David Cameron and Kenneth Clarke are reported with some fanfare as promoting a limited form of television courtroom broadcasting, namely the televised broadcast of criminal sentencing decisions. This therefore goes beyond the existing Supreme Court form of courtroom broadcasting, which we may recall was not a change per se but merely reflected the immediately preceding appellate House of Lords practice.
The mainstay of the political push for sentencing broadcasts appears to be the political opinion that it will enhance public education or public confidence in the judicial process. Unfortunately, there is no body of empirical research to indicate that this is the case with the existing Supreme Court or with televised courts in other jurisdictions.
An examination of effects issues and concerns reveals that there is far too little empirical effects research. There appear to be just over 20 empirical effects studies, despite the first televised courtroom broadcast being in 1953 and the US Supreme Court calling for more empirical effects research (in Estes, Chandler and Hollingsworth).
Regardless of arguments for and against courtroom broadcasting, the Cameron proposal appears remiss in not considering and requiring that empirical effects research be undertaken. In addition, it is also important that such research begins prior to cameras being introduced in the courts. Unless this occurs, the baseline date against which effects should be measured are lost, and this undermines the quality of later research. It remains to be seen if this will occur, or even be considered.
In terms of the general political assumption, that all television courtroom broadcasting will be educational and will enhance public confidence in justice, what does the limited research to date say?
Given that the first US television courtroom broadcast was in 1953, it is surprising that there are just over 20 empirical effects studies. This is far too limited a body of research on which to base our legal and policy decisions. Further points of concern arise.
67% of the public felt in New Zealand research said that the broadcasting experiment was not educational. The New Zealand research found conventionally reported cases more educational. The issue of education was also referred to in a New York experiment, yet no educational effects were shown to accrue. Kermit Netteburg did not find any educational effect, nor any enhanced knowledge about court procedures. Jessica Ossinger did not find any enhanced usage of television courtroom broadcasting. Ralph E. Roberts found no evidence of an increase in educational effects.
Researcher William Petkanas found that ‘confidence’ did not increase as a result of television courtroom broadcasting. D.A. Harris also found that confidence in the justice process did not increase.
Steven Kohm found that television courtroom broadcasting was used for entertainment programming. Similarly so in the research of C. Danielle Vinson and John S. Ertter. Theresa Keller found that television courtroom broadcasting did not increase the number of legal and court stories broadcast. Roberta Enter found that the courtroom broadcasting she examined was biased and presented the defendant unfairly. Entertainment and excitement were emphasised instead.
The first US federal pilot experiment study found that most courtroom footage was dubbed over and the audio from inside the court was not used. It also found that the courtroom footage was mostly used as short snippets. Wendy Pogorzelski and Thomas W. Brewer found the average length of stories to be 215 seconds, of which 78 seconds (36%) was in-court footage and 47 seconds (22%) was in-court audio. The first federal pilot experiment study found the average courtroom footage per story to be 56 seconds. 74% did not explain what transpired in the day’s proceedings. The ‘stories did not provide a high level of detail about the legal process … [and] increasing the proportion of courtroom footage used in a story did not significantly increase the information given about the legal process …. the coverage did a poor job of providing information to viewers about the legal process.’ Pogorzelski and Brewer point out that almost two-thirds of footage was out-of-court footage (eg presenter or expert comments).
The New Zealand study also found that judges were distracted. It found too that 58% of the public would be less willing to testify as witnesses if there was television courtroom broadcasting.
The current proposals have some way to go in order to assure us that adverse effects can be minimised, that effects can be properly researched and finally that the proposition that there will be enhanced educational and confidence effects will be measured and researched for successful result outcomes. It is time for the US Supreme Court challenge to be properly addressed. It would be a missed opportunity to proceed without effects research being incorporated into the present proposals. The debate would remain rooted in mere supposition and opinion.
Paul Lambert is a lecturer, solicitor and author of the forthcoming book, Courting Publicity: Twitter and Television Cameras in Court (Bloomsbury).
