If it ain't broke, don't televise it...

Sorry this is being posted way after the fact!  When I arrived in Shanghai on Wednesday, there wasn't any Internet in our apartment and, worse, it took me a few days to figure out how to activate my VPN and thereby access Blogger.  In any case, here's what I scribbled during the flight about last week's readings:

I hardly know where to begin with a blog post on the acceptability of telecasting courtroom proceedings to the public.  The text of the Sixth Amendment seems like an obvious starting point for a determination of which parties would benefit from—or be disadvantaged by—the implementation of telecasting.  There is an ambiguity, however, in its jointly valuing fairness and publicity, without explicitly acknowledging that, depending on the nature of a trial, these standards might come into conflict with each other.

Logically, fairness should be the paramount consideration, and publicity should be valued only inasmuch as it’s the guarantor of fairness.  Even taking that view for granted, there is still a spectrum of interpretations about the extent to which publicity should be subordinate to fairness.  On one extreme is the minimalist perspective, according to which prevention of magisterial abuses (à la the Star Chamber) is the sole purpose of airing the proceedings.  At the other extreme, there is a rosier perspective that transparency brings about a spike in civic engagement, were the public to take on a more participatory role in the execution of justice.  The intermediate position envisions the public as something between passive observers and adjunct jurors, in that they should in principle be made privy to any trial of their choosing, but that the onus should be on them to seek out said trials.

Yet another definitional difficulty emerges when the concept of a “public” is placed under scrutiny.  Is a trial sufficiently public if court reporters are allowed to sit in, record their impressions, and disseminate them via print—as is already the case?  Is the public limited to those who stand to be directly impacted by the verdict (as with the McVeigh case, where only victims’ families were given access to closed-circuit TV), or does it encompass everyone without regard to one’s interest in the trial at hand?

Perhaps the thorniest issue of all is this one: with whom does the Sixth Amendment right to a “public trial” reside?  Of the three obvious categories of stakeholders, defendants lay the strongest claim to that right—if only because they stand to lose the most, should the functioning of their own trial go awry.  Just because the accused have the most at stake, that doesn’t mean the public, or the judicial system itself, would be insulated from the repercussions of introducing telecasting.

Unless the press is taken to be a proxy for the public at large, I don’t see the public as being adamant one way or another on this issue.  I also think the supposed benefits to their being exposed to real-life trials, as opposed to fictitious fare like Boston Legal, are overstated because they’ll continue to be attracted to glitzy causes célèbres rather than run-of-the-mill lawsuits, and to sordid soundbites rather than gavel-to-gavel coverage.

However strongly the public favors being able to view trials live and in full, and I happen to see that drive as being manufactured, the degree of their support pales in comparison to the federal judiciary’s opposition.  Given the variability of circumstances to a trial—and, more fundamentally, of interpretations to the Sixth Amendment—why not just do away with a blanket prohibition and allow for telecasting on a case-by-case basis, like all but 9 of the state legislatures have mandated for their own courts?

Flexibility has an almost reflexive appeal to it, but libertarianism in the context of a subjective trial carries with it a set of logistical and psychological drawbacks.  I found myself in all but complete agreement with Justice Winter’s stance against telecasting, in his concurring opinion in Westmoreland v. CBS.  The argument that experimentation with telecasting is unworkable, because it’ll soon become the default no matter what, is a tautology on the part of conservative jurists who, for the self-protective sake of not themselves being judged by the public, are loath to open up their chambers. 

That’s why I was won over by Justice Winter’s disinterested reasoning, which touched upon the challenge of selecting an uninfluenced second jury in case of a retrial, as well as the distortional effects on fact-finding that come from the parties’ hyperawareness that they are being monitored.  What troubled me most of all, about doing away with the ban on telecasting, is the potential for improper signaling, whereby a norm will arise that only those defendants with something to hide will refuse to have their testimony be broadcasted to the public. 

Because a case-by-case approach lends itself to such an arms race, I’m on the side of having telecasting be the exception and not the expectation.  Basically I’m not convinced that improvements in technology automatically mandate that the system be updated, while I am very concerned that any such changes would strike against fairness.