Courtroom TV and the Destruction of Justice

April 08, 1994|By GEORGE W. LIEBMANN

Why should one oppose Senate Bill 13, which would authorize the broadcasting of criminal and other trial proceedings without the consent of judges, jurors, litigants and witnesses?

Trials are not referenda. They involve the vital rights of individuals, frequently unpopular individuals. Properly conducted, they involve the close attention by triers of fact over a period of days, to varied evidence. Some of the most significant evidence may be documentary, or otherwise undramatic. The work of triers of fact also involves assessment of the expression and demeanor of witnesses and is best carried out with a minimum of distractions.

For a trial to be just, neither witnesses nor jurors should fear personal abuse or physical violence as a result of their testimony or judgment. For a verdict to be meaningful, acquitted defendants should be spared personal obloquy, second-guessing of verdicts, or pressures for double jeopardy. Victims of crime should be permitted to walk along the street unrecognized. And jurors should be accorded the respect due to those who have viewed not merely snatches of, but all the evidence, and who have done so in order to do justice and not for the purposes of entertainment or titillation.

Courtroom photography and television does violence to all these interests. Witnesses are placed in fear of criticism by strangers who have heard only fragments of evidence, and fear of violence by sympathizers of the accused who are readily enabled to recognize them.

Jurors are similarly subjected to intimidation; even if they themselves are not televised, large numbers of partially informed persons will feel qualified to criticize their verdict or comment upon the evidence, and juror sequestration will be imperative during any televised trial, thus narrowing the range of persons who will be able to serve as jurors.

Inevitably, jurors will be invited to assess, not the facts before them, but the probable public reaction to excerpts from those facts. Merely by the fact of accusation, defendants will become public figures, and even if acquitted will suffer loss of privacy. If a verdict is unpopular, pressures will arise for commutation on the one hand or prosecution by another level of government on the other. Thus defendants' fates become the product of political rather than judicial judgment.

It is said that witnesses may be protected by shielding their faces, thus further distorting broadcasts by denying viewers the opportunity to assess demeanor or credibility. It is said that the process of photographing takes place anyway and is not disruptive, but what will be disruptive is the knowledge by

parties, witnesses and jurors of the public referendum that is to ensue.

It is said that all that is being done is projecting to a larger scale the public trial of the American small town. But this is the most pernicious argument of all; in the small town, the onlookers know all about the parties, the witnesses and the context; in the setting of television that context is supplied, by the overlords of television, who will decide what trials are to be broadcast, what comments on them are to be made and what sensational excerpts are to be shown.

Fifty years ago, Judge Learned Hand warned us:

''The hand that rules the press, the radio, the screen and the far-spread magazine rules the country. . . . It is the power of reiterated suggestion and consecrated platitude that . . . has brought our entire civilization to imminent peril of destruction. The individual is as helpless against it as the child is helpless against the formulas with which he is indoctrinated. . . .''

The habit of trials of individuals, on individual facts, by juries drawn from and disappearing into the community, is one safeguard we retain against development of such a society.

We do not need the titillation supplied by the televised Smith, King and Bobbitt cases, destructive alike of justice, taste, order and liberty. Nor do we need a series of highly publicized show trials, in which the community's racial, political or cultural prejudices, rather than consideration of the evidence, dominate the result. We regard mass adjudication of individuals as abhorrent when carried out in China. Why do we seek to introduce it here?

George W. Liebmann is a Baltimore attorney who testified against Senate Bill 13.

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