The Watcher. I'm Watchin'! asks Adrian Kamada, Stacey Eads, Michael Acosta…
public access & zoom hybrid hearings on YouTube
Last year and in 2020, the public had the ability to view court hearings that were public, via a streaming video uploaded by the court tech team to YouTube for each courtroom, which provided transparency and public viewing opportunity when public access to the courthouse was limited during lockdown. This option was a great benefit to the public, allowing community members to follow court cases they were interested in or were associated with, apart from being physically present in the courthouse. This option has stopped being available, although is still advertised as available to the public for Trials. This is not the case, and the links no longer actually function on YouTube. Would you consider keeping this option open for transparency in public matters such as family court and for criminal court, for example? Why or why not?
— The Watcher. I'm Watchin'!
Whatever benefit the Court saw in discontinuing public video access to the courtrooms could not possibly outweigh the benefits of continuing that access. I was very disappointed when it was removed. The premise is still valid, which is that we largely have open public courts, yet we all would strongly prefer to remain healthy. The courthouse, simply due to the number and variety of its staff and visitors (not all of whom are there voluntarily), is a petri dish for the rapid spread of viral infection through elevator buttons, door handles, metal detector trays, public computer keyboards, and, let’s not forget, all that paperwork being handed around the courtrooms. If the health protocols of the pandemic were the best practices, then I don’t see how they are still not the best practices, and we don’t always get advance warning on major epidemics. In addition, you have to wonder about the soundness of the court’s management decisions, having invested all that time and money into video equipment and training (including ZOOM rooms at the jail for inmates, website development for the public, LCD monitors for the courtrooms, and controllers for the judges, inter alia) and then one day the whole setup is just scrapped? Unfortunately, it is entirely the Superior Court’s prerogative, and not at all a decision involving the District Attorney’s office.
How did Charles Dickens put it? “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity…”
We saw the video public access to court proceedings come, and then watched it go.
The short answer is that the District Attorney lacks the authority to make court hearings available through video streaming platforms like YouTube or Zoom. That power rests with the court. But the D.A. can present persuasive arguments to the court on why allowing video streaming access furthers accountability and our constitutional principles.
The Sixth Amendment of the U.S. Constitution guarantees the right to a “public trial.” The public, and the press, have a broader right to observe court proceedings under the Constitution’s First Amendment protections. Generally, the court’s power to limit public access requires a compelling reason and must be narrowly tailored to the circumstances.
That said, the court satisfies that standard by making the court available to the public and the press through an open courtroom that allows people to attend in person. When the state closed the courts during the earlier stages of COVID-19 pandemic, it turned to those video streaming outlets to allow public access.
When the COVID-19 restrictions faded away, so did the video streaming access. Generally, people sitting in the courthouse all day have a substantial personal interest in a particular case (or professional interest if press). But when there is video streaming, the balance of interests becomes more complex. The court must provide public access, but also seek to protect individual privacy interests.
Of course, juvenile cases are confidential. And it makes sense to decline or limit broadcast in adult court hearings that involve minor victims, and/or victims of sexual assault or domestic violence. For example, when YouTube was broadcasting last year a deputy district attorney elicited testimony that compromised the identity of a young survivor. That is a breach of the duty to protect victims.
Also consider that the court does impose strict rules against persons recording or taking photographs in the court. Under Local Court Rule 1.12, the court prohibits people from recordings in the courthouse unless approved by the Presiding Judge. The justification is protecting, from obstruction, intimidation, or invasion of privacy, of court employees, parties in a case, witnesses, jurors, or prospective jurors. That said, when the court is in control of the scope of recordings, it is the best position to implement simple measures to protect the privacy interests of courts staff and users while balancing the public’s right to access to process.
There is a balance to be struck. I am a proponent of allowing most cases to be livestreamed as it is important component of government accountability. But a sensible policy can be implemented that protects victims of crime.