After the cross-examination the prosecutor may recross-
examine the witness to clarify points brought out during the
crossexamination.

Once the prosecutor completes the state’s side of
the case, the defense attorney will present his/her case.
However, some defense attorneys may not present their own
witnesses, as this is not required by 1aw.43 A defendant is
not required to take the stand at any point in a trial, and
this fact cannot be called to the jury’s attention.n

Charles Dean and Mary deBruyn-Kops note that even
the judge may lack sensitivity during a rape trial. While
most judges remain impartial in a rape case, a few may, out
of concern to ensure the defendant is given absolute due
process under law, become prejudice in favor of the accused,
causing the victim to feel she herself was the crimina1.4°
Dean and deBruyan-Kops also said that a victim.who goes
through the entire trial process can be put through severe
anguish, which explains why victims do not want the

proceedings widely publicised.

149

The Supreme Court Justice who suggested
that young victims might be afforded
privacy during their testimony at a rape
trial apparently did not stop to think that
privacy might be desirable for older
victims, too.“

A victim of sexual assault in an open, public court
must describe the assault in minute and explicit detail.
Old wounds may be reopened or the healing process retarded
when a victim is forced to mentally relive the assault in
the presence of the defendant:

The details of the assault are often

humiliating and degrading to victims, and

they may have difficulty speaking about

them. One study described the necessity

for the victim to publicly disclose details

the assault as "tantamount to leaving her

naked in a crowd of curious observers.“o
During one trial, in hopes of illustrating that the woman
did not consent to sexual intercourse with the defendant, a

prosecuting attorney had the witness explicitly describe the

assault. The testimony includedz51

Prosecuting

Attorney: What about his voice?

Witness: It was different. He didn’t
yell or anything . . . he
commanded me and I . . . like

when he first told me to
take off my top, and I said
no. Then he said, ”Take it
off!“ and I did. And when he
told me to spread my legs, I
said no to that too. Then he

said, "Spread ’em!" and I
did. It was the tone that
scared me, and I . . .

obeyed.

150

Prosecuting

Attorney: Yen’ve told us Mb. Adkins,
that his penis wasn’t hard
and that it wouldn’t go in.

Witness: Yes.

Prosecuting

Attorney: What happened next?

Witness: He said, ”Put it in your
mouth."

Prosecuting

Attorney: What did you say?

Witness: I said, “I don’t want to,“
and he said "Put it in your
mouth and make it her ." And
he pushed it . . . he was
over me and he pushed it up
to my mouth.

Prosecuting

Attorney: Did you do it?

Witness: Yes. I didn’t want to do

it.

Adding the fact that extended media coverage of rape
trials is permissible in many states imposes even more
pressure on the victim. Victims and witnesses whose name,
address, and even photograph might appear in the news can
experience "revietimisation" because vulnerability is
exposed so openly.52 Few victim advocates agree with the
media’s argument that by suppressing the victim’s identity

the stigma associated with rape is perpetuated.

151

Rape is the ultimate invasion of privacy.
In some ways, cameras seem like another
rape, a gang rape, since the eyes of so
many would be participating in the
invasion.53

However, the managing-editor of Providence, Rhode Island
television station WLNE-TV, said the media “fell into a
trap" when they decided not to name rape victims, and the

only way the social stigma of rape can be cleansed" is
when women come forward publicly.54 James Ragsdale, a
newspaper editor, disagrees with this familiar argument:

Publishing the names of victims in the
crime of burglary has not stopped

burglary . . . It has not stopped killings.
I suggest that the publishing of names is
not going to stop rape. . . . Only in the

case of rape is the victim the one that
gets placed on trial. One does not accuse
the woman teller at a bank for standing too
close to the money at the time she got
robbed. A woman is not held suspect for
charging that a man snatched her purse--
only it seems, in the case of rape.55

One victim said she was not sure who to trust, and was
afraid that people would not believe her if the details of

her rape were made public:

I was afraid . . . that people would blame
me for it, that people would judge my
actions, reactions or motives. . . . To

testify at the trial, to recount all the
details, was the hardest thing I have ever
done, even with the support of many in the

courtroom. I was forced to relive the
rape in front of strangers and my
assailant. . . . I was aware that the court

proceedings were open to the public, and it
threatened me. I wanted to know who the

152

people were that were in the courtroom-

If I had had to face TV cameras in that

courtroom, being exposed to anyone in the

community at the flick of a dial, I can say

with certainty I would not have

testified.56
Another victim felt assured her sexual assault would not be
reported in detail. However, the television, radio, and
newspaper reported on the trial proceedings, and published
her age, address, and occupation. The victim said,

Not only was I hurt and angry from the

assault. I was now ashamed and embar-

rassed, wondering who knew, what were

people thinking, what were they saying.57

However, in some instances publicity of a trial may
be beneficial. Attorney Timothy Dyk said, "[t]he reason we
have public trials is because it helps deter purgery,
encourages witnesses to come forward, [and] urges the trial
participants to do a better job."58 For example, a
California newspaper ran a story on a rape trial that was in
progress, with the name and photograph of the victim
published along side the article. A former male acquainte
ance of the victim called the prosecuting attorney’s office
to say he knew the woman, and had slept with her on one
occasion; the man added that he had not known, at the time
‘he met the woman, that she had recently been raped.

However, it was apparent to him that something was troubling

“the woman. The gentleman said that their date was pleasant

153

and progressing nicely. The woman seemed very receptive to
the idea of sexual intercourse; she responded favorably to
foreplay, but, when they attempted to have intercourse the
woman “froze up,“ became very depresSed, and said she could
not have sexual relations with.the man. The man became a
witness for the prosecution to help illustrate how the
trauma of rape had left the woman, who previously enjoyed
sexual relationships, with a sexual dysfunction.59

Others are concerned for the relatives of violent
crime victims, especially when children are involved.
Although the names and photographs of minor victims are
rarely made public, often times nothing stops the media from
publicizing the parents’ name. When discussing CNN’s and
other extended media’s desire to cover the McMartin
preschool child abuse case, Kee MacFarlene, director of the
Child Sexual Abuse Diagnostic Center in Los Angeles, said,

I am as concerned about the parents as I am

about the children in this case. Their

privacy has been ruptured by this sit-

uation. And I think that while we may

solve some of it by protecting children,

the parents will be testifying as well in

this case, and the medical people will be

testifying as to the identities of the

children, and so will we. I do not see how

this case can be televised live and

protect these children and their
families.“0

154

Children who are cross-examined can be belittled just as
easily as an adult. F. Lee Bailey and Henry B. Rothblatt
offer cross-examination techniques to use on children:

Young children are prone to suggestion.

Ybur questions should be stated affirm-

atively. The child is likely to answer

"yes" to a question that suggests a yes

answer . . . . Children are extremely

imaginative. Their stories can be pure

fiction or part fact and part fiction. If

the child has let his imagination run away

with him, encourage him to exaggerate.

Gently lead him further and further until

his story reaches the point of

ridiculousness.‘1

Ann Seymour, of the Sunny Von Bulow National Victim
Advocacy Center, is also concerned about the family, and
even friends, of victims. Seymour said family and friends
often do not attend the accused’s trial because of the
emotional pain. However, the extended media often captures
the courtroom drama, and publishes it . as newsworthy
information. The example Seymour gave concerned the trial
of a man accused of sexually assaulting and murdering a
mother and daughter. An enlarged photograph of the young
girl’s breast was submitted as evidence during the trial;
the photograph was used by the prosecutor against the
offender, and a medical doctor discussed bite marks visible
on the breast.

That evening on the five o’clock news, the

picture was aired and identified as Julie’s
breast for all the world to see. Her

155

family, and particularly her young friends,
were outraged at the blatant disrespect for
Julie. They felt that since Julie, in
life, would never have exposed her breast,
the media had no right to do so on the
evening news.33

PROTECTING THE PRIVACY INTERESTS OF SEXUAL ASSAULT VICTIMS

Many believe measures should be taken to insure that sexual
assault victims are allowed some right to privacy during
trial proceedings. A common recommendation is to allow the
victim a greater voice in how the trial proceedings will be

handled by the extended media.“3 Stewart Dyer and Hauserman
suggest that a victim be given control over extended
coverage of trial proceedings by requiring the victim’s
ggnssnt hsfgxs coverage is permitted. If a victim.phjsgps
to coverage that has already been pszmittsd, then an
automatic exemption of the victim should be allowed.
Regardless of which type of procedure is enforced, Stewart
Dyer and Hauserman maintain the victim should be notified
well in advance about plans for aural and/or visual
coverage of a trial, and the procedures for consenting or
objecting.H Michael Franck, executive director of the
Michigan Bar Association, agrees; Franck said that if out
front victims know how the judicial process and the process
for covering trials aurally and ‘visually works, and the

options available to decline coverage are explained, then

156

there should not be a problem of victims not wanting to
provide testimony.as One rape victim also feels the consent
of the victim.should be considered more seriously, as well
as what type of information is made available to the public
by the extended media:

People might become more inclined to report
this crime against both body and integrity
if details of their private lives were
published only with their consent. Perhaps
reporting the rapists modus operandi and
the general location of the crime would
alert an educated public. But publishing
details of alleged victims lives per-

petuates the intrusion. To me it felt
like another intrusion, another
rape- . . .66

Other victim advocates stress that if state
guidelines cannot fully protect sexual assault victims from
extended media coverage, then at least the identification
and photograph of the victim should be prohibited by the
broadcast and newspaper industries.67 Ed Godfrey suggests
that while la sexual assault victim is on the stand
testifying the television camera be pointed away from the
witness, perhaps focusing on the defense attorney,
prosecutor, judge, jury, or defendant. Precautions would
also be taken to avoid publicizing the victims name.5°
Though Godfrey approved of televised trials, he said,

I think rape victim’s rights have been

forgotten, which is one of the reasons I
feel so strongly about somehow televising

157

these trials. . . . Unfortunately, it is

the most sensational cases which are

publicized, but it seems to me the

constitutional rights of a victim have been

overshadowed by trying to protect those

accused, in our judicial system.'9
Ann Seymour is particularly concerned about the'publicizing
of sensitive victims’ identities, such as children, elderly,
and the handicapped. Seymour also added that publicizing
any witness’ name and address could be damaging if the state
does not require that the witness be notified about
particulars of the case, such as the defendant being
released on bail.70 Lynn Marks, executive director of Women
Organized Against Rape, suggests that the media industry
continue to use sketch artists in sexual assault trials if
it is felt a. picture is necessary when reporting on the
proceedings."1

A few individuals see privacy rights and
constitutional rights as important considerations to be
weighted more heavily when trying to balance the rights of
the press and the rights of witnesses.73 Charlotte Carter
observed that

opponents of courtroom photographs argue

that the nature of camera coverage, with

its ability to capture intimate closeups

and its widespread exposure of an indivi-

dual’s features and private emotions,

requires a re-evaluation of the privacy

rights of those subject to such coverage.

Even. those who advocate courtroom photo-
graphy have recognized the need to protect

158

the privacy right of the innocent bystand-

er who becomes a chance witness or the

individual who unwittingly is summoned to

jury duty.73
Gary Melton, director of the Law and Psychology Program at
the University of Nebraska, at Lincoln, argues that the
sixth amendment public trial clause if fulfilled so long as
the defendant, counsel, family, and friends are present;
thus, young ‘witnesses may avoid having to recount
embarrassing and emotional material to large audiences.‘H

Another remedy to the problem of extended coverage
of sexual assault proceedings would be to educate society
about the crime of rape to eliminate the stigmas often
attached to the crime.75 Ernie Schultz and Ed Godfrey said
that the problem of rape is within our society, not in how
rape trials are covered. The problem will not be solved,
Schultz and Godrey said, until society is_ educated to
realize that rape is not a sex crime, but an assault
crime.76 Godfrey said,

We hope the day will come and come soon

when society treats them just like other

victims of crimes, and the news media can

do the same without setting off a fire

storm of criticism. We believe if there is

a fault, it lies within the courts and the

society they reflect, not in the media
which merely exposes what already exists.77

159

Ann Burgess and Lynda Holmstrom said,

Persons who subsequently come into contact
‘with the victim. must be particularly
careful not to compound the core issues
underlying the trauma of being raped. It
is crucial that the individuals (police
officers, examining physician, family
members, etc.) not be angry with the
victim for having been victimized, that is,
not blame her for the assault. It is
equally important that she be permitted to
have as much opportunity as possible to be
self-determining again and to have some say
in the subsequent series of events, activ-
ities, and decision-making processes that
come into play following the attack. By
capitalizing on these opportunities, much
can be accomplished in helping the victim
restore her sense of competency, adequacy,
and self-worth.73

Finally, a simple solution to the problem, suggests
Carolyn Stewart Dyer, is for the media to consider some
ethics and "put themselves in the place of the victims and
ask themselves if they would want to testify to embarrassing
humiliating, or frightening experiences on camera for all

the world to witness.“79

ENDNOTES

1. 7 Words and Phrases, Civil Action (1968); 10A
Words and Phrases, Chipihsl Acpion (1968).

2. C.J.S. ,flihnsssss 317.
3. Lg.

4. lg. (siting State V. Goodwin 186 P.2D 935
(Washington).

5. F. Lee Bailey and Henry B. Rothblatt, Succsssful
c i ues f r Cri inal Trial , 2nd. ed. (Rochester, NY:
The Lawyers Co-operative Publishing Co. , 1985), § 26:4.

6. 1g., 11:19.

7. Kevin Tierney, flpw Tp hs s Wippsss, Legal Almanac
Series No. 67 (Dobbs Ferry, NY: Oceana Publications, Inc.,
1971), 63-64.

8. 1g., 64-70; F. Lee Bailey and Henry B. Rothblatt,
shpgs note 5 at §11=20~11=29.

9. F. Lee Bailey and Henry B. Rothblatt, supga note 5
at § 11:20-11:29; Elizabeth Loftus and Jane Goodman,
"Questioning Witnesses," in Saul M. Kassin and Lawrence S.

Wrightman, eds., The Psyghology of Evidence gsnd Trial
Procedure (USA: Sage Publications, Inc., 1985), 255-271.

10. F. Lee Bailey and Henry B. Rothblatt, shpra note 5
at§11=22.

11. Elizabeth Loftus and Jane Goodman, in Saul M.
Kassin and Lawrence S. Wrightman, eds., suprs note 9 at
11:22.

12. F. Lee Bailey and Henry B. Rothblatt, suppa note 5
at §11:20- 11:29.

13. Roy Peter Clark, "Covering Crime: Journalists
Face Difficult Choices,“ in Tommy Thomason and Anantha
Babbili, eds., inps Eicpihs shd phe News hsgis. A
synopsis of a national symposium sponsored by the Texas
Christian University Department of Journalism and the
Gannett Foundation, November 18, 1986, n.d.

14. Judith Rowland, The Ultimate Violstion (Garden
City, N.Y.: Doubleday and Company, Inc., 1985), 337 (Expert
testimony of Dr. Joshua Golden, Psychiatrist, UCLA School of

160

161

Medicine. The post-traumatic stress disorder has been
officially recognized by the American Psychiatric
Association) (Judith Rowland served as an attorney in the
felony division of the San Diego County District Attorney’s
Office before going into private practice. The Ultimate
Eiolspion was written in hopes that readers would get a
better understanding of what rape is and is not, who rapes,
how victims cope, and what should be happening in rape
trials. The four rape trials discussed in the book are true
and accurate, except for the names of the victims and other
related characters).

 

15. lg.

16. lg.

17. lg. at 303 (citing Ann Burgess, Lynda Holmstrom,
and Nicholas Groth,.Bspe: Power, Anger, shd fissuslitz, 134
Am. J. Psychiatry 1239-1243 (November 1977)); see glso Ann
Burgess and Lynda Holmstrom, Ra e d o e, 131 Am.

J. Psychiatry 982-983 (September 1974).
18. Rowland, sgpss note 14 at 339.

19. lg.; se ee slsg Burgess and Holmstrom, suprs note 17
at 985.

20. Nighpline: The Essponsibilitz of the Withsss (ABC
television broadcast, March 17, 1984) (published transcript).

21. Rowland, supra note 14 at 339.

22. Nightline: The New Bsdford Raps Trial (ABC
television broadcast, March 15, 1984) (published transcript).

23. Deborah M. Carrow, Bsps: Guidelines fpr s
o i s (USA: National Institute of Law

Enforcement and Criminal Justice, 1980), 169.

24. Rowland, sppps note 14 at 93 (Rowland said this
jury instruction “could only be the product of a male
perspective of the act").

25. lg., 93 (After the defense attorney asked the last
question the prosecuting attorney objected, saying the
defense attorney was giving a conclusion to the jury.
Before the judge could rule the defense attorney said he was
through questioning the witness).

26. Carrow, sppsa note 23 at 169, Lisa Brodyga, et
a1. , Rape and Its Victim: AJBeDort for Citizehs, Hsslth
WW (USA=Nationa1

Institute of Law Enforcement and Criminal Justice, 1975),
103.

162

27. Carrow, sgpps note 23 at 169.

28. Nightline: Tbs Bsspghsibiliiy of the Witnsss,
sppzs note 20.

29. Rowland, u r note 14 at 88-89 (After the last
question asked by the defense attorney the prosecuting
attorney objected, saying the question was argumentative and
called for a conclusion. The judge sustained the objection).

30. Carrow, sppps note 23 at 175.
31. Rowland, supp; note 14 at 87.
32. Carrow, supra note 23 at 175.

33. Ezzart A. Fattah, ed., From Crime Policy ho Victim
Policy (New York: St. Martin’s Press, 1986), 215.

34. Brodyga, et al., u re note 26 at 97.

35. lg. at 101.

36. Rowland, supra note 14 at 147.

37. lg. at 148.

38. Power of discretion refers to an option open to
judges and administrators "to act or not as they deem proper
or necessary and such acts or refusal to act may not be

overturned without a showing of abuse of discretion" (citing
Black’s Law Dictionary (abridged 5th ed. 1983)).

 

39. Harold J. Vetter and Leonard Territo, Crim_h"_g
Justice in Americs; A Human Pepspectivs (St. Paul: West
Publishing Co., 1984), 231.

40. lg., 260.

41. lg., 319.

42. lg.

43. This Wssh pihh David Brihhlsy (ABC television
broadcast, March 25, 1984) (published transcript).

44. i i : 'b'l he W 55,
supp; note 20. .

45. Rowland, sppss note 14 at 92.

46. Vetter and Territo, sppss note 39 at 319.
47. lg.

163

48. Charles Dean and Mary deBruyn-Kops, Thsn_Qgims_shg

1hs__gghssghghgss pf Bsps (Springfield, IL.: Charles C.
Thomas, 1982), 89.

49. lg. at 38.

50. Carolyn Stewart Dyer and Nancy R. Hauserman,

Exea2_ion_9f_.8exual_Assanlt__Eietins 1 Sexual Coeraion and
Assault 82 (1986) (cited K. Weis' and 8.8. Borges,

”Victimology and Rape: The Case of the Legitimate Victim,"

in L.G. Schultz, ed. Bsps__!igpipplpgz (Springfield, IL.:
Charles C. Thomas, n. d. ), 91- -141; Anne Burgess and Lynda
Holmstrom, Esps: Ti ships of Qpisis (Bowie, MD.: Robert J.

Brady, 1974); T. W. McCahill, L. C. Meyer, and A. M. Fischman,
The_Aftormath_of_Bane (Lexington. HA.= Lexington (1979))

51. Rowland, sppps note 14 at 92 (The testimony went
on to give other more graphic and explicit details of the
incident from both the alleged victim and the defendant).

52. lppact of Mggis_§oxerage oflgspe Trisls: Begging
Before the Subcgpp. on Criminal Lsg of the Senste Comm. on
the Judiciagz. 98th Cong., 2nd Sess. 73 (1984) (statement of
Jo Beaudry, coordinator, Victim/Witness Services, Milwaukee

County, Wisconsin) [hereinafter Impact of Media Covezsggl.

 

 

53. lg. at 69 (statement of Lynn Marks, executive dire
actor, Women Organised Against Rape, Philadelphia,
Pennsylvania).

54. Thomas J. Morgan, “TV Newsman, Editor Clash on
Rape Coverage Channel 6, Standard Time Part Ways on
Identifying Women," The Providence Journsl, March 22, 1984.
Photocopy 1986.

55. lg.

56. lppgct of Media Covsgsgs, supra note 52 at 51-52
(statement of Jennifer Barr, rape victim, rape crisis
counselor).

57. lg. at 48 (statement of Ellen Guyker, rape victim).

58. Interview with Timothy Dyk, attorney, Wilmer,
Cutler, and Pickering, Washington, D.C. (May 19, 1987).

59. Rowland, sppgs note 14 at 271-172.

60. Child Ssxusl hhuss Zigtims in hhs Court: Hearing

hgfors the Spbcpgh. oh Juvenile Jgstics of the ngpihtee on
the deisiagz, 98th Cong., 2nd Sess. 95 (1984) (statement of

Kee MacFarlane, director, Sexual Abuse Diagnostic Center,
Children’s Institute International, Los Angeles, Calif.)

[hereinafter Child Sesual hbhse Victips].

 

 

 

164

61. F. Lee Bailey and Henry B. Rothblatt, Successful

Igghpigpes for Crimipgl Ipials, 2nd ed., (Rochester, NY:
The Lawyers Co-operative Publishing Co., 1985), §11:38.

62. Sunny Von Bulow National Victim Advocacy Center,
”Section B: Crime Victims and the Media," Curricula, n.d.;
interview with Anne Seymour, public affairs director, Sunny
Von Bulow National Victim Advocacy Center, Fort Worth,
Texas, in Lansing, Mich. (June 6, 1987).

63. Stewart Dyer and Hauserman, §upra note 50 at 86-
92; letter from Carolyn Stewart Dyer, associate professor,
School of Journalism and Mass Communication, University of
Iowa, to the author (May 7,1987) (discussing free press v.

right to privacy); lm22§L__ Of Magi 1a Qov veppge, §_pp§ note 52
at 49 (statement of Ellen Guyker); Carrow, supra note 23 at

102; interview with Michael Franck, executive director,

Michigan Bar Association, Lansing, Mich. (October 22, 1987).
64. Stewart Dyer and Hauserman, supra note 50 at 92.
65. Interview with Michael Franck, supra note 63.

66. lmpgct of Media Coveragg, supra note 52 at 49
(statement of Ellen Guyker).

67. lg. at 64, 82 (statements of Lynn Marks and Ed
Godfrey, president, Radio-Television News Directors
Association); interview with Anne Seymour, supra note 62.

68. Impact of Media Coverggg, supra note 52 at 82
(statement of Ed Godfrey). '

69. lg.

70. Interview with Anne Seymour, supra note 62.

71. Impact of Media Coverage, supra note 52 at 64
(statement of Lynn Marks).

72. Charlotte Carter, ia i the on _ (USA:
National Center for State Courts, 1981), 21;1gpgct 9f Medi_
Qoverggg, note 52 at 50 (statement of Ellen Guyker);

Child Sexual Apu§§_!igtig§, pgppg note 60 at 146 (testimony
of Gary B. Melton, on behalf of the American Psychological

Association and the Association of Psychology. Excerpt from
published book).

73. Carter, spppg note 72 at 21.

74. Child Sexggl Abuse Victims, supra note 60 at 147
(statement of Gary B. Melton).

 

165

75. Letter from Ernie Schultz, acting president,
Radio-Television News Directors Association, Washington,
D.C., to the author (November 3, 1986) (discussing free
press - right to privacy); lppgct of Media Covergge, guppa
note 52 at 81 (statement of Ed Godfrey); Rowland gupra note
14 at 303 (citing Burgess, Holmstrom, and Groth, nggi

ower er d Se ualit , 134 Am. J. Psychiatry 1239-1243
(November 1974)).

76. Letter from Ernie Schultz, gpppg note 75; lgpact
of Media Covgrggg suprg note 52 at 81 (statement of Ed
Godfrey).

77. lppggp_pf Magia Covgrage, §gppg note 52 at 81
(statement of Ed Godfrey); letter from Ernie Schultz, supra

note 75 ("Rape victims should not be regarded by our society
as any different from victims of armed robbery. Once the
stigma vanishes so, too, do the problems of trial
coverage").

78. Rowland, supra note 14 at 303 (citing Burgess,
Holmstrom, and Groth, BQPet Power; Anger, and Sexuglity.
134 Am. J. Psychiatry 1239-1243 (November 1977)).

79. Letter from Carolyn Stewart Dyer, §upra note 63.

CHAPTER 8
FINDINGS, IMPLICATIONS, AND REWATIONS

FINDINGS

The witness is a delicate, yet vital part of our
judicial system. Without the cooperation of witnesses, the
justice that our society deserves can not be brought forth.
The guarantee that the defendant shall be confronted by
witnesses against him/her, as well as other rights for the
accused, is embedded in our Constitution. The founding
fathers outlined privileges for the accused so that all
individuals would be assured equal protection under law.
However, in the efforts, to preserve the rights of the
accused, the framers of the Constitution provided no rights
for witnesses, or other trial participants, who became

involved in judicial proceedings.

Should trial witnesses have a right to privacy under the
fourth amendment?

It is clear that the fourth.amendment, as currently
interpreted, cannot extend privacy rights to witnesses.
flzifipplg_lxi__§pnpggtigpt clearly states that the fourth
amendment cannot be regarded as a general right to privacy;1
and, as Robert Weiss pointed out, even if a witness were

protected by the fourth amendment, iggtimonz (evidence)
166

‘u

 

167

would not be considered an unreasonable search by the state
or federal government.2

Individual privacy rights do exist, but not in the
courtroom. The four types of privacy invasion cannot be
claimed by witnesses who reveal personal or intimate
information during the course of a ‘ppplig trial, which is
open to the public, press, and in many instances, the
extended media. Claims that a person’s privacy is invaded
through pisgppppppigpipp by a television station is unlikely
since the ppppi approves extended media coverage of the
court proceedings in advance; thus, the witness cannot
argue that a profit-making newspaper or television station
used the individual’s name, picture or image without proper
consent.3

The extended media also can not be accused of
invasion of privacy by means of igprpsipn. 'First of all,
the "intrusion" would not involve an ppinvited party, as the
state and presiding judge approves of the extended media
being present. " A courtroom is a public place; and as
Prosser and Keeton explained, a right to privacy does not
exist in a pmhlig place.4 More important, however, is that
two significant factors in intrusion claims are not abused
in any way: the pggpg used to Obtain the information are

aural and/er visual equipment specifically approved by the

168

state; the ppzppsg for obtaining the information is to
inform society about a public matter.

Though. pphlig gigglpfippg makes known true private
facts,5 remedies cannot be rewarded to a plaintiff. Il'he
publicized fact must be a pzixgpg fact. It would be
concluded that though inpipgig, and at one time private, the
information was obtained in a public setting, in the
presence of other strangers, and recorded in a public
transcript, thus, it would no longer be a ppixgpg fact by
the time the media publicized the information. The appellee
could also successfully argue that the public had a
legitimate interest in receiving the information.

Lastly, invading personal privacy by placing the
witness in a. fglgp light in the public’s eye cannot be
claimed by a witness whose actual testimony is publicized by
the extended media. Publicizing the photograph or
aural/visual testimony of a person is ing information, and
hence the media is not connecting the witness with a false
statement or situation.6

‘Witnesses also lose their individual right to
privacy because of privileges accorded the media through the
first amendment. The press believes it is their responsi-
bility to be the eyes and ears of the public, with the

freedom to publicize all information that is deemed

169

newsworthy. Although there are instances when the press can
legally be restrained from publicizing information, it is
only in the most extreme circumstances. The freedoms
granted to the press were reaffirmed in the Ngar v.
Mihhgsgig decision, which stated that a free press is a
liberty safeguarded by the fourteenth amendment due process
clause.7 Reporting on the activities of court proceedings
is one of the privileges protected by the first and
fourteenth amendments. If the press publicizes information
and testimony that is part of the court transcript -- a
public record -- then a trial participant cannot claim that
their privacy has been invaded.8 An individual also cannot
sue for invasion of privacy against a media entity if the
sigpg does not take the necessary precautions to avoid
having certain information made public.9

Since witnesses cannot be afforded privacy
protection by means of the fourth amendment, and the Supreme
Court has ruled that states may permit aural and/or visual
coverage of trials,10 it is up to the state legislature or
top court when devising guidelines, the presiding judge,
attorneys, and even the media to consider the benefits and
the consequences that extended media coverage may have on
witnesses. The majority of state courts require the consent

of the presiding trial judge before the extended media may

170

cover a case; as of 1987, only nine of the forty-three
states which allowed aural/visual coverage required the

consent or objection of parties or witnesses.11

In what classes should privacy interests be considered?

The media is most likely to suggest that witnesses
not be classified or distinguished for the purpose of
granting varying degrees of privacy. The press feels that,
in most circumstances, it is necessary to cover aurally
and/or visually all witnesses in a trial in order to present
a fair and clear news report. They argue that it is a
witness’ duty to come forward and participate in the public
proceedings regardless of personal inhibitions.12 However,
in instances where a state has given specific witnesses a
say in whether or not they oppose extended media coverage,
media advocates favor objection requirements over consent
rules; this allows easier access to trials by the extended
media because the presiding judge approves aural and/or
visual coverage before the witnesses are allowed to submit
statement objecting to extended media access, and only in
special situations is the judge likely to reverse his
approval. However, an (ingixigpgl witness may be protected
by the court to avoid intimidation by the counsel in a

number of ways, regardless of the objections from

171

attorneys.13 This protective order may then also shield the
witness from having private facts exposed to the press. For
instance, the judge may deny the questioning of the witness’
residence and employment status. Thus, the press could not
report these facts (unless obtained elsewhere) since the
information is not allowed during the witness examination.
Victim/witness advocates feel certain classes of
witnesses should be exempt from extended media coverage. It
is argued that witnesses are not trying to hide information
when he/she seeks to keep facts private -- either by
avoiding extended media coverage or refusing to testify--
but, only trying to preserve their dignity and reputation.14
Many witnesses have already been affected emotionally in
some way -- an adult fighting for custody of his/her
children, a rape victim, a police informant, a relocated
witness, a young child witness to a crime, or an individual
threatened with physical harm if he/she testifies -- and
fear the consequences that the added exposure may cause.
Every individual experiences trauma, fear, and humiliation
differently, and what may be uninhibiting to one person may
be terrifying to what seems to be an equally stable
individual. Victim/witness advocates feel that at least
rape victims, children, and relatives of victims should be

exempt from extended media coverage.15 If these individuals

172

cannot be exempt from coverage automatically, then
victim/witness advocates would like to see witnesses given
more control over their participation in the trial
proceedings.13

The one class that the majority of people feel does
deserve ppne form of privacy protection are victims of rape.
Judges, lawyers, victim/witness advocates, and even members
of the media realize the trauma rape victims experience is
often a lasting, painful, and humiliating feeling.17
Publicizing the plight of the victim can hurt the victim
even more, causing them to experience revictimization.13
Victim advocates argue that publicizing the victim and the
explicit details of the assault through the extended media
adds nothing pertinent to a news report; and contrary to
other opinions, the advocates stress, the crime of rape and
its social stigma will not diminish as a result of
publicizing a rape trial.1° As one rape victim commented,
“the victim has been manipulated, invaded and controlled by
a criminal. The media does not have the right to assault
the victim again.'30

The rape victim suffers a two-phase post traumatic
stress disorder, which disrupts the individual’s
psychological, physiological, and social well-being in a

variety of ways.31 The stressful and often humiliating

173

process of taking a rape case to trial adds to the trauma
the victim has already endured. In some instances a rape
victim must relive her assault over months, or even years,
while the case slowly makes its way 'through the judicial
process. During the trial the victim.may be subjected to
humiliating questions, attacks on his/her reputation,
lifestyle, and sexual history, and be forced to relive the
assault mentally. There is a need for the people
surrounding the victim not to compound the core issues of
the trauma, and allow the individual to be self-determining
again.22 Exempting rape victims from extended media
coverage is one way of helping the victim cope with the
assault and its aftermath.

Rape, as are most serious crimes, is generally
considered a felony, either by a statutory provision or
because a guilty party is punished by being imprisoned in a
state prison.23 The state becomes a party in the case,
while the victim serves as a witness for the state. The
purpose is to redress a wrong done to fipgiety. However, if
a rape victim, or other type of victim, pursues civil action
the state is no longer an interested party. Thus, in civil
court a victim has more control over the proceedings by
being able to have a say in how the accused should be

“punished" -j in civil court monetary awards may be allowed

174

for physical injuries, mental anguish, humiliation,
embarrassment, or the maintenance and support of a resulting
child.14 Victims could feel in even more control during
civil proceedings if given the opportunity to determine if
the extended media will have access to the proceedings.
Victims involved in the criminal trial process already have
little control over the proceedings since they are merely a
pitness for the state; denying the victim/witness a direct
say in whether or not he/she wants to be covered by the
extended media leaves the individual with no control over
any aspect of the trial, which concerns a crime committed

against their pgp person.

When should the media’s right to free press outweigh the
right to privacy?

There are still those who believe, the balance
between a free press and a right to privacy should tilt in
favor of the media. Not permitting extended coverage of
certain witnesses may suppress pertinent information that
the public should know. Eliminating coverage of some
witnesses may also result in an unbalanced representation of
the trial. The media argues that since the public cannot
always witness public events first hand, as guaranteed in
the Constitution, the press has a responsibility to

publicize information that is newsworthy. This philosophy

175

was affirmed in such cases as 90; Brpaggggiihg, Richmong
Newspapgr, and §p§.35 The press contends that "invading
the privacy” of an individual involved in court proceedings
is sometimes necessary and worthwhile in order to preserve
the checks and balance system of our government}6

The media and other press advocates also believe the
first amendment free press clause should outweigh the right
to privacy when information in a trial may be educational to
the public. Many members of the media argue that the public
is not educated adequately about the judicial system;
publicizing trials aurally and visually will enable the
public to gain a greater understanding about the judicial
process -- other than what is absorbed from viewing
fictitious television shows -- and increase the public’s
confidence in our legal and judicial processes.27 Trials
covered by the extended media can enlighten the public about
particular crimes such as rape that are often misunder*
stood.28 Publicity of a trial proceeding can also help a
case. An individual with information regarding the alleged
crime may only learn of the proceedings through the extended
media, causing the individual to come forward with the

information.39

176

If a videotape, still photograph, or audio recording of a
trial brings physical or emotional harm to a witness or
victim, who is held responsible?

Because witnesses lack privacy rights there is
little that can be done if extended coverage of a particular
witness causes him/her to suffer physical or emotional harm.
It is the responsibility of the state to establish concrete
guidelines to assure privacy protection of specific
witnesses; if the state or presiding judge does not take
measures to shield witnesses from extended media coverage,
than the media is free to report on the proceedings that
take place in the open court.30 Also, in criminal cases a
victim is merely a witness for the prosecuting party (the
people of the state); thus it is the interest of the state
that is most important, not the interest of the witness.31

Even with just cause, it would be difficult for a
witness to blame the extended media for physical or
emotional injuries sustained. Too many intervening factors
would be present -- cross examination, the courtroom, a
jury, an audience, etc. -- to determine whether the injuries
were truly the result of aural and/or visual media
coverage.33

Since the media is rarely restrained from
publicizing particulars of a trial, witnesses must rely on

the ethics of the press, and hope that each reporter and

177

editor will hold themselves responsible for the consequences
of extended coverage. Opponents to unrestricted
aural/visual coverage of trials argue that the media should
stop looking at the first amendment as an absolute right,
and begin looking at the needs of the individuals. One
television journalist said,

we need, along with our print colleagues,

to stop assuming that the First Amendment

is the only, the sole constitutional value

enshrined in our system. . . . I

sometimes believe that we journalists

sometimes use the first amendment the way a

diplomat uses his passport when he’s

stopped for drunken driving -- a way to

claim immunity from the consequences of

what we do.33
NBC reporter Jim Plante adds that the press has a
responsibility to remember that their function as a watchdog
is to pgpppi news, not pgkg news:

You see, once we begin to try and save

society, once we start writing for the

purpose of effecting a specific result,

we’re no longer reporting. What we’re

doing is manipulating.34

However, other advocates of extended coverage of
trial participants believe the press should not be held
accountable ethically for the consequences of aural and
visual coverage of a witness.35 Advocates argue that the
media is reporting newsworthy information and does not

exploit trial proceedings through the extended media.

Norman Davis reasoned,

178

Opponents of televised trials often decry
the “spectacle“ of the "trial conducted in
an arena," but so do the advocates. A
trial unfolding before 100,000 people in a
stadium or colosseum.is a phenomenon far,
far different from one conducted in a
decorous courtroom under careful rules with
100,000 people looking on from their living
rooms. The first is spectacle; the second
is witness. . . . Notorious trials there
certainly are, but courtroom television
didn’t invent them and television doesn’t
cause them.36

With regard to the freedoms the press has in how they chose
to disseminate the aural/visual coverage of a trial, Ed
Godfrey and Ernie Schultz concluded,

As Chief Justice Warren Burger has written,

"For better or worse, editing is what

editors are for; and editing is selection
and choice of material."37

Is the public educated as to how our court system works by
viewing a thirty or sixty second news report?

Studies show that very few trials are broadcast in
any detail; most trials have been covered by the extended
media in the traditional news fashion -- a fifteen-second to
thirty-second voice-over, with the video providing a pan of
the courtroom, and close-ups of the defendants or
attorneys.33 Media advocates argue that this -- or any
type -- of coverage is educational to the public. The many
types of proceedings that can be covered in civil and
criminal court can enlighten all social classes about the

court system, the criminal process, how trial participants

179

are treated, what changes need to be made in the legal or
judicial system, and the consequences of crime.39 Trials
covered by the extended media will also allow the public to
see a realispig view of the legal and' judicial process, as
opposed to viewing only television programs.40

Research, however, offers conflicting ‘views on the
educational value of televised trials. For instance,
although a study found that a majority of people said they
learned more from news reports that included aural and/or
visual coverage of trials, the study also reported that
individuals who responded that they learned about the same
were equal for those who saw extended media news reports and
those who saw only traditional news reports.41 One survey
revealed that the press and judicial/legal profession agree
that the media should educate the public,"2 but other
surveys show that judges and attorneys worry that because
the extended media tends only to cover sensational trials
the public will get a distorted and unrealistic view of
court proceedings.n

Victim/witness advocates argue that a thirty second
excerpt of a trial that is aired by the broadcast media is
not intended to educate, but rather to satisfy the public’s
curiosity.44 Short excerpts of trials, edited by reporters

to fit the time constraints of television, could create an

180

imbalanced and distorted picture of the trial.‘5 There is
also concern that this selective broadcasting could provoke

imitation acts or deter people from reporting crimes for of

publicity.46

IMPLICATIONS

Social and technological changes through the years
have caused private citizens to value and protect their
privacy. Even the astonishing advancement in the mass media
has begun to affect the general public. Unfortunately the
modern-day press has the technology, as well as the right in
most instances, to publicize events that are considered
newsworthy, including court proceedings, regardless of how
the concerned parties feel about the exposure. With forty-
five states now permitting some form of extended media
coverage of court proceedings, it is no wonder some trial
participants are reluctant to cooperate with the judicial
system.

When an individual seeks the limelight he/she
voluntarily gives up -- to some extent -- their right to
privacy. Other individuals, however, unwillingly become
public figures due to unavoidable circumstances. A person
does not ask to be victimized, to become a witness in a

public trial, and to have strangers, in and out of the

181

courtroom, learn about intimate or tragic events of the
person’s life. Yet the media may decide these types of
events are newsworthy and should be made public to all
citizens who might find the information of value. Thus,
individuals lose much of their right to privacy because the
,nedia, not the ingixignal, decides to publicize the event.

This problem multiplies in the courtroom. First a
witness must deal with the press and extended media turning
him/her into a public figure. Additionally, the witness
must contend with the fact that any information entered into
the court record is considered public information, and hence
may be reported by the media. No matter how intimate or
humiliating testimony may be, if the court sets no
guidelines prior to the trial, a witness must endure the
actions of the press. It would be frustrating to learn that
facts normally considered private and unimportant to piherg
(such as a person’s spending habits or sexual history) are
suddenly considered public information and newsworthy just
because the facts were revealed in an Open court. The media
could argue correctly that the private facts were made
public in court hgfgze the media made the information known,
and thus the media merely reported pphlig facts!

States try to preserve some privacy rights of

witnesses by implementing guidelines to be followed by the

182

court and the media when extended coverage is permitted.
Victim/witness advocates want to see more states implement
consent rules requiring the approval of the witness even
before the court approves extended Coverage. The media
argues that this type of consent places important decisions
in the hands of individuals (the witnesses) who are only
concerned with phgi; pup inigpggpg. However, whose interest
is the media looking out for when trying to gain access to
courtrooms? The media too are only concerned with their

own interests -- reporting news. The cry from the media
that consent rules could literally keep courtrooms closed to
aural and/or visual coverage is moot. With thirty-six
states now permitting extended coverage of trial and/or
appellate courts, and allowing access to most types of
proceedings, it is unlikely that the extended media will
.gve; gain access. If the media uses their access right
responsibly they will have numerous cases to choose from.
Granted, if a television station only petitions to cover
rape and murder trials, and are repeatedly denied access, it
would feel that the media was not bring treated fairly.
However, if the station petitioned fill the courts, such as
small claims court, traffic court, and appellate court, in
addition to the titillating criminal cases, and if the

court and attorneys properly explained the procedure to the

183

individuals involved, access would be granted in some
instances to the television crew.

The qualitative difference test, which.may be used
in phjggpiph,;pgpg§p§, is the guideline preferred by much of
the media. The press accepts the reasoning that a judge can
determine if extended coverage should be permitted by
comparing the different trial participants, and how each
would likely react to the traditional news media and to the
extended media. It is difficult to understand how a jpggg
could be best qualified to make such a judgement that is
based on the mental and emotional stability of a person. No
two individuals act alike (superficially or subconsciously),
witness and remember a crime in the exact same way, or react
to and recover from personal trauma identically. The
potential forquxigiimiggpigp does not seem.to be considered
by most judges when determining if extended coverage should
be allowed.

The media also stress that giving witnesses the
opportunity to deny extended media coverage of themselves
may result in a distorted view of the trial since all
testimony will not be made public. The educational value,
it is argued, is lessened since the viewing audience can not
hear all the arguments and testimony that is considered

relevant to the case. Yet editors and reporters routinely

184

summarize, interpret, and edit trial proceedings that may
last hours, days, or weeks into a thirty or sixty second
news package.

The media also contends that publicity of all trial
testimony will help to lessen crimes and remove stigmas
associated with crimes, particularly rape. How a woman is
going to stop the stigma of rape by having her identity and
testimony against her wishes, as well as the defendant’s
testimony, widely publicized is unclear. The stigmas
associated with alcohol, venereal disease, and AIDS have not
been lessened through public service campaigns -~ alcoholics
are still seen by many as unrecoverable, people inflicted
with social diseases such as herpes are seen as being sexual
deviants, and AIDS patients are seen as homosexuals or
intravenous drug users. It is true these messages reach and
influence a small portion of the population; but for the
most part, people remain ignorant because once a belief is
set in one’s mind it is difficult to change it, no matter
how many facts or figures are presented. So it seems
unlikely that a thirty second television news report or a
two-column newspaper story with a photograph will enlighten
the public enough to change their mind about the stigma of
rape ~~ especially in the case of an acquaintance or date

rape .

 

 

185

The less-educated individual relies more on the
broadcast medium for information about politics and current
affairs than do the better-educated.‘7 Thus, negative
results may actually be occurring when portions of trials
are televised: the less-educated are p91 educated about the
judicial system due to the style and length of coverage the
extended media gives a trial; editing techniques and report-
er summaries may inadvertently send false or conflicting
information to the less-educated viewer. However, the
better-educated rely on the print medium for their infor-
mation. Newspapers describe and interpret news, such as
court proceedings, in hpgh more detail than a television
station is able to do. Ironically, it is the egpggpgg
individual who is actually receiving the educational news!
‘If the aural/visual media truly is concerned with educating
the public, then reporters, editors, and news directors
should change the style of news reports in order to meet the
educational needs of their audience.

Also, if education is a primary concern, the
stations and networks who run trials in their entirety would
cover all types of trials, not just the most exciting or
entertaining. When a television station runs promotional
teases to lure people to watch trial proceedings -- such as

CNN did during the New Bedford rape trial -- education is

186

not their motivating factor. Encouraging the viewers to
watch a “controversial courtroom drama", and giving them the
opportunity to watch. reruns of selected portions of the
trial suggests that entertaining 'the audience while
increasing ratings is most important. A CNN producer
claimed that the increased ratings proved that the publicis
interest was being served.‘8 But was it an educational or
voyeuristic interest that was being served? Would the
interest have been as great if CNN had not encouraged
viewing through the promotional ads? If education is the
ultimate concern of the media, then their behavior should be
as enthusiastic when covering a day in traffic court or
small claims court. Would a television station run
promotional spots and rerun segments of the court
proceedings so that the public could find out whether a man
really was guilty of going forty miles .per hour in a
twenty-five mile per hour zone?

Another member of the media compared the ratings of
the New Bedford trial to the ratings of soap operas;49 such
a comparison seems inappropriate. Our judicial system is a
‘zegl and vital part of our society, while soap Operas are
only cheaply produced, fictional entertainment. Television
programs are meant to entertain and provide the viewer a

vicarious experience. Televised court proceedings are

187

supposed to be newsworthy information. It is unfortunate
that the trauma of private citizens may be turned into
gnigzpainmgnt, acting as vicarious thrills for the general
public.

The media often suggest individuals who fear
extended coverage of trials have never set foot in a
courtroom. Thus, the press contends, how can opponents
argue that trials are sensationalized and trial participants
are traumatized when most of these opponents have never been
a part of the judicial process themselves? But the same can
be asked of the press —- how many reporters and camera~
persons have been involved in a court proceeding to know how
a participant feels? Editors and news directors do not
gpxg; the news, they assign reporters to do so, yet it
seems to be newspaper editors, news directors and general
managers (who are even less involved in the news-gathering
process) who are making the comments about opponents phi
ever setting foot in courtrooms!

One man told the Senate Subcommittee on Criminal Law
that life is not always fair, and it is the media’s re-
sponsibility to report newsworthy events.50 It is true
that everything cannot be fair in life, which is why rules
and standards are implemented so that we can at least pry to

be as fair as possible. Ethics are one way that people

 

188

strive for fairness. The media has a number of ethics
written on paper, but seemingly not always carried through
in their work. If the media continues to ignore ethics, in
its effort to be the public’s watchdog, not only will
society fear that our government has become "Big Brother" by
having access to our every move, but also that the piggs has

become a ”Big Brother" for the very same reason.

RECOMMENDATIONS

Giving the public the opportunity to see and/or hear
court proceedings could help educate and inform citizens
about our criminal justice system. The extended media is
the obvious choice to act as a liaison between the courts
and the public. However, steps must be taken to insure that
the complicated court process is covered accurately,

completely, and ethically.

 

The Media
1. A short video and/or audio snippet of a trial does
not inform or educate the public. This familiar style of

news reporting does nothing more than show an exciting
portion of testimony from a witness. However, if larger
segments were shown, along with explanations of the

proceeding, valuable information could be passed on to the

189

public. An ideal way to cover court proceedings would be
for a local television station to develop a public affairs
show designed specifically to inform and interpret current
judicial proceedings.

A weekly half-hour program, hosted by a newsreporter
who covers the criminal justice “beat“, could highlight a
different type of court proceeding each week. A number of
excerpts (longer than sixty seconds) from the trial would be
aired, including testimony, opening and closing statements
of the attorneys, comments from the judge, and the verdict.
A panel of guests, such as a defense lawyer, prosecuting
attorney, and judge, would be asked to interpret and analyze
the cases. The trial process, roles and actions of various
trial participants, rendering a verdict, and the sentencing
process are just a few of the important and newsworthy
topics that could be discussed. The trial would not have to
be shown in its entirety since competent legal professionals
would be “reporting" on the court proceeding, not a re-
porter -- whose main interest is to squeeze a news fixepi
into a news pgppxi. There would be less room for error and
misinterpretation if a five minute segment of testimony was
aired and analyzed by a panel member, than if a general

assignment reporter attempted to summarize four hours of

190

testimony into a twenty second news spot on the evening
news.

Of course, the panel would not have to be restricted
to law professionals; it would also be enlightening to have
a doctor describe how it was determined that a particular
kind of knife caused a wound on a victim, or to have a
mental health expert explain the characteristics of typical
offenders of a particular crime. Trials that are less
captivating to the viewers can also be informative. A
police officer can explain how a radar detector works and
why a plaintiff could not convince the court that the
detector was inaccurate. Tenant advocates and landlords
could discuss why a renter was not entitled to compensation
for negligence on the part of the owner when an apartment
flooded. City or state officials could offer explanations
regarding a case involving the legality of a city ordinance
or state law. The opportunities to serve the public
interest are endless since no two court proceedings will
ever be exactly alike and there are so many different

aspects of one trial to analyze.

2. A reporter who truly understands the judicial
process should cover the court system. A news reporter who
does not understand the legal and judicial process fully
cannot be assured of interpreting the proceeding accurately

and properly.

191

3. Video and/or audio portions of the trial should only
be used if the inclusion will best explain or illustrate the
main topic or finding during the day’s proceedings. Witness
testimony should not be aired if its only purpose is to

satisfy the public’s curiosity.

4. The identification of some trial witnesses is also
unnecessary during a news report that is suppose to inform
the public about the over-all activities of the newsworthy
event; publicizing the name or photograph of a witness will
not help bring justice to society, but only serve to anger
or humiliate an individual who would normally be considered

a private citizen if not involved in a trial proceeding.

5. Potentially sensational trials should be covered
with extra caution. Often times a witness is also a victim
who must recount unpleasant events in an open court; it is
not uncommon for the witness to feel that he/she is actually
the one on trial. The reporter must not focus on the
details of the witness’ testimony, since this is not the
most important part of the trial. The defense of the
accused should be emphasized, as well as the opposing

arguments presented by the prosecuting attorney.

 

192

6. Many actions taken by the media are a result of the
role ethics play in the reporting and decision-making
process of reporters, editors, and news directors. In a
time when instantaneous media can capture and expose any
event to any person, ethics should become a major part of
the decision-making process. Though glamorous to outsiders,
the broadcast industry is extremely competitive. Beating
the opponent -- another network, station, reporter, or media
entity -" increasing the audience, and making more money has
become more important than broadcasting in the public
interest (the original intention set forth by the
Communications Act of 1934).51 In their quest to be number
one the press must begin to pause and consider the effects
that the news story will have on the viewers and the
individuals connected to the news event. Pause and
reflection should become a routine step in news reporting“-
just as covering the story, viewing the video footage,
writing the story, editing the video, and cutting the audio
track is routine. Pause and reflection should definitely
fall between viewing the footage and writing the story, but

also can be considered during the entire reporting process.

7. When victims are testifying at a trial the

individuals involved in the news-making process must 9 t

 

193

attempt to put themselves in the place of the victim and
then conclude extended media coverage would not be harmful.
A reporter is not qualified to determine who may or may not

be harmed by extended.media coverage.

8. News-gatherers should also reflect upon ethics when
editing trial footage, and when promoting the upcoming news
report. The sequence of events that take place during a

trial are very important. Editors who tamper with the
original order of the proceedings, by flipping a sequence
around for the purpose of producing a news report which
flows better, mislead the public by misrepresenting the
trial. For example, a local television station aired a
report about a man being tried for the death of his infant
daughter. As the audio portion of the report began to
describe the testimony of the hhlg defendant the videotape
showed a young woman exiting the courtroom, walking to a
bench, sitting down and burying her face in her hands. No
explanation was given as to the role of this woman in the
trial. The report continued with a stand-up of the reporter
detailing further the day’s activities. As the report was

concluded the exact same footage, that was shown before, of

 

the distraught woman leaving the courtroom, was aired. At
no point were the viewers told why the emotions of the woman
were a part of the report. What was the purpose of showing

the same footage twice -- was it because the camera person

194

did not shoot any other footage; did a novice edit the
report; or was it because of the expressive pain that the
woman was revealing in a public place, at a news worthy
event, making her actions fair game? ‘Regardless of why the
footage was used, it should not have been since it added no
news value to the report; all the footage did was exploit

the trauma of an individual. If for no other reason, the
news director should not have allowed the report to air as
it did because of how it was edited. In order to show the
same video twice, the editor had to tamper with the natural
sequence of the trial. Though in this instance no real harm
was down, it does illustrate how the media can manipulate

events to fit into their preferred style of news reporting.

The Court

Ultimately it is the state who 1 controls the
extended media’s access to judicial proceedings. Specific
guidelines that the press must adhere to can help eliminate
many of the problems that are foreseeable when trials are

covered aurally and/or visually.

1. If state guidelines grant privacy protection to
certain witnesses, then guidelines must also be implemented

to assure that the media honors privacy interests. When

195

broadcasting a trial live a simple solution, that most
broadcasters would likely agree to, is the seven or fifteen
second delay that is used in live television to edit
material quickly before it reaches the viewing audience. If
the state requested that the name of a witness be left off
the court record, or arranged for pseudonyms to be used,

then the delay function would insure that the privacy rights
were fulfilled if the identity inadvertently had been made
public during the proceedings. Since the court has control
over what trials will be open to the extended media, what
witnesses can be photographed or recorded, and what type of
lighting and cameras are permissible, it seems that the
court -- if specified in the official state guidelines--

could also enforce the use of a delay mechanism.

2. . Requesting that a trial actually be taped delayed is
another option. Previewing the trial before it aired would
enable the court and the media to determine if certain
material should be removed. Not only would this assure that
certain names and faces were not exposed, but also it could
be decided if a disclaimer should run before the trial,
warning the audience of explicit or graphic evidence to be

aired.

196

3. In some cities it may be feasible to develop a
“courtroom channel”, much like the public affairs network,
C-SPAN. The local cable franchise could provide a station
for local public affairs programming. Court proceedings
could be shown in their entirety, either by means of a
fifteen second delay, or tape delayed. Or, if more
feasible, public affairs shows, much like those suggested
for a local broadcast station, could be developed. The same
type of programming could also be done on a local public

broadcasting station.

4. Separate guidelines for criminal and civil court
proceedings could also be developed. In criminal
proceedings the siaig is one party, thus it makes sense that
the state should have much of the control over the extended
media coverage of a trial. However, in civil proceedings
the plaintiff is an indigigpgl; the guidelines should allow
the opposing parties, not the state court, to decide whether

aural and/or visual coverage should be permitted.

5. If specific guidelines are not implemented by the
state to safeguard certain classes of witnesses, then a
judge should consider placing a protective order on certain

witnesses. If a judge determines that a witness may suffer

197

emotional trauma from having to testify, the protective
order can stop an attorney from questioning the witness on
some private facts; reporters would not be able to publicize
intimate or private facts if not disclosed during the court
proceedings. Of course, the press would be free to report

such information if obtained in another (legal) manner.

6. Thorough testing, research, and evaluations of
extended media coverage of courtrooms should be required by
the courts not only during a state’s experimental phase, but
also after permanent coverage has been adopted. Michigan
should not rely on study results from California or Idaho;
every state is made up of a separate brand of people, and
definitely a separate brand of newspersons. Thus, every
state should look at the make-up and needs of its own
population, and each county or district court should then
examine its defined population even more; just as each state
is different, each county and city within a state have
differing concerns also. A detailed record of what type of
trials are covered should be kept by each court: what
extended media covered the trial, how many days the trial
‘was covered, what participants were focused on, and if
‘possible, how the footage was used. Questionnaires should

be filled out by each trial participant, before and after

 

198

the trial, to determine how they may have been effected by

the presence of extended media equipment and the coverage.

7. The request applications -and the participant
questionnaires should be reviewed on a regular basis. If it
is found that the media chooses only to cover sensational
trials, then measures should be taken by the court to
encourage coverage of other types of proceedings. Or, if
the questionnaires reveal that victims/witnesses, in
metropolitan areas prefer their trial to be covered by the
extended media, while victims/witnesses from rural
communities fear the publicity, then the judges in each
different court should be given the discretion to increase
or decrease the extended media coverage as seen fit. A re-
examination of the court rules, media guidelines and
subsequent behavior, and the opinions of the people involved
in court proceedings could be useful in other ways as well.
For instance, it may be determined that some courtrooms are
not functional for use by the extended media, perhaps
because the courtroom is too small, or because of the
physical arrangement of the room. It may also be revealed
that distractions are caused by a particular videocamera
that makes a clicking noise when the operator repeatedly

turns the camera on and off. The official state

199

guidelines could easily be modified as needed to best meet
the interests of the judicial system, the media, trial

participants, and, of course, the general public.

8. States should reevaluate the use of the qualitative
difference test, or the like, when determining if a witness
should be exempt from aural and/or visual coverage.
Comparing the personality of one person to another "similar"
individual does not seem like the most reliable method for

determining the effect extended coverage may have on a

person. The court system must stop treating trial
participants, especially witnesses, indifferently 'and
equally. Witnesses need to be considered individually,

given the feeling that their concerns and inhibitions do
matter, regardless of how trite others may find their fears.
Even identical twins have different emotions and coping
capabilities ~- thus, it should be understandable how two
witnesses, though similar in many ways and victimized by the
same person, feel differently toward extended media
coverage. However, if a qualitative test must be used, an
experienced professional, such as a mental health worker, in
addition to the presiding judge, should determine the

emotional stability of the witnesses.

 

200

9. The potential size of a viewing audience should be a
consideration when determining extended coverage of a trial
and its participants. It is true that a titillating case
may encourage spectators to pack into the courtroom, perhaps
creating distractions and inhibiting the trial participants.
Allowing the case to be covered by the aural/visual media
may convince some of the curious to stay at home to watch
the proceedings. However, a courtroom can only hold a
certain number of people, while a televised trial can reach
glfllggs numbers of people by means of satellite feeds and
cable. Televising a trial could also actually encourage
people to attend the trial, hoping to get a better vantage
point and to be sure of hearing all the testimony. Certain
witnesses and trials could almost be exploited by the

media who put portions of the trial, along with the

station’s reporter and identifying logo, on a satellite

feed, hoping a larger station -~ or better yet, one of
the networks ~- will use the story on their newscast. If
the potential for media sensationalism exists, the court

should deny or limit extended media coverage of witnesses,
or the entire trial. A routine court proceeding involving a
person accused of drunk-driving would not be titillating to
many of the local television viewers, let alone the people

in a neighboring state, thus, the potential audience size

201

would not be a major concern in deciding whether to allow
aural/visual coverage. However, the trial of an accused
serial rapist, whose victims were attractive co-eds, would
arouse not only the curiosity of . a local television
audience, but also people in other states as well; in this
instance, a Judge would be wise to deny or restrict

extended coverage of the trial, especially the witnesses.

Waldemar:

The state legislature also plays an important role
in helping trial participants keep some of their privacy,
while the media continues to have access to the courts.
Legislation for victims and witnesses, such as a Bill of
Rights (actually standards of fair treatment52), could
provide a person with some protection. For instance, it may
be resolved that the court not require a witness to disclose
in open court his/her address, telephone number, or place of
employment; in some instances the identity of the witness
might also be kept from the open court. Both the
prosecution and defense would be required to adhere to
these standards during their questioning of a witness. A
Bill of Rights for victims and witnesses could also require
that identifying biographical information about certain
witnesses not appear on the public court; instead,

nondescriptive designations would be used.

202

The Education System

It is clear that the public needs to be educated
about the functions of our courts. However, it cannot be
expected that the media and judicial system take on the
entire task. Extended media coverage of trials aimed at
educating the public is a timely and costly process for both
the courts and media.

A simple and inexpensive way to learn about our
courts is through the education system. The Constitution
and the judicial branch of the federal and state governments
is important to understand, yet it seems that these subjects
are barely introduced to students of any age. Elementary
school children learn about important presidents, junior
high students learn about the history of the United States,
and high school students are required to take a government
course that focuses on the legislative and executive
branches of government. College students usually learn
about the judicial system through specific elective courses
offered through a political science department; and when
students do learn about a court, it is generally the
federal and 0.8. Supreme Court system. Steps need to be
taken by schools and colleges to educate students not only
about the federal court process, but also about the state
court process. A greater understanding of the judicial
system will enable citizens to participate in court
proceedings confidently, whether as a defendant, witness,

juror, or spectator.

ENDNOTES

l. Griswold v. Connecticut, 381 0.8. 479 (1965).

2. Letter from Robert Weiss, prosecuting attorney,
Flint, Genesee County, Mich., to the author (October 13,
1987) (discussing free press v. right to privacy).

3. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton,
and David Owen, 5 er and act n o the w of Torts, 5th
ed. (St. Paul, Minn: West Publishing Co., 1984), 851-854.

4. lg.

lg. at 856-857.
Sag Time v. Hill, 385 U.S. 374 (1967).

m‘qflm

99x Broadcasting Corporation v, Cohn, 420 U.S. 469

--*——-———

5
6
7. Near v. Minnesota, 283 U.S. 697 (1931).
8
)

(1975 f

9. Coe v. figrasota -- Bradenton Florida Television,
436 So.2d 328 (1985).

10. Sag Chandler v. Florida, 449 U.S. 563 (1981);
Campinad_§ommanications Corp. v. Finesilver, 672 F.2d 818
(1982). .

 

11. National Center for State Courts, "Summary of TV
Cameras in the State Courts," 3 (January 30, 1987)
(unpublished summary); Four States Start Tests with Camaraa,
11 The News Media and the Law 43 (Fall 1987); Susanna
Barber, News Cameras in the Courtroom: aA,Free Press - gai;
Irial Dabata (Norwood, N.S.: Ablex Publishing Corp., 1987),
18-19.

12. Letter from Ernie Schultz, acting president,
Radio-Television News Directors Association, Inc.,
Washington D.C., to the author (November 3, 1986)
(discussing free press v. right to privacy); letter from
Charles McCorkle Hauser, vice-president and executive
editor, The Provideaca Jouraal-Bulletin, Rhode Island, to
the author (November 5, 1986) (discussing free press v.
right to privacy); letter from Lawrence Sullivan, national
editor, Iba_Detroit Nana, Detroit, Mich., to the author
(October 5, 1987) (discussing free press v. right to
privacy); interview with Timothy Dyk, attorney, Wilmer,
Cutler and Pickering, Washington, D.C. (May 19, 1987).

203

204

13. C.J.S. witnesses §317.

14. Interview with Anne Seymour, director of public
affairs, Sunny Von Bulow National Victim Advocacy Center,
Fort Worth, Texas, in Lansing, Mich (June 4, 1987); Impagt

 

 

 

 

 

 

of Mediaa Coverage of agape Trials: .Hearing Before the
Subcomm, on Criminal Law of the Senate ngm. of the
Qudiciapz, 98th Cong., 2nd Sess. 53 (1984) (statement of
Jennifer Barr, rape victim, rape crisis counselor)

[hereinafter Impacp of Madia Covapage].

15. 1d., 51-52 (statement of Jennifer Barr); Child
We.» ' c 'm Wfi; Lama 6 its:
Subcomm. on Juvenile Justice .of the .Committee of the
Qudiciapz, 98th Cong., 2nd Sess. 95 (1984) (statement of Kee
MacFarlane, director, Sexual Abuse Diagnostic Center,
Children’s Institute International, Los Angeles, Calif.);
Sunny Von Bulow National Victim Advocacy Center, ”Section B:
Crime Victims and the Media," Curricula, n-d.; interview
with Anne Seymour, supra note 14.

16. Carolyn Stewart. Dyer and Nancy R. Hauserman,
Exemption of Sexual Assault Victima, 1 Sexual Coersion and
Assault 86-92 (1986); letter from Carolyn Stewart Dyer,
associate professor, School of Journalism and Mass
Communication, University of Iowa, to the author (May 7,
1987) (discussing free press v. right to privacy); Tmpaap_pf

Media Coveraga, supra note 14 at 49 (statement of Ellen
Guyker, rape victim); Deborah M. Carrow, Rapa: Quigglimea

Tar Community Reappnae (USA: National Institute of Law
Enforcement and Criminal Justice, 1980), 102; interview with
Michael Franck, executive director, . Michigan Bar

Association, Lansing, Mich. (October 22, 1987).

17. impact of Madia vaeraga, §upra note 14 at, 48, 69
(statement of Jennifer Barr, Ellen Guyker, rape victim, Lynn
Marks, executive director, Women Organized Against Rape,
Philadelphia, Pennsylvania); Charles Dean and Mary deBruyn-

Kops, The Qpima and tha Camseguengaa of Rape (Springfield,
IL.: Charles C. Thomas, 1982), 38; Stewart Dyer and

Hauserman, amppa note 16 at 82 (citing K. Heis and 8.8.
Borges, "Victimology and Rape: The case of the Legitimate

 

Victim," in L.G. Schultz, ed., Bane Victimology
(Springfield, IL.: Charles C. Thomas, n.d.), 91-141; Anne
Burgess and Lynda Holmstrom, ,Bape: Victims of Crisia

 

 

(Bowie, MD.: Robert J. Brady, 1974); T.W. McCahill, L.G.
Meyer, and A.M. Fischman, The Aftezmath of Rapa (Lexington,
MA: Lexington (1979)); Thomas J. Morgan, "TV Newsman,
Editor Clash on Rape Coverage Channel 6, Standard Time Part
Ways on Identifying Women,” The Providence Journal (March
22, 1984). Photocopy 1986; interview with Donald Martin,
Ingham County Prosecuting Attorney, Lansing, Mich. (October
14, 1987); interview with Judge Carolyn Stell, 30 Jud
Circuit, Lansing, Mich. (October 19, 1987); interview with

205

Judge Michael G. Harrison, 30 Jud Circuit, Lansing, Mich.
(October 14, 1987).

18. lmpagp of Madia Coverage, ampma note 14 at 73
(statement of Jo Beaudry, coordinator, Victim/Witness
Services, Milwaukee County, Wisconsin).

19. Qoe v, Saraagta -- Emandapton Florida Television,
436 So.2d 328 (1985); Impact of Media Covamaga, amppa note
14 at 82 (statement of Ed Godfrey, president, Radio-
Television News Directors Association); Morgan, supra note
17; Phil Kakielski, "Big Dan’s Judge Assails Media For
Naming Rape Complainant,” he Providence Journal, March 22,
1984, (A)9.

20. impact of Media; Coverage, appma note 14 at 53
(statement of Jennifer Barr).

21. Judith Rowland, The Ultimate Violation (Garden
City, N.Y.: Doubleday and Company, Inc., 1985), 303, 337
(citing Ann Burgess, Lynda Holmstrom, and Nicholas Groth,
Rape: Power, Anger, and Sexuality, 134 Am J. Psychiatry
1239-1243 (November 1977)).

22. 1d., 303.

23. 75 C.J.S. ma §3 (1952).

24. Id. at 93.

25. C9; Broadcasting Corpopation v. ~Cohp, 420 U.S.

469, 492 (1975) (the "function of the press serves to
guarantee the fairness of trials and to bring to bear the

beneficial effects of public scrutiny upon the
administration of justice"). [Richmond Negspaperam_xm

Xirginia, 448 U.S. 555, 559 (1980); Coe, 436 So.2d at 332.

26. impact of Media_§pverage, amppa note 14 at 31-32
(statement of James M. Ragsdale); letter from Tom Johnson,
publisher and chief executive officer, Los Angeles Times,
Calif., to the author (October 28, 1987) ) discussing free
press v. right to privacy); letter from Ernie Schultz, aupra
note 12. Sag aiap letter from Robert Weiss, supma note 2.

27. Accrediting Council on Education in Journalism and
Mass Communications, American Broadcasting Companies, Inc.,
American Newspaper Publishers Association, American Society
of Newspaper Editors, Associated Press, Association for
Education in Journalism and Mass Communications, CBS, Inc.,
Community Television of South Florida, Inc., C-SPAN, Gannett
Companies, Inc., Media Access Project, The Miami Herald
Publishing Company, Mutual Broadcasting System Inc.,
National Association of Broadcasters, National Broadcasting
Company, Inc., National Cable Television Association, Inc.,

206

National Press Photographers Association, National Public
Radio, The New York Times Company, Post-Newsweek Stations,
Inc., Public Broadcasting Service, Radio-Television News
Directors Association, The Reporters Committee for Freedom
of the Press, Society of Professional Journalists, Sigma
Delta Chi, The Times Mirror Company, Turner Broadcasting
System, Inc., cable News Network, United Press International
Company, The Washington Pest, Petitipn Lo Lha_gadicial
Confegamga 9f Lhfi Qaitad States Concerning Visual and Angel

Coveraga of Eaderai gamma Epoceedings by the Electronic and
Print Ezaaa, March, 14 (citing Yankelovich, Skelly, and

White, Inc., e lic e C : Hi ' h s
Nationai Smpgaz at the Genaral Emblic, Judges, La rs, and
Cgmmmnity Laaders, prepared by the National Center for State
Courts (May 1978)) [hereinafter Accrediting Council on
Education in Journalism and Mass Communications, at al.];
letter from Ernie Schultz, amppa note 12; interview with
John Tune, editor, Tmaverse City__Becgrd Eagla, Traverse
City, Mich. (July 25, 1987); letter from Thomas Griesdorn,
general manager, WXYZ-TV, Detroit, Mich., to the author
(October 19, 1987) (discussing free press v. right to
privacy); Norman Davis, e e 's on in Our Courts, 64
Judicature 86 (1980); interview with Judge Carolyn Stell,
aupra note 17; letter from John D. O’Hair, prosecuting
attorney, Wayne County, Detroit, Mich., to the author
(August 11, 1987) (discussing free press v. right to
privacy); Lyle Denniston, The Reportermand The Lag (New
York: Hasting House Publishers, 1980), xix.

 

28. impact of Media. Covarage, supra note 14 at 14
(statement of Ronald Pina, district attorney, Bristol
County, Mass.); interview with Judge Michael G. Harrison,
supra note 17; Stewart Dyer and Hauserman, supra note 16;
interview with Anne Seymour, ampma note 14.

29. Interview with Timothy Dyk, ampma note 12;
Rowland, aupra note 21 at 271-272.

30. .me_Bm9adgaapipg, 420 U.S. at 492; 90a, 436 So.2d
at 330.

31. Interview with Judge Carolyn Stell, amppa note 17.

32. Interview with Judge Michael G. Harrison, ampma
note 17.

33. Jeff Greenfield, political and.media analyst, ABC
News and Good Morning America, “TV: The Medium Determines
Impact of Crime Stories," in Tommy Thomason and Anantha
Babbili, eds., ime V ' and th ews e i , 21, a
synopsis of a national symposium sponsored by the Texas
Christian University Department of Journalism and the
Gannett Foundation, November 13, 1986, (n.d.). Sam aiag
Susanna Barber, ampza note 11 at 109 ("ultimately, a little

207

self-restraint could protect the first amendment freedoms of
the press as well as the privacy interests of sensitive
witnesses"); Bruce Swain, Rappmtamaj Ephiga, (Ames, Iowa:
The Iowa State University Press, 1978), 60 (" ...the law
tells journalists only what they can get away with, not what
is ethical. Reporters are mostly left to their own devices”).

34. Jim Plante, managing director of news support
services, NBC News, New York, “Press Helped By Discussion of
Victim Issues," in Thomason and Babbili, aupra note 33 at 34.

35. Norman Davis, Talevisign ia er Coughs: The
Epgven Advanpagaa, Tha Upprovap Damgeps, 64 Judicature 87

(1980); John C. Merrill, Gpod Reporping Can ha a Soiupion_p9
Ethipal Problems, 42 Journalism Educator 28 (Autumn 1987);
Charles McCorkle, Hauser, ampra note 12.

 

36. Davis, amppa note 35.

37. impagt pf Media Coverage, aupra note 14 at 95
(written statement of Ed Godrey and Ernie Schultz, Radio~

Television News Directors Association, Washington, D.C.).
38. Barber, smpra note 11 at 81.

39. Accrediting Council on Education in Journalism and
Mass Communications, et al., su ra note 27 at 34-40.

40. Interview with John Tune aupra, note 27; interview
with Judge Carolyn Stell, amppa note 17; letter from John D.
O’Hair, aupra note 27; Denniston, supra note 27 at xix.

41. Dalton Lancaster, Cameras in the Courtroom: A
Study of Two Trials, Research Report No. 14 (Bloomington
In.: School of Journalism, Center for New Communications,
Indiana University, 1984). Photocopy 1987.

42. Robert E. Drechsel, News Making in the Trial
Courts (New York: Longman, 1983), 126-127.

43. Barber, suppa note 11 at 70-71.

44. Interview with Anne Seymour, supra note 14; impagt
of Media Coveraga, supra note 14 at 49 (statement of Ellen
Guyker).

45. Interview with Michael Franck, su note 16.

46. impact of Media Coveraga, supra note 14 at 68

(statement of Lynn Marks); Stewart Dyer and Hauserman, amppa
note 16 at 86.

208

47. Citiaens’ Commission To Improve_ Michigahmggappsg
Eimal Report and Recommendations To Improve the Efficiency

and _Resppnsivanaas of Michigan Courts ((Lansing, MI]:
Michigan Supreme Court, 1986), 23.

48. Thia Wash with David Epihhley (ABC television
broadcast, March 25, 1984) (published transcript).

49. impact pf Madia Covaraga, appra note 14 at 34
(statement of James M. Ragsdale).

50. 1a.

51. Broadcast Deregmlation, Congressional Digest 100
(April 1984).

 

 

52. Victim Bills of Rights are actually standards of
fair treatment because there are no remedies explicitly
provided for a victim should the criminal justice system
fail to meet the outlined standards. Sag National
Organization For Victim Assistance, fligtim: Rights and
Serviges: A hagislativa Dimactomy, (Washington, D.C.: U.S.
Department of Justice, 1985), 8.

 

CHAPTER 9
CONCLUSION

"Tell me every detail, I want to know it
all, and do you have a picture of the
pain?"1

There is no doubt that aural and/or visual coverage
of court proceedings can be beneficial to the general
public. However, problems are likely to occur if the media
begins to focus its coverage on sensational trials for the
purpose of attracting viewers and increasing their ratings.
To insure that the press does not abuse their privilege to
provide extended coverage, both the judicial system and the
media must take measures to protect the privaCy concerns of
certain witnesses.

During court proceedings the rights of the accused
are protected, rights of the media are safeguarded, the jury
is shielded from extensive publicity, and the presiding
judge maintains the decorum of the courtroom. However, the
witness -- who plays an essential role in bringing criminals
and offenders to justice -- is often considered nothing more
than a piece of evidence; the justice system.must begin
treating the witness as a human being, not merely as
"Exhibit A". Just as the interests of the other trial

participants are considered, so must the witness’ if the
209

210

judicial system is to rely on citizens to perform their
civic duty.

When devising guidelines for extended media
coverage, the court must allow victims of rape and other
heinous crimes, witnesses of traumatic or life-threatening
events, and children the opportunity to oppose extended
media coverage of themselves, if not the entire trial. If a
judge permits coverage of all witnesses, even if a witness
opposes, then the court should at least protect the identity
of the concerned witness. The name of the witness should be
excluded from the open court, and photographs of the indivi-
dual’s face should not be permitted. The court should also
monitor the extended media’s courtroom coverage and modify
the state guidelines as needed.

Many of the rules and regulations would not have to
be monitored by the court so closely if the extended media
demonstrated that newsworthy information, not a titillating
revelation, was what the press was truly after. How a media
entity reports the news ultimately depends on the value that
the news decision-makers place on ethics. The Constitution,
courts, and legislators outline phat the press can report;
unfortunately bag the news is reported by the press is
basically left up to the discretion of each individual news

medium.

211

The telecommunication industry is continuously
advancing, giving the media more power and ease to gather
and disseminate information. Improved technology,
deregulation of the broadcast industry, and diminishing
ethical standards have caused television stations to become
increasingly competitive. News teams are boasted as being
"the first, fastest, and live with.the news of the day, and
number one in the ratings." Rarely does a station promote
"indepth and complete reporting, intended to serve the needs
of the community.“

The press stands on the first amendment when criti-
cized for its news reporting. The constitutional guarantee
of a free press allows the media to act not only as a
watchdog, but also as a gatekeeper and news maker:

[t]elevision newscasters are not accredited

members of any bar association, .or any

related profession, are not licensed by

Government, or restricted by a legal code

of ethics. They do have the free choice to

edit, capsulize, dramatize, sensationalize

any issue to satisfy the most basic public

appetite in order to generate commercial

demand.3
Murder, sex, money, and intrigue are a part of nearly every
entertainment program on television; the same drama tends to
be the focus of news reports. Without enforced ethics
witnesses covered by the extended media could become just
one more melodrama produced by the evening news team.

Victims of rape and other traumatic crimes should not have

to be re-victimized for the sake of the news -- and ratings.

—-——-n—

 

ENDNOTES

1. Jeff Greenfield, "TV: The Medium Determines
Impact of Crime Stories,“ in Tommy Thomason and Anantha
Babbili, eds., Wilhelm. A synopsis

of a national symposium sponsored by the Texas Christian
University Department of Journalism and the Gannett
Foundation, November 18, 1986, n.d. (quoting the late Phil
Ochs, a journalist before becoming a folksinger).

       

.A.1

. ‘ ‘ . 6 .9 9 1,3 ,A. .i H —" ”J! ;A
W 3 Conn. and the L. 35 (Winter 1981).

212

" “‘37, 1

 

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