Andrew L. Urban.
The recent world famous Kyle Rittenhouse trial was televised, live from the Kenosha Court; had it not been, the malicious misrepresentations of the case which most mass media echoed would have left the public unaware of why the jury acquitted Rittenhouse on five charges, including two of murder. The 2020 mid-protest confrontations were recorded and played in court for all the world to see. But in most cases, without footage of the alleged crime, it is not only the jury but the appeal court that may find it useful to view the court proceedings.
On Saturday morning, November 20, 2021 (Sydney time), shortly after the verdict was announced, it was Fox News Media Buzz host Howard Kurtz who first pointed out how the cameras showing the Kyle Rittenhouse trial in Kenosha, Wisconsin, enabled the whole country (and world) to see the video footage played in court that was so critical to both prosecution and defence lawyers. (The prosecution has been criticised, among several other things, for taking the matter to court, given the visual evidence.) Legal commentator Jonathan Turley called it “a triumph of the cameras in the courtroom”.
Images of Rittenhouse being attacked while having fallen to the ground may well have served another purpose: discouraging violent eruptions that were feared in the event of not guilty verdicts. Only the most ideologically blinded viewer could have failed to recognise that Rittenhouse was defending himself. Even a key prosecution witness, wounded by Rittenhouse, told the court he was shot when he pointed his handgun at the 17 year old on the ground in front of him. All the participants were white, but Rittenhouse was painted as a white supremacist. Without the video evidence, this would have inflamed the angry, misinformed mob peddling that narrative. (Inexcusably, that included then Presidential candidate Joe Biden, labelling Rittenhouse a white supremacist before the matter got to court.)
This post is not about the case per se (for a start, it is not a wrongful conviction); we want to examine the potential benefits of having cameras in court, which many judges in the US allow.
The Rittenhouse case is unusual in that the actions for which he was indicted were captured on video in considerable detail. It was that footage that enabled the jury (and us) to see exactly what happened. The footage, better quality than the CCTV footage sometimes played in court showing crimes in process, was shot by an eye witness who could follow the action as the participants moved around.
The cameras in the court itself recorded those images as they were played for the jury; the whole world could see them, and see them in the context of the trial, with counsels’ presentations.
Having cameras record criminal trials has never been seriously debated in public here in Australia. Let’s draw up some debating points:
PRO CAMERAS IN COURT
- Openness – the public is able to attend & observe (in limited numbers), why not give access to a larger, wider public?
- Footage from the trial (professionally tagged) could be of great assistance to the jury during deliberations.
- Footage of criminal trials where the prosecution case is largely circumstantial, footage would greatly assist any appeal arising from conviction.
- Camera recorded proceedings would add a degree of discipline on counsel and the bench to stay within the relevant rules.
- Footage from criminal trials would greatly assist public understanding of court procedures as well as the specifics of any controversial cases.
- Witness testimony (body language, facial expression, speaking manner) which are part of the jury experience, would be available to all.
- Recordings of trials would assist in ensuring that reporting is fair and accurate (or is corrected if not).
CONTRA CAMERAS IN COURT
- Cameras would inhibit or encourage (to grandstand) counsel and the bench.
- Some counsel may ‘perform’ for the cameras rather than serve the interests of justice.
- Privacy issues might make recordings of court proceedings difficult.
- Selective excerpts from footage may misrepresent the evidence.
- The additional costs of providing camera recordings would add a financial burden to the state’s justice system.
- The presence of cameras and equipment would interfere with court processes.
Footnote: Judges would retain the final decision about allowing cameras in court for each trial. Footage would be recorded by contracted service providers. Strict guidelines would apply to editing.
THE PRINCIPLE OF OPEN JUSTICE
The principle of open justice is a fundamental aspect of the system of justice in Australia and the conduct of proceedings in public is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 per Spigelman CJ at [18]. However, in appropriate cases courts have jurisdiction to modify and adapt the content of general rules of open justice and procedural fairness and to make non-publication orders for particular kinds of cases: HT v The Queen [2019] HCA 40 at [44], [46].
Section 6 of the Suppression Act requires a court deciding whether to make a suppression or non-publication order, to take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. Section 6 must be considered even if one of the grounds of necessity under s 8 (see further below) is established: DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [30]. Decisions since the commencement of the Act confirm the continuing importance of the open justice principle: Rinehart v Welker (2011) NSWLR 311 at [26], [32]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at [9]; Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159 at [52]-[53]. Section 6 also reflects the legislative intention that orders under the Act should only be made in exceptional circumstances: Rinehart v Welker at [27].
The public interest in open justice is served by reporting court proceedings and their outcomes fairly and accurately: AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [101]; John Fairfax Publications Pty Ltd v District Court of NSW (2004) NSWCA 324 at [20]. In some cases, where reporting of particular proceedings is misleading, emotive and encourages vigilante behaviour, the message disseminated may be “antithetical to institutionalised justice” and a non-publication order may not compromise the public interest in open justice: see, for example, AB (A Pseudonym) v R (No 3) at [102]-[110].
(From: Criminal Trial Courts Bench Book – Trial Procedure)
The UK Supreme Court has installed Panasonic PTZ cameras for accurate legal recordings and transparency at the highest court in land.
camera in court
The system passed its first high profile test with flying colours when it broadcast the judicial review of the prorogation of Parliament last summer; images that were seen by 4.5m people at its peak and an audience of 10m people across the day.
Three court rooms at the Westminster building have each been equipped with four Panasonic HN130s, a RP150 camera controller and a NewTek Tricaster to efficiently record the high-profile cases. The policy of the court is to record and broadcast hearings, in keeping with its commitment to transparency. Since its creation, all cases have been archived on their website ensuring fair and open access to all.
“We need PTZs because it’s not practical in a court room to have an operator manually controlling the cameras,” explains Dan Money, a technical architect and IT Manager at the Supreme Court. “You need a constant shot of the Justices’ bench, a back and front shot, and both a wide and close up shot to gain an understanding of what is going on in the court.”
“PTZs are the least intrusive option that guarantees transparency in the courtroom but they also give the camera operator the right level of control and ensure shots of high production value,” explained Dan. March 5, 2020, Digitalstudiome.com
Are juries hand picked so as to have easily manipulated types–the more one reads of the “STUFF” that happened in THAT court of Justice–surely a few jury members with a brain should have smelled a big fat RAT . TasPol and there cohorts–with the contrived , ludicrous — explanation for the DNA. And the behaviour of the JUDGE should have by itself — been a warning that a thought out plan was under way ! 10 other jury members of a JURY I was on thought nothing—were they a bit– or even bloody thick– of the fact that the jury foreman had been a jury foreman in previous guilty verdicts– he proudly proclaimed ! This was his third jury he spoke about– were their others ? — Christ- he might have been up Palm is. way ? There could be no reason — that a jury could not be made to explain their decision–have their head in a bag . Just make sure you don’t have a mouthful of porridge– You might spray it all over the kitchen–How was it that only ME–flew of the handle in the jury room about the extra info about the accused being delivered by the Jury Foreman for the Prosecution ! The jury should have been dismissed–but it obviously was going to deliver the required Verdict– once I was told to piss orf ! The best piece of legal advice I was ever given– ” You won’t win– they lie their effin guts out”- This was in a very minor traffic thing .What the hell does they do–in a hanging offence ? We know what “they” do . We are reading the scenario–the whole can of worms– Their mummies would be proud– specially if she was retired TasPol .
One should know that if the complete system is changed-(the hierarchy)- then the little lovelies youse get rid of– are replaced by just another set of swine– was it Shakespeare– Some thing about the AMBITIOUS stabbing and getting stabbed– you could make a comment about what floats to the top– and it ain’t the cream. Good people might rise to the top- accidently . The usual method in the Political-Legal-Police-Justice System–is not admirable– bloody horrible if one delved into it ..Take a look at the “DEAR LEADERS” of the world. funny thing is– some of them think Jesus will have them at his place ? Persons that LOCK another innocent person away and refuse to fix the increasingly obvious miscarriage–and we’re involved in the repulsive behaviour that caused this EVIL– well- I don’t believe in capital punishment–how about whipping or the stocks ? Or an equal term of imprisonment ? The victim should be given the whip hand !
Why are Australian Police Forces sometimes so rotten that new Commissioners have to be recruited from other “necessary evil” outfits–is it because NOT ONE Qualified-even remotely descent replacement from within the ranks of that state– can be found ! Doesn’t this just leave all the other necessary evil little dears behind to lie their effing guts out, etc ,etc –take a close look at the treatment of Darryl Beamish and the reward he received for 15 years in prison — the reward to the lovely piece of work that got him sentenced to death–was made Police Commissioner.How about the little dear who decided that the appropriate compensation was $450,000 for 15 years in one if our marvellous prisons .That State Attorney may have just been disgraced now ! . Did you know that a routine admissions procedure in Bathurst was a bashing in the chief warders office- Another bunch of thugs. WAS-the jury foreman in that ludicrous case a specialist appointment–A close look at secret juries– to stop the saintly prosecutors stacking the jury–any one who argues that juries can’t be stacked should read the method used to do just that– in the home of wrongful– QLD. The names of potential jurors should be completely public knowledge–not necessarily the names of jurors on a particular trial– but the identy of all jurors on the pool–to stop the stinking little dears– doing their thing–a jail term for any prosecutors who attempts to install a jury foreman for the prosecution. You can read– in detail how this is done in QLD.How can a jury foreman have been on 3 juries before– bit fishy- that’s the QLD system of justice– makes ya proud !
My greatest concern is that this young man will be feted and applauded by others, become a hero, maybe even a spokesperson, for right wing groups of bully boys who will use him to their advantage. He will be the poster boy for civilian terrorists. He has already been photographed with members of the proud Boys “gang”. He has been radical-ised already. He was (illegally) supplied with a high powered rifle, which he took from one state (?) to another, with the intention of using it! Did he think it made him look like a man? Or did he think at all about the outcomes? Surely, nobody, even a stupid little teenage kid, packs a rifle in their car, without thinking of what could happen! Or do these silly little boys think that these acts are okay, for their “type” but not for others. Did his mother and/or father condone or encourage their son to do this? It is not something I would allow my son to do, would you? My daughter and her family live in the States. Everyday I fear that there will be some sort of violent action, near them, by a person like this, that will affect my grandchildren’s lives. GUN VIOLENCE SHOULD NOT BE NORMALISED OR APPLAUDED! (anymore than the “now look what you made me do” defence, often used by domestic violence offenders and their lawyers.) Remember the song: “don’t take your gun to town son, leave you gun at home Bill (or Jim or whomever) leave your gun at home son, don’t take your gun to town…” This little creep now (probably) thinks he can get away with ANYTHING! And others will copy…
Your comment reveals how little you know about this matter – and this young man. It is not my role to inform you; I suggest you do some basic research to get all the facts before you comment on them. And I will just say your fears are rather exaggerated.
I agree Jerry. Before leaving home he filmed himself, armed, saying he intended to take his rifle and protect fellow protestors. The fact that three opposing protesters attacked him and he was then in fear of his life wouldn’t have occurred if 1) he’d stayed home and 2) he wasn’t armed with a rifle. Guns don’t kill people , people with guns kill other people. God save us from ever becoming a gun-toting’ community like the good ole US of A!
If ony they’d ALL stayed home …
In what I do, writing true crime books, it’s essential for me to attend trials. Reading the transcript , or watching on video from another room just doesn’t provide the nuances and the atmosphere of being there. I think all trials should be recorded and that Appeal judges should see footage of cases under appeal as a matter of routine. No need to worry about the barristers playing up to the cameras, most of them bung on the histrionics for the jury anyway!
Andrew, I take your point, “ This is not about the case per se”. However I give credit to anyone who has the resources to publicly even raise this disgraceful matter. Only in America could we vision what occurred here. Thank God we live in a country where the liberty to carry a firearm is not so openly abused.
I agree totally, evidence such as was provided clearly demonstrated that this young man was defending his life. There is no doubting that however, when he travelled from another state, family commitments or not, what were his intentions, a key decision in any murder trial. Who travels interstate, even to protest, with a high powered rifle? I ask you. Did this young man intend using that rifle, knowing fine well that a protest is about showing your disapproval towards an opposing protester. Did this young man believe or even know he was being telerecorded. No, I don’t think so. The use of a camera shows more. It shows the whole environment, which I think you are arguing to be allowed in court but, in this dreadful case, this young man parading with his high powered rifle reminded me of a vigilante mob parading, abusing a law that thankfully we are not accustomed to in Australia. Cameras in court, YES but, a true and transparent account of all the evidence is also essential and an open and honest prosecutor is furthermore essential. We do our best to live according to the law, why shouldn’t they?
Jerry – Most of what you wrote is reasonable, but Kyle didn’t travel interstate with a rifle. The rifle came from the home of the friend he stayed with in Kenosha. And the distance Kyle travelled from interstate is only 20 miles, not that far.
That’s not the point. The point is that video evidence is powerful and should be used more. And obviously as many trials as possible should be video’d and audio’d. It’s embarrassing when Australian court cases, in this day and age, are not video’d. The courts should keep up with the latest technology, and not live in a bygone era. It feels like our courts are run by old people who don’t care much about using modern technology.