Judge Steve Schuster, Cobb County Superior Court Judge Steve Schuster, Cobb County Superior Court (Photo: John Disney/ALM)

Acknowledging that recording technology has changed significantly in the last two decades, the Georgia Supreme Court has approved a rewrite of the rule governing such devices in the state’s superior courts.

The order authorizing the revised Rule 22 points to developments in technology, the news media and “significantly, in recording devices—namely, the smartphones and other mobile computers with recording capabilities that today are routinely carried and used by most people in this state” in authorizing the updated regulations.

The old Rule 22 was crafted in 1985, and for well over a year the Rules Committee of the Council of Superior Court Judges has been consulting with the justices, other judges and members of the legal and media communities to bring the rule into the 21st century.

“Open courtrooms are an indispensable element of an effective and respected judicial system,” the rule states. “It is the policy of Georgia’s courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media who will report on the proceedings to the public.

“This must be done, however, while protecting the legal rights of the participants in the proceedings and ensuring appropriate security and decorum.”

Among the new rule’s provisions:

  • Jurors and witnesses must turn off any recording-capable devices while in court and may not record any of the proceedings.
  • Parties and spectators can only use recording devices when specifically authorized by the judge and must turn them off in the courtroom “unless the judge allows orally or in writing the use of recording devices in the courtroom for purposes other than recording sounds and images.”

That decision is up to the judge when he or she believes such use would not be disruptive or distracting, and the devices must be silenced and may not be used to make or receive calls unless the judge says otherwise.

  • Attorneys and support staff like paralegals and investigators, as well as pro se litigants, are permitted to make recordings of court proceedings “in a non-disruptive manner” after announcing that they’re doing so.

They may also use their devices for nonrecording purposes, such as accessing the internet, texting and word processing, as long as the devices are in silent mode.  

  • No recording of courtroom procedures may occur when the judge is not present, unless he or she has given permission.
  • As under the old Rule 22, members of the public, including the news media, must submit a prepared request form to the court in order to record courtroom proceedings.

The rule advises that such requests should be submitted “at least 24 hours where practicable under the circumstances to allow the judge to consider it in a timely manner.”

The court must then notify the parties of the request, and if they, their witnesses or—in criminal cases—the victim objects, the court must schedule a hearing to address those issues.

If such a request is denied or a party objects to the court’s ruling, that decision is reviewable “as provided by law.”

Cobb County Superior Court Judge Stephen Schuster, the chairman of the judges council’s Rules Committee, oversaw the consultations and drafting of the new Rule 22.

“This rule is the product of a multi-year process aimed at balancing the growing advances in technology and media coverage with protecting the legal rights and safety of those who rely on our courts,” said Schuster in a release announcing the justices’ approval.

“The new Rule 22 expands access to our courts throughout Georgia and was a collaborative effort that reflects the valuable input of many people and groups,” Schuster said. “I am very grateful to all those who participated.”

Some of those participants also welcomed the new rule, albeit with certain reservations.

Gerry Weber, senior attorney with the Southern Center for Human Rights, hailed the rule as “the product of sweat and toil by the Georgia Supreme Court and Council of Superior Court judges.

The new rule is a major improvement to adjust for the reality of cellphones, but the real proof of the rule’s effectiveness going forward will be whether judges fully embrace the goal of transparency,” Weber said.

Ashleigh Merchant of Marietta’s Merchant Law Firm, a criminal attorney and chair of the Georgia Association of Criminal Defense Lawyers’ Legislative Committee, said she was particularly pleased that the new rule allows paralegals, investigators and assistants to use their devices as well as attorneys.

Merchant also welcomed a change in the final version barring recording only when the judge is out of the courtroom.

“This is a much better rule, because now recording can take place while a judge is off the bench and court is not in session but the judge is still in the courtroom,” Merchant said.

But she expressed concern with the provision that requires the parties to notify their witnesses of a Rule 22 request.

“I can understand notifying the parties,” said Merchant via email, “but notifying all witnesses could prove cumbersome for attorneys, and I am concerned about our ability to comply with this notice requirement for witnesses who, perhaps, are not in the courtroom during the Rule 22 hearing.”