Louisiana Insurance Litigation Blog

II. The States and the Louisiana Approach

Based in large measure on the nation’s revolutionary past, states have historically and for some time recognized the value in public access to courtrooms. Presently, and from this tradition, all states subscribe to the idea of “open courts” to at least some degree. Most states have a constitutional or statutory provision announcing that courts shall be public and open with the exception of particularly sensitive proceedings, such as those involving sexual abuse or certain domestic matters, for example, which may be closed to the public upon the court's discretion. Exceptions aside, many states have carved out a niche for the media to operate within the courtroom. This is evidenced through legislative enactments, court rules, and judicial codes of conduct.

While access to state appellate courts is broad, it is clear that state practices at the trial level vary, from the broad allowance in a state such as Florida, where electronic media and still photography coverage of a proceeding is allowed in both appellate and trial courts, to the complete ban in our nation's capital. (In fact, in Florida, the exclusion of the media is permissible only where it is shown that the proceedings will be adversely affected because of a “qualitative difference” between electronic and other forms of coverage. A “difference” apparently not even demonstrated in the circus-like antics of Broward County Judge Larry Seidlin, who presided over the Anna Nicole Smith probate proceeding). A number of states allow for near-unfettered access to both trial and appellate courts with discretion of the presiding judge as the only impediment. Examples of such states include California, Colorado, Florida, Georgia, Michigan, Nevada, and Tennessee, among others. However, as is often the case, Louisiana somehow finds itself left out of the list of states that espouse a progressive social view of their own court systems. Indeed, Louisiana finds itself amongst the minority of states that limit camera access to only appellate proceedings.

The public discourse in Louisiana regarding the expansion of cameras into trial court proceedings has, by all accounts, been rather scarce over the past several years. Anecdotally, in a moment of levity at the July 2003 swearing in ceremony for Judge Maury Hicks, Judge Richard Haik, chief judge of the U.S. Western District of Louisiana, remarked that “‘not only do we not allow cameras in the courtroom, we don’t even allow people to see what’s going on.’”

In 1993 the Louisiana Supreme Court commissioned a study, orchestrated by members of the state bar, to analyze and make recommendations regarding the effects of cameras in the courtroom and to also make recommendations regarding the proper extent of their presence in Louisiana courts. It is the Louisiana Code of Judicial Conduct that sets forth the state’s rules and procedures for allowing cameras in to cover judicial proceedings. Specifically, Appendix 3 to the Code, which was amended and took effect following the conclusion of the Supreme Court study in 1993, allows for electronic coverage of appellate proceedings leaving coverage at the trial level generally prohibited. At the appellate level, obtaining the consent of the involved parties is not required, although the Court may prohibit coverage upon its own motion or if an objection is made by a party. Notice of intent to cover a proceeding must be made at least 20 days in advance or, in expedited proceedings, within a reasonable time before the proceeding is schedule to occur. Further, no more than two television cameras, each operated by no more than one camera person, and one still photographer, using not more than two still cameras with not more than two lenses for each camera, are permitted in the courtroom during proceedings.

Since the institution of Appendix 3 to the Code in 1993, there has been no significant change to or expansion of such electronic coverage in Louisiana courtrooms. This, despite the fact that most other states provide for greater access to court proceedings than does Louisiana. Further, other states have demonstrated a greater commitment than has Louisiana to tracking the effects on trial proceedings and outcomes of such expanded electronic coverage. Iowa and Alaska are but two examples of such other states that have commissioned multiple-year programs to study the effects of cameras in the courtroom. The results of these two studies, as well as others, demonstrated that greater camera and media presence in courtrooms did not negatively impact the performance and/or focus of jurors, attorneys, judges, or witnesses. In other words, in the plain but effective words of Justice Moore, “[a] ‘show-off’ or a ‘strutter’ will be just that whether a camera is present or not. They are readily identified by any person of ordinary intelligence and are ultimately adequately and justly disposed of by the people.”

The variation among the states is further evidence of the ongoing debate over cameras in the courtroom, and suggests that there is indeed room for positive change. It is now the case that the number of states that have adopted more liberal standards, at least at the appellate level, outnumbers those that impose more restrictive standards.

The more progressive approach to allowing cameras in courtrooms taken by most other states, as well as pending federal legislation seeking to expand the presence of cameras in federal courts, discussed in greater depth in a later section of this paper, should be a signal to Louisiana to reconsider the issue. With the recent inauguration of a new governor in this state, who has indicated his desire to take up the issue of ethics in government as his very first priority, there can be no better time for such action.
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