• Admissibility of digital evidence:

The 2003 Louisiana Legislature passed Act 1135 amending the provisions of the Louisiana Code of Evidence Article 1001 (3) to provide that digital evidence from palm pilots, the blackberry, e-mail, and related evidence is to be treated as original for evidentiary purposes.

This and similar provisions of the Code of Evidence (e.g. Art. 1003.1) fail to recognize the potential for abuse of digital evidence. The problem with e-mail and any digital evidence is that it may be deleted, altered or preserved incorrectly. There is a presumption of admissibility of electronic duplications in Article 1003.1 by providing “a duplicate may be deemed inadmissable or excluded solely because it is in electronic format”, as will be seen from the following, this is a problem.

We have all heard of there problems in several high profile cases, such as the Enron Case where e-mail evidence was not properly maintained. Other cases of e-mail being preserved improperly or subject to deletion is the subject of inquiries and prosecution for fraud or obstruction of justice. I know I need not cite you to the various corporate fraud cases pending where evidence in digital storage facilities has been altered or improperly maintained. Suffice to say that the full potential for abuse of digital evidence is only now being recognized.

The articles on digital evidence presume that the digital evidence can be clearly identifiable as the original when in fact it is seldom that digital evidence is not changed to the extent that it is automatically re-formatted on the recipient machine. This presentation is not intended to be a technical presentation, but is intended to be one that focuses on problems with digital evidence. Therefore, I will refrain from extensive discussion of technical issues that relate to how evidence on digital formats can be so easily and improperly stored, improperly reproduced, transmitted, deleted modified and in many cases intentionally altered. Instead, this paper will focus on practical legal problems which we have recently encountered in cases.

• The abuse of digital photographs & videos:

Without any doubt everyone is beginning to utilize digital cameras. In reproducing information for digital photographs, it is often the case that the photographs are “cropped” to delete information which the photographer wishes not to have shown, or the quality of the photograph is enhanced with the use of computer programs.

Digital photographs include digital videotapes. Common uses and applications of digital video tapes are the result of defense surveillance videos and plaintiff day in the life productions. When considered as a tool for presenting the plaintiffs case, everyone assumes that the information presented will be in the light most favorable to the plaintiff. Any information which would not be helpful is usually intentionally kept out of the production and therefore is not available for consideration by the jury, the judge or in settlement scenarios. It has become routine however for those who might be involved in considering a day in the life video to ask for the original, unaltered, unmodified or unedited version of the video tape.

The consideration of surveillance video evidence is also potentially problematical because the surveillance evidence will often be prepared by the surveillance investigator in a format that is most favorable to the defendants. The person engaging the surveillance investigator asks for information that would be helpful to the defendant and although the investigator should be taking film of all of the activities of a plaintiff, it is common that the surveillance investigator would fail to provide all of the data and would fail to completely present the information.

An example of selective filming creating an intentionally edited video is seen in the surveillance film which would run for approximately one hour although the underlying data covers several hours.

In our recent case of Edward Charles Washington and Travis Parker versus Aetna Life Insurance d/b/a One Canal Place, Schindler Elevator Corporation, Corporate Realty Advisors, and Zurich Insurance Company, Docket Number 01-9541-C of the Civil District Court of the City of New Orleans, all of the issues with respect to the potential modification of the video tape surveillance evidence was presented to us for defending. The surveillance videotapes of our client taken over more than four (4) hours time, was demonstrated on a tape that lasted only one (1) hour. The surveillance investigator contended that the one hour of information presented showed all he could film during the four hours time because that was the only time he could see our client. The investigator’s contention was that our client could not be seen for filming at times that the tape was not running was obviously incorrect from watching the scenes on the tape and the clock.

Moreover, when questioned about the information not on the tape, the investigator testified in response to questions of the defense counsel that whenever our client was not visible on the videotape, our client was not seen to be holding his neck or his back as if he were in pain.

On cross examination the investigator was not able to account for the missing scenes and his employer had failed to practice a policy of properly maintaining digital video evidence to prevent potential modification. The employer for the investigator did not utilize a system to preserve the chain of custody of the evidence and the integrity of the evidence. The digital video evidence was not logged into a data base, it was not immediately write protected, there was no chain of custody for the information that could be supported by recorder maintenance logs and there was no safe keeping of the evidence demonstrated by the investigator.

3. THE CODE OF EVIDENCE IN ARTICLE 401 AND 403 SETS OUT STANDARDS FOR THAT WHICH MAY BE DEEMED RELEVANT EVIDENCE:

• Article 401 states:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

• Article 403 states:

“All relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undo delay or waste of time.”

The issues with respect to whether a piece of evidence tends to prove or disprove a material fact at issue and whether the evidence is unfairly prejudicial or presents the danger of confusion or misleading the jury is of particular importance when considering surveillance evidence. The potential for abuse of surveillance evidence begins with the potential for videotape surveillance evidence not “accurately depicting that which it purports to represent”.

The fundamental cases of Fryson v. Dupre Transport, Inc., 798 So.2d 1012, 2000-0859 (La. App. 4 Cir.2001); State v. Sartain, 746 So.2d 837 (La. App. 4 Cir.1999), rehearing denied, writ denied 769 So.2d 4; Ibieta v. Star Casino, Inc., 720 So.2d 143 (La. App. 4 Cir.1998), writ denied, 735 So.2d 635 (La. 1999) and similar cases all speak to the issue of whether or not that which is presented on the video tape “accurately depicts that which it purports to represent” as fundamental before the video tape evidence could be considered for admissibility. In the Washington case, for instance no one was able to identify the plaintiffs as being persons shown on the videotape. There were similarities between the plaintiff and other employees of the company for which the plaintiff worked and the similarities precluded anyone from clearly saying that the plaintiff was the person

shown in the tape. As a result, one of the basic problems presented with videotape evidence was that the videotape evidence could not be relied upon as clearly indicative of the persons who the defendants contended was shown in the videotape.

• THE JUDGE’S DISCRETION:

The admissibility of any videotape is within the discretion of the trial judge. Olivier v. LeJeune, 95-0053 (La 2/28/96), 668 So2d 347, 351; Constans v. Choctaw Transport, Inc., 97-0863, (La. App. 4 Cir. 12/23/97), 712 So 2d 885, 901. There is no doubt that the admissibility of any videotape is an issue determined on a case-by-case basis depending on the individual facts and circumstances of each case. In addition to the fundamental issue of whether the videotape “accurately depicts what it purports to represent”, there is the second question of whether the videotape tends to establish a fact in the case of the party offering the tape.

It is often the case that on close scrutiny, a videotape will be demonstrated to show activity of a plaintiff, but will not go sufficiently far to establish a fact of a plaintiff not being injured or not suffering from the extent of the injury as he or she may have been presumed to have complained. A good example of this is a person who has suffered from a neck or back injury and who is able to do some things at some time during each day, but is not able to engage in that activity the entire day at work or at play. When captured on videos during the part of the day he is doing that which he or she may be instructed by his Doctor, to try, but not captured during the part of the day when he is suffering from the results of doing that rehabilitation or exercise, the videotape is certainly indicative of activity which can be undertaken, but does not establish the fact that the person filmed is not injured or the fact that the person filmed is restricted in his everyday activity.

Moreover, there is always the issue of whether or not the understanding of the jury will be aided or instead will be clouded by the activity demonstrated on the videotape. We all assume in this day of more liberal and evidentiary proceedings that any videotape should be admissible if it shows anything that approaches potential inconsistencies in the activity which can be undertaken by a plaintiff. However, on closer examination on the law of this issue this is a wrong assumption on our part. Assumptions of helpfulness as opposed to simply clouding the issues are often made with anything offered in a surveillance film.

IV. CHAIN OF CUSTODY ISSUES:

• It is often assumed that the evidence which is being offered has been properly maintained and kept in the custody of the person offering it:

It seems that these days we ignore the need to demonstrate originals and the proper maintenance of the chain of custody unless we are dealing with a criminal case. However, where so much of the information being presented in a civil case is also potentially evidence in a criminal case, the standards for proof of criminal evidence should not be ignored. Examples of these issues are in cases involving drunk drivers or cases where the evidence which is being offered will have criminal consequences such as in a workers compensation fraud claim arising out of a work place injury that also gives rise to a third party tort suit.

Reviewing the purpose of the chain of custody rule, one is drawn to the fundamental tenant that in considering the maintenance of the evidence we must be certain of its integrity to prevent the potential for tampering or the potential of the evidence being altered. Schwab v. Galuszka, 463 So.2d 737 (La. App. 4 Cir., 1985), writ denied, 464 So.2d 1386 (La. 1985), denied, 474 U.S. 803, 106 S.Ct. 37, 88 L.Ed. 2d 30, U.S. La.(1985).

Although the chain of custody must be established by an “overwhelming preponderance of the evidence” (See Laborde v. Louisiana State Racing Commission, 560 So.2d 594, 597 (La. App. 4 Cir., 1990), twenty-four hour vigilance of the evidence is generally not required in a civil case. Recasner v. Department of Fire, 94-0815 (La. App. 4 Cir., 11/17/94), 645 So.2d 1291, 1293 (La. App. 4 Cir., 1994), citing LaBella v. Louisiana State Racing Commission, 569 So.2d 58,61(La. App. 4 Cir. 1990), writ denied 572 So.2d 67 (La. 1991).

5. AUTHENTICATION

• WHAT IS AUTHENTICATION?

Authentication is described in the Louisiana Code of Evidence as a process whereby something is shown to be that which it purports to be. The best example of these issues being throughly discussed is in the book of G.W. PUGH et al, “Hand book on Louisiana Evidence Law” (1995).

Whether the evidence “is what its proponent claims” is not measured by the usual preponderance of the evidence standard according to the provisions of the Louisiana Code of Evidence Article 901. Instead the standard found in Article 901 is of “evidence sufficient to support a finding”, an evidentiary standard that falls below the preponderance of the evidence standard.

Notwithstanding this more relaxed statutory standard for determining whether or not to admit evidence as authentic, the case law tends to allow for admissibility only where the evidence falls within “the preponderance of evidence standard”. See McLaughlin v. Fireman’s Fund Insurance Co., 582 So.2d 203, (La App 1 Cir., 1991) re-hearing granted on other grounds, writs denied, 586 So.2d 536, (La. 1991). See also, George v. Department of Fire, 93-2421(La. App. 4 Cir., 5/17/94), 637 So.2d 1097, 1107; Segura v. Louisiana State Racing Commission, 577 So.2d 1031, 1033 (La. App. 4 Cir., 1991).

• APPROACH WITH GREAT CAUTION

The Louisiana Supreme Court in Olivier v. LeJeune, 95-0053 (La 2/28/96), 668 So2d 347, 351 gives us instruction on the manner in which we should approach motion pictures or video tapes:

“The determination of whether motion pictures or videotapes are admissible is largely within the discretion of the trial court, LaFleur v. John Deer Co., 491 So.2d 624, 632 (La. 1986).”

Quoting from Orgeron v. Tri State Road Boring,Inc., 434 So.2d 65, 68 (La. 1983), the Olivier Court shows that we should exercise great caution because:

“Evidence in the form of moving pictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject, they do not show rest periods, and do not reflect whether the subject is suffering pain during or after the activity.”

• ATTACKING CREDIBILITY EXTRINSICALLY

The best review of the use of surveillance or videotape evidence is seen in the Olivier case in the dissenting opinion of Justice Johnson where she reviews the basis for the use of videotape evidence only when offered to attack credibility and then only in accordance with the Rules of the Code of Evidence Article 613.

“Extrinsic evidence is evidence obtained from a source other than the direct questioning of the witness. The use of extrinsic evidence, including videotapes, for impeachment purposes is governed by the La. Code of Evid., Art. 607 D which provides as follows:

Attacking credibility extrinsically. Except as otherwise provided by legislation:

(1) Extrinsic evidence to show witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness;

(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

However, before extrinsic evidence to impeach a witness can be introduced, a proper foundation must be laid pursuant to the La. Code of Evid, Art. 613 which provides as follows:

“Except as the interests of justice otherwise require, extrinsic evidence of bias, interest or corruption, prior inconsistent statements, conviction of a crime, or defects or of capacity is admissible after the proponent has first fairly directed the witness’ attention to the statement, act or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to do so.”

(Emphasis added).

Under Art. 613, if after being confronted with the fact, the witness admits the fact, the evidence is not probative of the witness’ credibility. That is, upon admission by the witness, the evidence does not challenge his truthfulness and, consequently, it is not impeachment evidence admissible under Articles 607 and 613.

The use of videotapes in litigation has burgeoned in recent years. Ashley S. Lipson, Art of Advocacy–Demonstrative Evidence, § 13.02 [2] (1995). Frequently, defense attorneys hire private investigators to film surveillance videotapes capturing the plaintiff participating in physical activities inconsistent with his claimed injuries and limitations. Lipson, at § 13.02 [3]ii. Discovering the truth, such as indications of pain by the plaintiff or the need for medication or rest after physical exertion, is rarely the aim of a surveillance videotape. Where the goal and job is to find damaging evidence, a great potential for abuse exists. That is, surveillance videos provide manifold opportunities for fabrication and misrepresentation. For instance, an injured plaintiff may be filmed picking up a large object with ease. The camera would fail to show whether the object was relatively light or whether, afterwards, the plaintiff experienced debilitating pain and was unable to engage in further physical activities. Thus, a surveillance videotape is naturally suspect. Although videotapes are intended to give the impression of an objective reality, they are, in fact, merely a product of the point of view of the video camera operator. “The video camera operator can create a false impression through selectively choosing when to turn to the camera on and off. Nonetheless once a videotape is introduced into evidence, it somehow takes on the auro of objective truth. Moreover, videotapes make a lasting impression on a jury. Not surprisingly, the danger for undue prejudice is immense. Id § 13.01-06.”

Our recent experience in Washington, supra, is an excellent example of how videotape may provide the “manifold opportunities for fabrication and misrepresentation” as (Olivier, supra). Here are the pertinent facts:

• June 8, 2000, Edward Washington and Travis Parker were injured while riding on the service elevator at One Canal Place.

• According to the deposition of Charles Peterson, the building manager for One Canal Place, he was given the videotape by an unknown Corporate Realty employee within a few weeks of this incident.

• On or about June 6, 2001, plaintiffs file suit against defendants herein. Along with plaintiffs’ petition, plaintiffs served interrogatories on all defendants and specifically requested that each defendant “Please identify and/or describe the exhibits you

intend to offer as evidence, demonstrative exhibits, or reference exhibits, at the trial on the merits.”

• Defendant, Schindler Elevator Corporation, responded to these initial discovery requests on August 27, 2001. Schindler provided supplemental responses to these discovery requests on November 14, 2001. A copy of the surveillance tape was not identified in these responses.

• According to a letter dated April 7, 2003, from counsel for Corporate Realty and Aetna, the video-tape was provided by the building manager to in house counsel on September 21, 2001.

• According to the receipts attached to the letter from Corporate Realty, the tape was copied and provided to counsel for the other defendants, on or about October 4, 2001.

• On December 17, 2001, defendant, Schindler Elevator Corporation, took the deposition of plaintiff, Edward Washington. Counsel for all defendants attended this deposition.

• On April 1, 2002, plaintiff propounded supplemental requests for production upon all defendants and specifically requested that all defendants “produce copies of any and all surveillance video and/or any other means of recording the activities of the plaintiff, Edward Washington....”.

• Defendant, Corporate Realty, Inc., responded to the initial discovery requests on April 2, 2002. A copy of the surveillance tape was not identified in these responses.

• On April 4, 2002, in response to plaintiff’s supplemental discovery requests for surveillance film, defendant, Schindler, objected to this request as being “vague and ambiguous,” but it nevertheless identified and provided film from surveillance of the plaintiff taken a year and a half after this incident. There was no mention, however, of the surveillance film from the service elevator.

• Defendant, Aetna Life Insurance Company, responded to the initial discovery requests on April 23, 2002. A copy of the surveillance tape was not identified in these responses.

• On May 28, 2002, in response to plaintiff’s supplemental discovery requests for surveillance film, defendant, Aetna, also objected to the supplemental discovery requests as being “vague and ambiguous,” but nevertheless it identified and provided film from surveillance of the plaintiff taken a year and a half after this incident. There was no mention, however, of the surveillance film from the service elevator.

• On or about August 3, 2002 (some two years and two months after the incident giving rise to this litigation), counsel for Schindler provided to undersigned counsel the first version of the surveillance tape which purports to be for the service elevator for June 8, 2000. This was the very first time that plaintiff learned of the existence of the video-tape. Additionally, this tape was admittedly altered by Schindler and Zurich. Specifically, the speed of the film was changed, and camera angles and the time and date stamp were removed.

• Undersigned counsel responded by letter dated August 6, 2002, expressing plaintiff’s concerns regarding this video-tape.

• A series of letters ensued between undersigned counsel’s office and counsel for Schindler, until what was purported to be a complete copy of the tape was provided to plaintiff on about August 19, 2002. It was later learned, however, that this tape was also materially altered by defendants. Specifically, several hours of film were removed.

• In August 2002, plaintiff requested the alleged original from Schindler, and on March 17, 2003, plaintiff requested access to the original video-tape held by Corporate Realty on April 1, 2000, plaintiff was finally granted access to the tape, at which time, plaintiff learned that, yet again, the previous version of the tape produced by defendants was in fact not a complete copy of the tape which defendants wish to introduce into evidence at the trial of this matter.”

• On August 29, 2003, pursuant to an Order of the Court four (4) videotapes were produced from the one (1) videotape that was allegedly originally made in this matter. The speed was changed and the quality of the tape was different.

• On September 15, 2003, at the Motion in Limine Hearing [which lasted three (3) days] it was discovered for the first time that the alleged original, which was presented for the first time on April 2, 2003, was in fact significantly shorter in length than the alleged original being offered into evidence on September 15, 2003 (T-120 tape was offered as the alleged original on April 1, 2003; a T-160 tape was presented as the alleged original on September 15, 2003).

• Plaintiffs hired an investigator to determine the authenticity of the tape. He was able to testify that the original tape viewed on April 1, 2003 was a T-120 rather than the T-160 tape being offered as evidence. Further, he testified that the tape markings on the binder of the alleged original as presented on April 1, 2003 were different from the tape binder markings on the alleged original tape being offered into evidence on September 15, 2003.

• Most importantly the information on the alleged original presented on April 1, 2003 was also found to be lacking certain critical conflicting dates that were not shown or demonstrated (or even commented upon) in any of the information or alleged copies of the originals that had been given to plaintiffs during the two years before August 29, 2003.

• Instead of a June 8, 2000 date or a June 9, 2000 date, the alleged original was found to have dates of April 8 and 9, 2000, and also May 8, 2000, none of which could be easily explained by the witness offered by the building engineering department, despite his effort to change his testimony and to contend that he had been previously mistaken, and then to attempt re-characterize the markings on the tape as well as the manner in which the tape evidence would show as conflicting dates.

The use of an investigator for determining authenticity, chain of custody and admissibility of the reported original was in these circumstances critical to our being able to avoid the assumption that the alleged surveillance tape had been retrieved from a system that “just must have been properly maintained”, when in fact it was clearly not properly maintained or the evidence preserved. A copy of the report of the investigation of Terrell Micelli Investigations is included with this paper to show the questions for consideration when presented a videotape. (See report attached).

VI. THE WEB OF DECEIT IN THE STORAGE HANDLING MANIPULATION OF EVIDENCE

Annexed for your consideration is the finding of the trial court which has been maintained on initial writ review by the Fourth Circuit Court of Appeal. This finding is that the defendants engaged in a “ web of deceit that surrounds the handling, storage, production and identification of the tape” which they intended to offer as surveillance evidence. Obviously, the concerns of Justice Johnson that “Surveillance videotapes provide manifold opportunities for fabrication and misrepresentation” was found by the trial court in this case to exist.

• Professionals who materially alter surveillance videotapes through digitalization of the data with modification through the use of computers:

The most disturbing part of the evidence alterations in this case is seen first in the responses to discovery offered by the defendants that they relied entirely upon professionals located in New Orleans to modify any of the videotape evidence which they intended to present. The analogue video tape of the past may now be presented in digital format with modifications which are very difficult to trace or to prevent. In our case we saw that despite the denials of any digitalization and/or modification of the tapes, upon taking the deposition testimony of the individuals who were alleged to have made the videotape changes, it was discovered that the professionals did in fact make the changes requested after digitizing the analogue videotape. Herein lies much of the difficulty with relying upon videotape evidence. Not only can it be modified by professionals, but it can be modified intentionally or unintentionally in copying.

The dangers in the digital world go much farther than being able to manipulate videotape and photographic evidence. They obviously include deletion, manipulation, alteration or modification of data in all kinds of forms which will require that our Courts once again return to consideration of basic evidentiary standards. As a recommendation for legislative consideration, it is strongly believed by this writer that the evidentiary standards requiring original documents should be restored to the code as to digital evidence to avoid the flood of evidentiary problems which will to be faced by our Courts in the “digital age”.

§658. Payment and adjustment of claims, policies other than life and health and accident; personal vehicle damage claims; penalties; arson-related claims suspension

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Status of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.

(2) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Status of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.

(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.

(4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim.

B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658 (A)(1), or within thirty days after written agreement or settlement as provided in R.S. 22:658 (A) (2) when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment of tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

(2) The period set herein for payment of losses resulting from fire and the penalty provisions for nonpayment within the period shall not apply where the loss from fire was arson related and the state fire marshal or other state or local investigative bodies have the loss under active arson investigation. The provisions relative to time of payment and penalties shall commence to run upon certification of the investigating authority that there is no evidence of arson or the there is insufficient evidence to warrant further proceedings.

(3) The provisions relative to suspension of payment due to arson shall not apply to a bona fide lender which holds a valid recorded mortgage on the property in question.

(4) Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant’s loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable attorneys’ fees for the collection of such expenses.

C. (1) All claims brought by insureds, worker’s compensation claimants, or third parties against an insurer shall be paid by check or draft of the insurer to the order of the claimant to whom payment of the claim is due pursuant to the policy provisions, or his attorney, or upon direction of such claimant to one specified; provided, however, that the check or draft shall be made jointly to the claimant and the employer when the employer has advanced the claims payment to the claimant. Such check or draft shall be paid jointly until the amount of the advanced claims payment has been recovered by the employer.
(2) no insurer shall intentionally or unreasonably delay, for more than three calendar days, exclusive of Saturdays, Sundays, and legal holidays, after presentation for collection, the processing of any properly executed and endorsed check or draft issued in settlement of an insurance claim.

(3) Any insurer violating this subsection shall pay the insured or claimant a penalty of two hundred dollars or fifteen percent of the face amount of the check or draft, whichever is greater.

D. (1) When making a payment incident to a claim, no insurer shall require that as a condition to such payment, repairs be made to a motor vehicle, including window glass repairs or replacement, in a particular place or shop or by a particular entity. Any insurer violating the provisions of this Subsection shall be fined not more than five hundred dollars for each offense.

(2) A violation of this Subsection shall constitute an additional ground, under R.S. 22:1173 [fn1], for the commissioner to refuse to issue a license or to suspend or revoke a license issued to any agent, broker, or solicitor to sell insurance in this state.

§ 1220. Good faith duty; claims settlement practices; cause of action; penalties

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.

B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:

(1) misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.

(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.

(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.

(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.

C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

D. The provisions of this Section shall not be applicable to claims made under health and accident insurance policies.

E. Repealed by Acts 1997, NO. 949, § 2.

F. The Insurance Guaranty Association Fund, as provided in R.S. 22:1375 et seq., shall not be liable for any special damages awarded under the provision of this draft as Division could have had rights against insurer for reimbursement of medical services furnished to insured. Nelson v. Ardoin, App. 3 Cir. 1979, 367 So. 32d 1233.

Louisiana jurisprudence has generally held that the punitive damages available under both statutes may not be recovered, but instead an election of remedies must be made by the plaintiff. Calogero v. Safeway Insurance Company of Louisiana, No. 99-1625 (LA S.Ct. 1/19/00) 753 So.2d 170 (La. 2000). This assumes, of course, that a plaintiff has the right to recover under either statute.

The claims adjustment period of thirty (30) or sixty (60) days begins with notice and a proof of claim. The specific allegations in pleadings and the assessment of the factual basis upon which to base a claim for punitives under these statutes has lead many insurers to file motions for summary judgment on these claims early in the litigation. State Farm for instance, has instructed its counsel to file motions for summary judgment without delay on any petition where the allegation for punitives has been made.

The purpose of this paper is not to review that which all of you are familiar with but to point out that neither 22:658, nor 1220 provides that either is the exclusive means for recovery where another set of punitive statutes may be available.

For instance, the punitive damage’s laws in the state of Illinois may well apply to activities of State Farm and Allstate Insurance Companies which find their home offices located in Illinois. Seeking to apply Illinois punitive damages under the conflicts of laws principles has been found to be meritorious in several states. In Louisiana, there is no reported case on this issue, but it was recently raised in a fire case we handled and served to provide additional leverage to promote settlement.

The theory is the application of Louisiana’s general conflicts of laws statue enacted in its current form in 1991, and now found at La. Civil Code Articles 3515 to 3549, comprising Book 4 of the Civil Code. The comments to the 1991 changes in the conflicts of laws principle show that “the objective of the choice of law process.... is to identify ‘the state whose policies would be most seriously impaired if its law were not applied to that (particular) issue,’ that is, the state which in light of its relationship to the parties and the dispute and its policies rendered pertinent by that relationship, would bear the most serious legal, social, economic, and other consequences, if its laws were not applied to that issue.”

You should note that this is not a governmental interest analysis or a reference to the analysis based upon interstate competition. It is instead identified as a means of problems resolution by promoting interstate cooperation in avoiding conflicts. Pertinent to the commentators was the objective that “the choice of law process should strive for ways to minimize impairment of the interests of all of the involved states, rather than to maximize the interests of one state at the expense of the interests of the other state.” See Symeonides, “Problems and Dilemmas in Codifying the Choice of Law for Torts: the Louisiana Experience in Comparative Perspective”, 38 Am. J. Comp. L. 431, 436 - 41(1990).

Beginning with identification of the resources of statutory interpretation in each state, the commentator suggests then, an evaluation of the “strength and pertinence” of such policies in view of “the relationship of each state to the parties and the dispute.”

Finally, the comments provide that the evaluation of state policies is also to be conducted “in the light of .... the .... needs of interstate and international systems.” It is noteworthy that the commentators indicate that “this admonition goes beyond the self-evident requirement of complying with the limits prescribed by the federal constitution for state choice of law decisions. See, e.g., Allstate Insurance Company v. Hague, 449 U.S. 302 (1981).

The analysis of conflicts is in terms of issues rather than cases. One issue in a case may be governed by the laws of a particular state, although all other issues are governed by the laws of the forum state. This issue by issue analysis is generally referred to by its French name of “dépeçage”. An example of the issue by issue interpretation with respect to damage claims is seen in Shell Oil Company v. Hollywood Marine, Inc., No. 97-106, 97-611 (La. App. 5th Cir. 10/15/97) 701 So.2d 1038, which held that Texas law, rather than Louisiana law, would apply to govern the interpretation of a liability insurance policy because Texas had compelling interest in regulating its insurance policies contracted for in Texas and issued to companies doing business in Texas, although the injury occurred in Louisiana.

PUNITIVES AGAINST STATE FARM
The issue of application of Illinois punitive damages laws arises with respect to State Farm in large measure because of the recent decision in the matter styled Campbell v. State Farm Mutual Automobile Insurance Company, No. 98-1564 (UT S.Ct. 10/19/01) 2001 UT 89. With respect to State Farm’s adjustment practices, the court in that case considered the claims under the law of the state of Utah, allowing for the award of punitive damages. It considered in particular the following list of issues for the application of Utah’s punitive damage awards:

1) The relative wealth of State Farm;

2) The nature of State Farm’s misconduct;

3) Facts and circumstances surrounding State Farm’s misconduct;

4) The effect of State Farm’s misconduct on the Campbells and others;

5) The probability of future recurrences;

6) The relationship of the parties;

7) The ratio of punitive to compensatory damages;

Of particular importance to our analysis of State Farm’s exposure for punitives in subsequent cases are the findings of the Utah Supreme Court on the nature of State Farm’s misconduct. It is these findings which would apply to State Farm’s adjustment practices in any case in any state.

From the Campbell case the findings are as follows:
“2. The Nature of State Farm’s misconduct.
This factor specifically analyzes the nature of the defendant’s conduct in terms of its maliciousness, reprehensibility, and wrongfulness. It mirrors the “reprehensibility” factor described by the United States Supreme Court in BMW of North American, Inc. v. Gore, 517 U.S. 559 (1996). There, the Supreme Court stated that the defendant’s misconduct is “[p]erhaps the most important indicium of the reasonableness of a punitive damages award.” Id. at 575, 576. Repeated “trickery and deceit” targeted at people who are “financially vulnerable” is especially reprehensible and worthy of greater sanctions. Id. Moreover, “deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper notice” also warrant larger awards. Id. at 579.

With these standards clearly in mind, the trial court made nearly twenty-eight pages of extensive findings concerning State Farm’s reprehensible conduct. We summarize here three examples from those findings of State Farm’s most egregious and malicious behavior.

First, State Farm repeatedly and deliberately deceived and cheated its customers via the PP&R scheme. See Court’s Findings, Conclusions and Order Regarding Punitive Damages and Evidentiary Rulings, Campbell, at 17-27. For over two decades, State Farm set monthly payment caps and individually rewarded those insurance adjusters who paid less than the market value for claims. Id. at 18-19. Agents changed the contents of files, lied to customers, and committed other dishonest and fraudulent acts in order to meet financial goals. Id. at 17-27. For example, a State Farm official in the underlying lawsuit in Logan instructed the claim adjuster to change the report State Farm’s file by writing that Ospital was “speeding to visit his pregnant girlfriend.” Id. at 35. There was no evidence at all to support that assertion. Ospital was not speeding, nor did he have a pregnant girlfriend. Id. The only purpose for the change was to distort the assessment of the value of Ospital’s claims against State Farm’s insured. As the trial court found, State Farm’s fraudulent practices were consistently directed to persons – poor racial or ethnic minorities, women, and elderly individuals – who State Farm believed would be less likely to object or take legal action. Id. at 26-27.
Second, State Farm engaged in deliberate concealment and destruction of all documents related to this profit scheme. Id. at 31-33. State Farm’s own witnesses testified that documents were routinely destroyed so as to avoid their potential disclosure through discovery requests. Id. at 29-30. Such destruction even occurred while this litigation was pending. Id. at 30. Additionally, State Farm, as a matter of policy, keeps no corporate records related to lawsuits against it, thus shielding itself from having to disclose information related to the number and scope of bad faith actions in which it has been involved. Id. at 30.

Third, State Farm has systematically harassed and intimidated opposing claimants, witnesses, and attorneys. Id. at 33-37. For example, State Farm published an instruction manual for its attorneys mandating them to “ask personal questions” as part of the investigation and examination of claimant in order to deter litigation. Id. at 34. Several witnesses at trial, including Gary Fye and Ina DeLong, testified that these practices had been used against them. Id. at 34-35. Specifically, the record contains an eighty-eight page report prepared by State Farm regarding DeLong’s personal life, including information obtained by paying a hotel maid to disclose whether DeLong had overnight guests in her room. Id. at 35. There was also evidence that State Farm actually instructs its attorneys and claim superintendents to employ “mad dog defense tactics” – using the company’s large resources to “wear out” opposing attorneys by prolonging litigation, making meritless objections, claiming false privileges, destroying documents, and abusing the law and motion process. Id. At 36-37.

Taken together, these three examples show that State Farm engaged in a pattern of “trickery and deceit,” “false statements,” and other “acts of affirmative misconduct” targeted at “financially vulnerable” persons. BMW, 517 U.S. at 575, 576. Moreover, State Farm has strategically concealed “evidence of [its] improper motive” to shield itself from liability, which was furthered by State Farm’s treatment of opposing witnesses and counsel. BMW, 517 U.S. at 579. Such conduct is malicious, reprehensible, and wrong.

Without dwelling on the details of the findings in that case, you should note that one of the expert witnesses who testified, Ms. Ina DeLong, has offered an affidavit in other cases which provide that:

“The properly handled claim at State Farm is the exception, not the rule. Claim representatives have little or no training and are rewarded for keeping costs down.”

She further provided that:

“State Farm knows that the key to underpaying claims is to provide little or no training and keep claims representatives separated from anyone with real knowledge of what [the] damage looks like or what an appropriate repair is. The claim representative is incompetent by design and is given minimal draft authority until they prove to State Farm management that they understand the importance of the ‘bottom line’, the goal of being the ‘most profitable claims service in the industry and prove that they won’t let anything get between State Farm and their money.’ Most training is ‘on the job’ where the untrained claim representative is accompanied by another equally untrained claim representative and if they are successful, their approach, they assume it is correct and continue to do it. The only gauge for determining the accuracy of their assessment is the policy holder that has been rocked by disaster and has not been warned that the adjuster is either untrained or reaps huge rewards for keeping costs down. The policy holder isn’t provided with any information regarding steps they could take to protect themselves against such abuses.”

As if that was not enough, Ms. Ina DeLong further offers that:
“The claim representatives that inspect the losses have little or no authority to make a coverage decision, or make payment, and can only report back to others that will be making the decisions regarding coverage and payment. This means that the decision makers can only view the claim through the eyes of the untrained adjuster and are free from any emotional involvement, or the real facts of the loss. Not exactly what the public expects when they hear the ‘good neighbor’ jingle.”

“The real agenda at State Farm regardless of the slogan of ‘pay what we owe; nothing more, nothing less’, and the ‘good neighbor’ advertising, is to do all in their power to pay as little as possible, as late as possible, if ever at all. This frequently works because the insurance buying public has bought into the warm fuzzy ‘good neighbor’ advertising. State Farm has contested to see who can close the most files without any payment, referred to as ‘CWP’. State Farm’s management refers to these sayings as ‘claims profit.’ To calculate profit, State Farm subtracts the amount they paid on the claim from the amount they should have paid. An insurance company is not suppose to make its profits in the claims handling, but rather in the underwriting and actuarial process.

Now with respect to these findings and accusations against State Farm, other states are beginning to present the issues with respect to conflicts of laws and principles as they relate to State Farm by reviewing the law in the State of Illinois, where the defendant is incorporated and the principal place of business for the defendant is in Illinois. Moreover, arguments are in some cases being successfully made that the conception of the deceptive business practice occurred in Illinois. It is also pointed out that the refinement of the deceptive business practice occurred in Illinois because the strategy of how to implement the deceptive business practice originated and is managed from Illinois.

The persons who dictated, created and implemented the deceptive business practices have, at all times, been located in Illinois as will be attested to by James Mathis and Ina DeLong, experts who testify in this kind of cases.

It should be noted that all local offices of State Farm act only insofar as permitted by the corporate offices in Illinois. Marketing decisions originate and are premised on approval from corporate office in Illinois. Further, the decision in determining why a deceptive business practice was needed was a corporate decision from Illinois. Moreover, the training of the adjusters is through a training program which originates in and is more often than not taught in home offices in Illinois. The application of Illinois principals of law therefore can easily be argued as available and the question has to be raised as to whether or not Illinois punitives would be helpful.

Illinois case laws on punitive damages note that the limited punitives that might be available for insurance company violations in Illinois, do not preclude the application of Illinois Consumer Fraud Act to actions of insurers. A case on this issue is seen in the action of Fox v. Industrial Casualty Insurance Co., No. 80-1480, 98 Ill.App.3d 543, 4245 N.E.2d 839, 54 Ill.Dec.89). In that case the court found that:

“We do not read these cases to hold that an insured is limited to filing actions against insurers based only on violations of the insurance code, nor does the careful reading of the code warrant this conclusion. .... The sale of insurance is clearly a service and insureds are thus consumers and within the protection of the Consumer Fraud Act. Private causes of action are also authorized under the act.”

For instance, the Consumer Fraud Act was applied against State Farm in a claim for refusing to use original equipment of manufacture’s as oppose to low cost generic replacement parts. Both compensatory and punitive damages were awarded in that case.

MEDICAL MALPRACTICE PUNITIVES IN OTHER STATES
Other punitive issues, such as in medical malpractice claims may be of interest to you. A survey on the laws of the various states on availability of punitive damages in medical malpractice actions is attached.

PRODUCTS LIABILITY PUNITIVES
The claims for punitive damages and products liability matters are well known to be the basis for positive change as a result of corporate misconduct. The attached chart of twelve (12) items where there has been a positive result is attached. This list shows the benefit of punitive damages and may be a useful tool at the meeting of the Chamber of Commerce.

With respect to Louisiana laws, everyone knows that Louisiana has no punitive damages for products liability claims and that Louisiana is the best place for manufactures to operate. A business survey in the Sunday Advocate in 1995 reconfirmed that. See the attached copy of the article.
STUDY REQUEST
With respect to what we can expect in Louisiana, I attach a copy of a Study Request initiated by Representatives Fruge and McMains indicating that the filing of lawsuits should be limited to one (1) day, every four (4) years; although it is recognized to likely be inconvenient to the claimants and the Courts, it is thought to be of great benefit to Big Business and Industry. A copy of the original Study Request is attached.

There is no field of governmental activity concerning which the people are as poorly informed as the field occupied by the judiciary.
...
It is highly inconsistent to complain of the ignorance and apathy of voters and then to ‘close the windows of information through which they might observe and learn.’ Generally only idle people, pursuing ‘idle curiosity’ have time to visit court rooms in person. What harm could result from portraying by photo, film, radio and screen to the business, professional and rural leadership of a community, as well as to the average citizen regularly employed, the true picture of the administration of justice? Has anyone been heard to complain that the employment of photographs, radio and television upon the solemn occasion of the last Presidential Inauguration or the Coronation of Elizabeth II was to satisfy an ‘idle curiosity’? Do we hear complaints that the employment of these modern devices of thought transmission in the pulpits of our great churches destroys the dignity of the service; that they degrade the pulpit or create misconceptions in the mind of the public? The answers are obvious. That which is carried out with dignity will not become undignified because more people may be permitted to see and hear.

– Justice Otto Moore of the Colorado Supreme Court, 1956

In this day and age of near constant, twenty-four hour news coverage, accessible through numerous television outlets (to wit, CNN, CSPAN, Fox News, MSNB, et al.), as well as through the more recent medium of internet distribution, access to the inner-workings of our government, on both the state and federal levels, is at an all-time high. While this statement is generally true for and applicable to both the executive and legislation branches, as sagely summarized by Justice Moore over fifty years ago, it can not be said to apply nearly as much to the judiciary. As for the Article III entities, it has been succinctly stated that there exists neither a constitutional prohibition against, nor a constitutional presumption in favor of allowing cameras in the courtroom. This being so, the debate surrounding this issue has naturally flourished and is no less heated today.

As will be explored in greater depth in later sections of this paper, currently, all fifty states allow at least some camera coverage of judicial proceedings, including thirty-seven states in which criminal trials may be televised. Only the District of Columbia bans camera coverage of all judicial proceedings. In the federal system, cameras are only permitted to be used in the Circuit courts of appeal and then only upon the discretionary approval of the presiding judges. The greatest hurdle to expanded camera coverage, the U.S. Supreme Court, has consistently remained opposed to cameras within its own hallowed halls. As discussed later, this stalwart opposition from the federal judiciary just may be softening, however.

Many state courts have sided with the supporters of electronic and video media coverage in the courts arguing that the rights of free speech and/or freedom of the press under the First Amendment and state constitutional equivalents. In contrast, for those opposed to the greater expansion of such media into federal courts, particularly at the district levels, it is argued that such media coverage and camera exposure infringes on a defendant’s Sixth Amendment right to a fair trial and also perhaps upon the Fourteenth Amendment right to due process.

This paper discusses both current and historical state and federal approaches to cameras in the courtroom. This paper also sets out the most cited arguments both for and against the expansion of cameras and of electronic media coverage in courtrooms. Last, this paper presents examples of pending legislation intended to expand cameras and electronic media coverage in courtrooms ultimately concluding that such legislation, if made law, will greatly serve the interests of justice through access, accountability, and education; that is, through the spreading of sunshine in the courtroom. Indeed, as Justice Brandeis once wrote: “Sunshine is said to be the best of disinfectants.”
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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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III. Federal Courts articulate the Cons: Bases for opposition to cameras in the courtroom

Although state courts have generally indicated a progression favoring cameras in the courtroom, in contrast, the Federal Judiciary remains largely opposed to the practice and has exhibited markedly slower advancement in opening federal courtrooms to the media. Federal courts are essentially closed to cameras. In 1972, the Judicial Conference, which makes the rules for the federal judicial branch, banned photographs and television cameras from all federal courts. In the early 1990s, a three year pilot program was allowed, to experiment with electronic media in civil courtrooms in selected district and appellate courts. As a result, the Judicial Conference voted to permit each of the federal appellate circuits to “decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments.” Most circuits declined; however, the Second and Ninth Circuits acted to allow such coverage. Although the United States Courts of Appeal retain the right to allow media presence at their discretion, the majority, including the Fifth Circuit, has opted not to implement televised broadcasting of any type. Perhaps the most stalwartly opposed institution to media attended courtroom proceedings, however, is the United States Supreme Court.

Lower federal courts’ staunch resistance is undoubtedly influenced by the Supreme Court’s position on the issue of cameras in the courtroom, on both personal and jurisprudential bases. The High Court rendered an undeniable preference for non-televised proceedings when it decided Estes v. Texas in 1965. In Estes, the defendant moved prior to trial to exclude photographic and broadcast coverage of the proceedings involving the financial fraud of several farmers. The trial judge ultimately permitted television coverage of the trial, restricting cameras to a constructed booth in the back of the courtroom. The defendant was found guilty of his charges and appealed his conviction, arguing that television coverage had denied him a fair trial. In its 5-4 decision in favor of the defendant/appellant, the Court held that television broadcasting coverage was distracting to jurors, judges and defendants and in particular, was likely to alter witness testimony. In such a situation, the court ruled that the rights of criminal defendants outweigh the interests of broadcasters to televise trials.

The High Court’s language in Estes could arguably be construed to rest the burden of opening the courtroom on the media’s ability to maintain a non-distracting posture during court proceedings. Although the Court’s ruling specifically contemplated the interruptive nature of technologically dated cameras at that time would not always be so, it held that “Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today.” In today’s climate, where technological advances have surpassed all expectation, it is reasonable to question if the rationale in Estes would have held true if decided today.

The Supreme Court further shed light on the issue in its 1981 ruling of Chandler v. Florida. In Chandler, the Court held 8-0 that consistent with constitutional guarantees, a state could allow radio, television and still photographic coverage of a criminal trial for public broadcast, regardless of objection by Defendant. In so holding, the Court clarified that Estes “did not announce a constitutional rule that all photographic, radio and television coverage of criminal trials is inherently a denial of due process.” Further, the Court ruled that a showing of prejudice of constitutional dimensions was absent, and accordingly:

An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, conduct of the broadcasting process or prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials by the printed media; so also the risk of such prejudice does not warrant an absolute constitutional ban on all broadcast coverage. A case attracts a high level of public attention because of its intrinsic interest to the public and the manner of reporting the event. The risk of juror prejudice is present in any publication of a trial, but the appropriate safeguard against juror prejudice is the defendant’s right to demonstrate that the media’s coverage of his case-be it printed or broadcast- compromised the ability of the particular jury that heard the case to adjudicate fairly.

Despite the ruling in Chandler, federal courts’ position on allowing cameras in the courtroom has remained largely unchanged. Although broadcasters have repeatedly requested and lobbied for access, the Judicial Conference of the United States–which establishes policy for the federal courts–has consistently refused to reconsider its rules prohibiting television and radio broadcasting from federal trials. In 1996, the Judicial Conference allowed experimentation with cameras in federal courtrooms, but subsequently decided not to renew that experiment.

The Supreme Court, in particular, has inexorably refused to allow cameras into the court, even notably denying the requests of broadcasters to televise the historic argument in Bush v. Gore. Despite the Court’s official stance, however, the Justices appear to be potentially conflicted on the issue:

“The day you see a camera come into our courtroom it’s going to roll over my dead body.” –Justice David Souter, Congressional Testimony, 1996.

“It runs the risk of undermining the manner in which we consider the cases. Certainly it will change our proceedings. And I don’t think for the better.” - Justice Clarence Thomas, Testimony before a House Appropriations subcommittee, April 4, 2006.

“Not a chance, because we don’t want to become entertainment. I think there’s something sick about making entertainment out of other people’s legal problems. I don’t like it in the lower courts, and I don’t particularly like it in the Supreme Court.” –Justice Antonin Scalia, CNBC Interview, October 10, 2005.

“If it were in the Supreme Court, I think it would become a symbol for every court, and therefore it would be in every criminal trial in the country. And when I start thinking about witnesses, I don’t want them thinking how they look to their neighbors...And I do think about the O.J. Simpson case.” –Justice Stephen Breyer, American Bar Association Rule of Law Symposium Panel on the Role of the Judiciary, November 10, 2005.

“I would not object, just for myself, to having proceedings televised, provided the control remain in the hands of the Court and that the coverage was gavel-to-gavel but I do not think a decision like that should ever be forced on judges who take a different view. Right now, the view is that our proceedings should not be televised. That may change based on the experience of state supreme courts. Several of our states are experimenting with televised trials. Televised appeals. And if it works, in time it will spread, and if it doesn’t, then it won’t...Our courtroom is generally packed, sometimes there are long lines to get in...and this would be another way of opening the court further.” - Justice Ruth Bader Ginsberg, Interview with Canadian Lawyers Weekly, October 2000.

“Sometimes if the system is flawed, the people ought to know it. And if television shows a flawed system, then let them see it...But television can be a teacher. And if we were going to have a debate on television in the courtroom, and you drew the affirmative side of the debate, you could make probably more positive points. And we sometimes wish lawyers were better prepared, but they haven’t seen us at work. If they had a videotape or DVD, then they could see it. So you can make a lot of arguments for it.” –Justice Anthony Kennedy, American Bar Association Rule of Law Symposium Panel on the Role of the Judiciary, November 10, 2005.

“I had the opportunity to deal with this issue actually in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if it wanted. We had a debate within our court about whether we would or should allow television cameras in our courtroom. I argued that we should do it...The issue is a little different in the Supreme Court. It would be presumptuous for me to talk about it right now, particularly since at least one of the justices have said that a television camera would make its way into the Supreme Court over his dead body. I will keep an open mind despite the decision I took in the third circuit.” –Justice Samuel Alito, Confirmation Hearing, January 11, 2006.

“There’s a concern (among justices) about the impact of television on the functioning of the institution. We’re going to be very careful before we do anything that might have an adverse impact.” - Chief Justice John Roberts, Remarks at the Ninth U.S. Circuit Court of Appeals’ annual conference, July 13, 2006.

“Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of. But I don’t have a view on that. I do think it’s something that I would want to listen to the views of - if I were confirmed - to my colleagues.” -Chief Justice John Roberts, Confirmation Hearing, September 14, 2005.

So why does televised coverage find such sparse support within the Federal Judiciary? As articulated above, the bases for denying cameras access to courtrooms, though not explicitly articulated in the Bill of Rights, often find their roots in constitutional law. The Sixth Amendment of the Constitution provides the right to a speedy and public trial with an impartial jury, Fourteenth Amendment provides Equal Protection and Due Process under the law. The Judicial Conference and the federal courts still maintain the position that live television coverage distracts trial participants, unfairly affects the outcomes of trials and diminishes the dignity of the courts, and thus, these constitutional guarantees are violated.

Opponents argue that televised coverage undermines a party’s fair trial rights both in court and out of court. Cameras displaying live proceedings are purported to negatively affect the tendency of witnesses to articulate completely and specifically, and jurors are supposedly distracted by the activity of the media, thus possibly failing to absorb significant testimony. Additionally, as many media outlets will only broadcast a short sound byte of the courtroom proceedings, some offer that public opinion will be shaped largely by the portions chosen to be broadcast. Because jurors, even if sequestered, will likely be affected by public opinion, they are indirectly impacted by which snippets of the testimony will be seen on TV.

In addition to constitutionally contemplated opposition, some opponents offer logistic difficulties for disallowing cameras in the courtroom. In permitting broadcasting, decisions must be made as to how many personnel will be allowed in a limited amount of space, as well as the manner of handling sensitive issues, such as minor children. The potential expenses of transmission, although usually borne by broadcasting companies, concerns protectors of a modest judicial budget. Morever, in a time where crowded dockets are the rule rather than the exception, some detractors offer that including media will inevitably lead to scheduling conflicts and technical difficulties, therefore resulting in longer trials and other proceedings.

Despite the arguments against, however, the pressure seems to be mounting to allow increased sunshine in all courtrooms. In the day of “reality tv”, the public is becoming accustomed to observing/critiquing formerly private situations. Additionally, countless political campaigns are centered around increased discussion and reform of government ethics. This “trend of openness” is sought by many to be extended to courtrooms, a crusade which appears to have reached America’s legislative branch.
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IV. H.R. 2128 and S.352: The Sunshine in the Courtroom Bills of 2007

There have been various efforts within the United States Congress to open federal courts to televised media coverage. Although not the first of these, the widely hailed “Sunshine in the Courtroom Act” was previously introduced on April 18, 2005 in the United States Senate to allow media coverage of court proceedings. The bill, cited as the “Sunshine in the Courtroom Act of 2005", was a bi-partisan effort, sponsored by Senator Charles Grassley [R-IA] and co-sponsored by eleven other republican and democratic senators. The bill proposed to “give Federal judges the discretion to allow for the photographing, electronic recording, broadcasting and televising of Federal court proceedings.” As Senator Grassley noted in his introduction of the bill to the Senate on April 18, 2005, the bill “gives judges the discretion to use cameras in the courtroom...it does not require judges to have cameras in their courtroom if they do not want them..the bill also protects the anonymity of non-party witnesses by giving them the right to have their voices and images obscured during testimony.” Despite the Sunshine Act’s broadly supported sponsorship, the bill died in the Senate and never became law.

However, H.R. 2128 and companion bill S.352, the currently proposed “Sunshine in the Courtroom Acts of 2007", now before the House and Senate Judiciary Committees, propose similar legislation authorizing the presiding judge of a United States appellate court or district court to permit the photographing, electronic recording, broadcasting, or televising to the public of court proceedings over which that judge presides, except when such action would constitute a violation of the due process rights of any party. The bill, chiefly sponsored by Congressman Bill Delahunt and Rep. Steve Chabot of Ohio in the House and Senator Chuck Grassley in the Senate, authorize the Judicial Conference of the United States to dictate advisory guidelines for use by a presiding judge regarding implementation of media in the courtroom as contemplated by the Act. Additionally, the Act directs a district court to order the disguise of a witness’ face and voice to render the witness unrecognizable to the broadcast audience of the trial proceeding upon the request of the witness (not a party), and also directs the presiding judge in a trial proceeding to inform each witness who is not a party of the right to make such request. Notably, the bill contains a specific provision restricting the televising of jurors. In promoting the bill, Congressman Delahunt explained its purpose: “Cameras in the courtroom offer an alternative - an unedited, unfiltered, unvarnished glimpse of the judicial process as it really is...the goal of this legislation is to enhance our confidence in the American justice system.”

H.R. 2128 was introduced to the House on May 3, 2007 and referred to the House Committee on the Judiciary, where it has remained, undergoing the processes of referrals, hearings, and markups, largely in the Subcommittee on Courts, the Internet and Intellectual Property. S. 352 was introduced in the Senate on January 22, 2007 and referred to the Committee on the Judiciary, where it has continued to undergo hearings and consideration. If passed, the Sunshine Act will give Federal Judges considerable discretion to determine the amount of media access to their courtrooms. Because of a Judge’s ability to restrict or allow such coverage, however, the future impact of such a measure is arguably undeterminable at this time.

V. The Pros: Historical and Constitutional Reference as well as the Practical Considerations of Education and Accountability

Based on our colonial past, the value of open access to the functions of our judiciary has long been recognized in our nation’s history. In fact, to some degree, the value placed upon open trials and the public jury system by our Founding Fathers can be said to have shaped the core principles that would later make up those parts of the Bill of Rights dealing with our trial system, i.e. the Sixth Amendment, as well as the First Amendment rights to the accessability of public proceedings as well as to free and open speech and press. As has been discussed, while the ideal of expanded media presence in our courtrooms today has been refuted by some, the concept is supported by strong arguments both of a constitutional nature and of a common sense nature. The arguments in favor of such expansion, it is posited herein, far outweigh those to the contrary.

More than any other amendment, the issue of cameras in the courtroom invokes those rights and liberties made the basis of the First and Sixth Amendment. Detractors would argue that there exists a natural tension between the guarantees of the Sixth Amendment and those secured by the First. In other words, those detractors argue that the more “public” a proceeding becomes, the less “fair” it gets. This is a cynical view that does not account for the inherent, but often subtle genius exhibited by our Founders. Indeed, the proper and more logical view would be to consider the two amendments as “mutually reinforcing,” a concept promoted by countless sources, both legal and academic. In essence, the idea or concept of reading these two amendments together goes as follows: public access to and participation in our courts and court system provides an extra-judicial check on dubious judges and potentially biased participants, thereby reinforcing a defendant’s Sixth Amendment right to a fair and public trial. Further, a jury’s power to consistently uphold the individual’s right to free speech if challenged likewise promotes the goals of the First Amendment by use of the Sixth. Thus, through the concept of “mutually reinforcing amendment,” the arguments in favor of greater access to our courtrooms, through media, clearly “shine” through.

Thus, on the constitutional front, the view in favor of expanded access to courtrooms is strong. However, this right of access, as promoted by and inherent in the guarantees of the First and Sixth Amendments, will not be fully vested in the people until the public is allowed access to all proceedings, or at least to those not involving highly sensitive and/or exceptional issues. This, it is argued, cannot occur without the expanded involvement of broadcast. Thus, a return to the core of those ideals originally envisioned through the First and Sixth Amendments is necessary. In other words, the rights guaranteed through these amendments would be greatly enhanced by harnessing for the good the often rightly maligned medium of broadcast.

Beyond these loftier constitutional ideals there lie very common sense and practical reasons supporting the idea of cameras in the courtroom. The practical argument contains two very simple and digestible parts: first, that the lens of media, acting not on its own behalf but on behalf of and for the public at large, provides an accountability check on the judicial branch, both judge and participant, and second, that the greater accessibility and ability to view the inner-workings of a court through media serves as perhaps the best tool for educating the citizenry about its heretofore least visible branch of government.

As to the accountability argument, a cameras impact on the behaviors and actions of a judge are fairly easy to comprehend. However, the accountability argument applies to others as well. Indeed, it can be said that, in so far as the administration of justice is enhanced by greater courtroom access and visibility, the public benefits from its own inclusion. Scholars pointing to early social commentators, including the influential Alexis de Tocqueville, have made clear that “the core interest underlying the jury trial is that of the jurors rather than the parties. And the citizenry's interest in a jury trial transcends that of the twelve jurors. The public benefits from having ordinary citizens monitor judges, the police, and prosecutors.”

The educational component of the argument in favor of the proliferation of cameras in the judiciary is, in these modern times, perhaps even stronger. Of course today, much of what the populace learns of its government it learns through the medium of television. The benefits of greater visibility through broadcast can not be understated. As concluded by one observer: “students, educators, and lawyers would additionally benefit by being able to observe ‘firsthand,’ via the broadcast and videotape, the trial and its participants.” Needless to say, this type of benefit would greatly assist a populace already somewhat bewildered by and distrusting of the judicial process.
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Completely decimated houses with only a slab remaining will look similar to the jury, regardless of the cause of damage. Therefore, there is a genuine danger that showing a video from another location with different damage patterns, but that appears similar to the properties in question–only a foundation slab– will confuse the jury. For instance, a video’s depiction of properties destroyed by tidal surges in Biloxi might appear similar to post-storm Bay St. Louis properties, where tornadoes and significant wind damage commonly destroyed properties. The introduction of such a video at trial would likely mislead a jury to make the assumption that if the storm is the same and the post-storm property appearance is the same, then the cause of damage for Plaintiff’s tornado-ravaged Bay St. Louis property must be similar to those in the Biloxi area. Thus, that video’s prejudicial value would greatly outweigh any probative value it may have, and it is more likely to confuse the jury than assist it.

Federal Courts have recognized that Rule 403 is triggered by videos displaying a similar event with different circumstances. In Melberg v. Plains Marketing, L.P., the District Court held that the evidentiary value of displaying National Highway Traffic Safety Administration (NHTSA) frontal crash test videos was substantially outweighed by danger of unfair prejudice, confusion of issues, and misleading of jury, since events depicted in motion pictures of dummies were different than events of collision at issue in instant personal injury litigation.” Melberg v. Plains Marketing, L.P., 332 F.Supp.2d 1253 (D.N.D. 2004), (“NHTSA crash tests were frontal collisions with no offset, whereas collision in instant case involved offset of 30 degrees from direction of roadway, dummies were restrained by occupant restraint system whereas motorist was unbelted and unrestrained, and significant skid marks before collision indicated that motorist reacted to imminent collision, but anthropomorphic dummies did not react to outside stimuli.”) Additionally, in Hairston v. Washington Metropolitan Area Transit Authority, in holding that the probative value of an EEOC letter was outweighed by its prejudicial effect, the District Court found that because a letter itself discussed no facts about the case at bar, but rather provided a legal conclusion, it had little probative value. Hairston v. Washington Metropolitan Area Transit Authority, (1997 WL 411946 , not reported in Fed. Supp., (D.D.C., 1997.)) Further, the Hairston Court recognized that if the letter were to be offered into evidence, it would be likely that additional time at trial would be spent “attempting to explain what this..[letter]..means to the jury.” Id. In the same way, the Katrina video discussed above did not portray facts about the property in question, but rather drew a conclusion based on a set of dissimilar circumstances. Moreover, a sizable amount of time would be necessary to explain the proper significance, weight and scope of the video, if it were introduced.

The introduction of these videos has been attempted to explain general wind and tidal conditions created by Hurricane Katrina and the potential effect on a Plaintiff’s home. However, if the wind and tidal conditions offered in the video are dissimilar to those conditions near Plaintiff’s home, than any such “potential effect” would likely be misplaced. Additionally, if the video is only offered in support of expert testimony and not as substantive evidence itself, then other support could be easily generated of a more traditional nature which would not confuse the jury. Thus, the prejudicial effect of the certain resulting confusion, additional evidence and testimony necessary to address these unclear issues, and the potentially misplaced weight that the jury could assign to this video, greatly outweighs any probative value that the video possesses.

On June 27, 2007, an Order was entered in a case in the Southern District of Mississippi, Eleuterius v. State Farm & Casualty Company, Case 1:06-cv-00647–LTS–RHW, in which the Court held that this kind of video should “be excluded because ‘its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, [and] by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ Fed.R.Evid. 403.” State Farm’s subsequent response was to claim that Eleuterius is dissimilar to other Katrina cases, because there the video was initiated later in the case. However, the Court’s Order was not based on procedural concerns; rather, the Court made a substantive finding that the video’s prejudicial effect would substantially outweigh its probative value, because of “unfair prejudice, confusion of the issues, or misleading the jury....”. Because of its violation of Rule 403, the video was properly held to be inadmissible. This ruling recognizes the danger of jury confusion that could result from a video’s introduction of dissimilar Katrina conditions, and will likely provide applicable precedent for similar exclusions in the future.

For information on how to enforce claims for property damages caused by Hurricane Katrina on the Mississippi Gulf Coast, call Thornhill & Collings, (985) 641-5010.