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Op-Ed

Throw open the Prop. 8 video records

It is time for the courts to acknowledge that video records are a natural, lawful and useful evolution in the American judicial tradition of open court proceedings.

August 29, 2011|By Lucy Dalglish

"What transpires in the court room is public property." Writing those words in 1947, the U.S. Supreme Court affirmed a principle so intrinsic to our national character that it predates the Declaration of Independence.

America's founders believed that justice was facilitated by openness. In 1774, the first Continental Congress specifically stated that trials should occur "in open court, before as many of the people as choose to attend." Their reasoning was that public openness would ensure the honesty of judges, witnesses and jurors, who could not "injure [the defendant] without injuring their own reputation."

This concept was both simple and elegant: Open courtrooms provide a citizen's check on the justice system — so that those who fail to fulfill their duty in court honestly and competently are exposed, their testimony scrutinized, their character considered.

In today's fast-paced, globalized, digital society, audiovisual records are the best way to bring a trial or court hearing to life and to throw open the doors of our justice system to "as many of the people as choose to attend," not just those lucky enough to sit in the courtroom.

On Monday, a federal district court judge will consider whether to make public the video recording of the 2010 Perry vs. Schwarzenegger trial regarding California's constitutional amendment banning gay marriage, Proposition 8. It's astonishing that in the digital age, this issue is still even being debated.

Proponents of Proposition 8 contend that the trial videos should be sealed to prevent the potential intimidation of their two expert witnesses who testified against gay marriage in this case, or the possibility of intimidation in unrelated hypothetical future cases.

The plaintiffs, who successfully presented strong evidence that persuaded the then-chief judge of the U.S. District Court for the Northern District of California to declare Proposition 8 unconstitutional, point out that these claims of intimidation are not only unsubstantiated but also moot, since the trial is over and the witnesses' names and testimony are already part of the public record.

There is a strong historical precedent for making judicial records public, and there is a vast and compelling public interest in this particular case. It is simply time for the courts to acknowledge that video records are a natural, lawful and useful evolution in the American judicial tradition of open court proceedings and judicial records.

The beneficial influences of such a video record have already been demonstrated in studies showing that witnesses tend to be more truthful, specific and detail-oriented when facing a camera they believe is recording their testimony.

Alex Kozinski, the chief judge of the U.S. 9th Circuit Court of Appeals, argued in a 2010 letter to the Judicial Conference of the United States: "It is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology." This is particularly true when that technology brings us closer to the ideals upon which our judicial system was founded.

The concept of an "open court, before as many people as choose to attend," is reinforced through the power of video: Virtually anyone who wants to "attend" or study a trial can now do so, and in a case such as Perry, where the lives of millions of Americans are materially affected by the outcome, such a development is clearly in the public interest.

Any time a court deals with a request to protect witnesses, it must weigh the potential harm to them against the potential disservice to the public interest. In this case, the plaintiffs in Perry argue there is no weighing of interests to be made: The trial is over; the witnesses have testified and their identities and testimony are already part of the public record. There is no record of harassment or intimidation, and there is no evidence that releasing the video records of the trial would cause it to happen.

But even if there were a legitimate concern about harassment, the disservice done to the public interest by not releasing the recordings would still outweigh that concern. The trial over Proposition 8 was a landmark case that affected millions of Americans, and they have both 1st Amendment and common law rights of access to the judicial record in all of its forms.

Lucy A. Dalglish is executive director of the Reporters Committee for Freedom of the Press.

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