Image by hirnrinde
The New Jersey Supreme Court's Bench-Bar-Media Committee is pitching new rules that would establish a presumption of permissibility for using electronic devices in court, albeit with prior approval.
The subcommittee report, approved by the full committee and forwarded to Chief Justice Stuart Rabner on July 14, proposes a consistent procedural framework for allowing such devices in the courts, including the Superior Court, the Appellate Division, the Supreme Court, the Tax Court, and the municipal courts.
The proposed revisions recognize that the general right to use devices with recording capabilities is "no longer a right limited to the media," says subcommittee chairman Thomas Cafferty, a partner at Gibbons in Newark and general counsel for the New Jersey Press Association.
Judges already are being asked to decide the issue by those seeking to bring in recording devices, and the new guidelines would provide "uniformity and guidance," Cafferty says.
Contemplated in the revised guidelines would be "any device, including any portable device, that has the capability to transmit, broadcast, record, and/or take photographs" and "any other similar electronic devices whether new in existence or later developed."
The report proposes several changes to the existing guidelines governing cameras in the courts, approved in October 2003. As per the new guidelines:
• electronic devices would be allowed for any purpose on courthouse grounds, pending approval from the county sheriff or other security authority.
• In common areas of the courthouse, anyone would be allowed possession of an electronic device for purposes other than to photograph, record, or broadcast.
• Anyone seeking to operate an electronic device in the courtroom would have to first sign an "Agreement for the Use of Electronic Devices" and submit it to court administration. The agreement, valid for one year, includes an acknowledgment that violation of the guidelines could result in sanctions, including contempt of court.
• Execution of the agreement would allow use of an electronic device in the courtroom "to silently ... take notes and/or transcribe and receive data communications in the form of text only, without obtaining prior authorization from the court," subject to restriction if such use "interferes with the administration of justice, poses a threat to safety or security, or compromises the integrity of the proceedings."
• Anyone seeking to photograph, record, or broadcast a court proceeding would have to execute a second form requesting permission to do so, or make an oral request if time constraints preclude a written request. A request could be made for an individual proceeding or for all the proceedings in a given matter. The court would not need to condition granting permission on the consent of the parties or attorneys -- though it may consider their input -- and would be required to make a decision within 24 hours of the request.
• The requestor also could photograph, record, or broadcast in the common areas of the courthouse, provided that the subjects are involved in the proceeding for which permission was granted, and that he or she consents.
All attorneys licensed in New Jersey will receive a copy of the guidelines and the agreement with their annual Lawyers' Fund for Client Protection annual form, and any attorney seeking permission to use an electronic device inside the courtroom must execute the agreement and return it with the FCP form. Attorneys would be governed by the same provisions as others seeking use of devices.
Excluded are any proceedings closed by court order or statute.
Certain photographs, recordings, or transmission are restricted, such those capturing a minor's image. Only still photos and silent video of attorney-client conferences and sidebars are allowed. Any photo, recording, or broadcast allowing for identification of a juror also is prohibited.
A court may further restrict or exclude devices where "such coverage would cause a substantial increase in the threat of or the potential for harm to a litigant, juror, witness, or any other participant in the case or would otherwise unduly interfere with the integrity of the proceeding."
A court may require the requestor to appear at a pretrial conference in order to decide if permission will be granted, during which any parties may object to recording the proceedings. The objecting party may move for leave to appeal the decision.
Additional requirements are proposed, including that no recording will be admissible as evidence or used to challenge the accuracy of the official court record; any requestor granted permission to record proceedings must provide pooling capabilities to allow others to share coverage; that only necessary recording equipment be brought into the courtroom; and that anyone operating a device must assume a fixed position.
Comments on the guidelines are due to Judge Glenn Grant, acting courts administrator, by Oct. 28.
Committee Chairman James Zazzali, former chief justice and currently of counsel at Gibbons, requested an examination of the issue about two years ago and created the subcommittee, which looked at other states' guidelines and sought input from outside groups on the matter, Cafferty says.
Cafferty says the proposed revisions are partly driven by the increasingly blurred distinction between media and non-media, adding that who wears the "media" tag has become a challenging question unto itself.
"It's probably not productive for the Court to try to make those decisions," he says. "It probably matters not if the person using [the device] is with The New York Times or a blog."
The court specifically requested comment from the New Jersey State Bar Association, whose sections and committees are reviewing the proposal, President Susan Feeney said in an e-mail. She added that the board of trustees likely will consider the proposal at its Oct. 14 meeting, but declined further comment.
Subscribe to New Jersey Law Journal
