SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
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THE PEOPLE OF THE STATE OF NEW YORK

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KENNETH BOSS, SEAN CARROLL, EDWARD MCMELLON and RICHARD MURPHY,

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Indictment No. 1814/99
(Hon. Joseph C. Teresi)
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IN RE
COURTROOM TELEVISION NETWORK,

Proposed Intervenor.
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AFFIDAVIT OF DOUGLAS P. JACOBS, ESQ. IN SUPPORT OF
MOTION OF COURTROOM TELEVISION NETWORK
TO INTERVENE AND FOR ENTRY OF ORDER TO
PERMIT TELEVISING OF TRIAL
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
DOUGLAS P. JACOBS, being duly sworn, deposes and says:
1. I am Executive Vice-President and General Counsel of Courtroom Television Network ("Court TV"). I submit this Affidavit in support of Court TV's mo-tion to intervene in this proceeding for the limited purpose of seeking to persuade the Court to enter an order permitting Court TV to televise the trial in this action, and for en-try of such order.

2. I make this Affidavit upon personal knowledge, information and be-lief. This Affidavit is accompanied by the Affidavit of Jonathan Sherman, Esq. ("Sherman Aff't"), which collects the record materials relied upon herein.

3. As set forth below, and in the accompanying Memorandum in Sup-port of this Motion, Section 52 of the New York Civil Rights Law ("Section 52") bars the audio-visual recording and televising of any and all trial court proceedings in this State. The per se ban on recording and televising of trial court proceedings set forth in Section 52 cannot overcome the presumptive state and federal constitutional rights of Court TV to televise, and of the public to observe on television, trial court proceedings. Nor is there any basis to overcome those constitutional rights to televise the trial in this action. Accord-ingly, Court TV respectfully requests that, as a matter of the state and federal constitutions, Court TV be permitted to televise this trial. Court TV

4. Court TV is a 24-hour-a-day, 7-day-a-week, cable legal news television network, founded in 1991, dedicated to reporting on the legal and judicial systems of the United States, the fifty states and the District of Columbia. Court TV has televised pro-ceedings from courts of thirty-seven states (including New York), the federal system and countries around the world.

5. Since its creation, Court TV's cornerstone has been the televising of extended, gavel-to-gavel coverage of civil and criminal trial court proceedings. Court TV has televised all or portions of more than 700 trials and numerous other proceedings, in-cluding parole hearings, death penalty hearings, and proceedings in municipal and night courts around the United States, as well as international proceedings from the former So-viet Union, El Salvador, the former Republic of Yugoslavia and the International Court of Justice at The Hague.

6. By stationing a single, silent unobtrusive camera inside a courtroom, Court TV seeks to enable viewers to observe the proceedings as though they themselves were in the courtroom. Court TV does this to inform and educate the public in the most accurate fashion possible, differentiating its coverage from the soundbites and "spin" fre-quently attending out-of-court news coverage of judicial proceedings - the attorney and party press conferences and out-of-court interviews, the second-hand summaries that not only (of necessity) pick and choose the information "worthy" of being reported, but whose authors attribute motives and meaning to the actions and statements of participants, report-ing their conclusions to the public for it simply to accept. Court TV cuts through all of that, and does so simply and elegantly: by permitting citizens to watch for themselves the moment-to-moment work of the judicial process in action.

7. Court TV has covered a wide variety of criminal trials, "high profile" and otherwise. Many have raised important social, economic, political and cultural ques-tions. Most that have been reported on by Court TV have been covered far less elsewhere. The underlying thought in all cases is the same, to capture the public workings of the jus-tice system as accurately as possible, thereby seeking to vindicate the Supreme Court's teaching (expressed before the enactment of Section 52) that "[a] trial is a public event. What happens in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 (1947).

8. Court TV's presence in the courtroom is non-disruptive. As a matter of policy and practice, prior to and during every proceeding it covers, Court TV makes every effort, working with the presiding judge and court personnel, to ensure a dignified, non-disruptive presence, and that all requirements concerning equipment placement and camera coverage are satisfied. Court TV employs a single, stationary camera, which pro-duces no noise and requires no lighting other than existing courtroom lighting. The cam-era is placed far away from the proceedings and, if necessary, it can be operated by remote control by a Court TV technician. Wiring is unobtrusive. Microphones are small and are never operated in such a way to record conversations between attorneys and clients; they are turned off during all parts of proceedings that are not part of the public record.

9. As a matter of policy, Court TV does not photograph jurors in any jurisdiction where it is not permitted to do so, and then, only with the permission of the presiding judge. Although not required to do so by any jurisdiction, as a matter of policy Court TV edits out the names of jurors and the addresses of witnesses.

10. In trials of particular interest to the public, Court TV's camera fre-quently serves as a pool camera for the broadcast media at large and as a surrogate presence for members of the print media when space constraints require that they be physically ex-cluded from the courtroom.

11. Court TV seeks to televise the entirety of the trial in this case, from opening statements through verdict. In so doing, it will be bound not only by its own in-ternal Coverage Guidelines (Sherman Aff't, Ex. A) but also by the law and related rules governing coverage in force during the period in which Section 218 governed. See Jud. L. § 218; the Rules of the Chief Administrator ("CA Rules"), Part 131. Thus, for example, we will visually obscure the image of any non-party witness during his or her testimony upon request by such person, § 218(5)(c), restrict coverage of family members of victims or par-ties, § 218(7)(l), refrain from covering any aspect of jury selection, CA Rules § 131.8(c), and observe all technical and equipment criteria concerning camera placement and the like. See generally CA Rules § 131.7.

12. No verdict rendered in any case covered by Court TV has ever been overturned, nor charges against a defendant dropped, because of the presence of Court TV's in-court cameras or Court TV's coverage.

13. The judicial proceedings Court TV has covered have raised serious social, political, cultural and economic questions. Some of the trials have been widely cov-ered in the press; others reported on Court TV have been far less covered elsewhere. That coverage has included the following:
(a) Libya v. Great Britain and United States (The International Court of Justice, the Hague, 1992). Court TV aired live coverage of a hearing in a case brought by Libya against Britain and the US related to the 1988 bombing of Pan Am Flight 103 which killed 270 over Lockerbie, Scotland.
(b) Michigan v. Kevorkian (Michigan State Court). Court TV aired coverage of the criminal trials of Dr. Jack Kevorkian, who was accused of violating state laws criminalizing assisted suicide and euthanasia. The defendant was acquitted on several occasions, and convicted on one. Subsequently, Court TV aired live coverage of the oral arguments before the Michigan appellate courts on the question of the constitutional right to commit suicide.
(c) Massachusetts v. LeFave (Massachusetts State Court 1998). Coverage of evidentiary hearing at which defendant, convicted of child abuse in 1987 on testimony of minor, successfully set aside con-viction based upon body of scientific evidence demonstrating that children's memories more susceptible to suggestion than previously believed.
(d) Paramount Communications, Inc., Viacom, Inc., et al. v. QVC Network, Inc. (Delaware Supreme Court, 1993). Court TV aired live coverage of oral arguments in an appeal from a lower court ruling that had invalidated parts of a merger agreement between Paramount Communications and Viacom, Inc. The Delaware Su-preme Court affirmed.
(e) Gregory K v. Ralph K, et al. (Florida State Court 1992). Court TV aired live coverage of a suit brought by an 11-year old who sought to "divorce" his parents so he could be adopted by his foster parents.
(f) Michigan v. Abraham (Michigan State Court 1999). Live coverage of murder trial of 13-year old, the youngest person in American history tried as an adult for murder. Defendant was con-victed of lesser charge.
(g) Moseley v. General Motors (Georgia State Court, 1992) Court TV aired live coverage of the trial in a suit initiated by the family of a 17-year old who was burned to death when his truck, manufactured by the defendant, was broadsided in a collision. Plain-tiffs claimed that the truck had been improperly designed, and suc-cessfully introduced evidence referring to over 100 other related law-suits. A verdict for plaintiffs, awarding over $100 million, was subse-quently vacated by a state appellate court because the evidence of re-lated suits was deemed to have been inadmissible.
(h) New Jersey v. Landano (New Jersey State Court 1998). Live coverage of re-trial of defendant who had served twelve years in prison for the murder of a police officer. Based upon previously withheld evidence, defendant was acquitted.
(i) Carter v. Brown & Williamson (Florida State Court 1996). Coverage of civil suit brought by ex-smoker seeking damages for product liability against tobacco company. Jury found for plaintiff. (j) Florida v. Smith (Florida State Court, 1991). Court TV aired live coverage of the trial of William Kennedy Smith, accused of rap-ing a woman at the Kennedy family compound. The defendant was acquitted.
(k) Jeffries v. Harrelston et al. (Federal District Court, N.Y., 1993). Court TV aired live coverage of the trial of Leonard Jeffries, a professor dismissed from an administrative post by the City Univer-sity of New York for having given a speech in which he made racist and anti-Semitic remarks. The Plaintiff recovered damages and rein-statement. A federal appeals court decision affirming in part and re-versing in part was subsequently vacated by the Supreme Court.

14. Court TV has televised all or portions of 73 trials in the courts of this State. Some of those trials have received live coverage; others have been taped for rebroad-cast. A list of these trials and all trial court proceedings covered in this State by Court TV follows:
(a) Bracco v. Owens Corning Fiberglass (1997). Taped cover-age of civil suit alleging failure to warn of asbestos-related health risks. The parties settled.
(b) Cabey v. Goetz (1996). Live coverage of trial of Bernhard Goetz, sued for civil rights violations for allegedly shooting plaintiff. The jury found for plaintiff.
(c) Cherry v. Coudert Brothers (1996). Taped coverage of civil rights suit brought by former attorney of international law firm. The parties settled.
(d) Concepcion v. New York City Health & Hospitals Corpo-ration (1995). Live coverage of civil suit alleging wrongful birth. The parties settled.
(e) Corkery v. Cosby (1994). Coverage of a suit brought by a photojournalist against the actor-comedian Bill Cosby. The jury found for plaintiff.
(f) Dipaolo v. New York Blood Center (1995). Live coverage of civil trial in which plaintiffs sued blood center for allegedly providing HIV-infected blood transfusions; defendant asserted that standard test to determine infection had not been developed until after plaintiff's transfusions. The jury found for plaintiff against the blood center, but determined attending physician (also a defendant) not to be liable.
(g) Doe v. McAlary (1996). Taped coverage of civil suit brought against Daily News columnist, and the newspaper, for libel.
(h) East Coast Novelty v. NYPD (1994). Coverage of a suit brought by an allegedly mob-run business against the New York City Police Department, asserting that defendant had illegally shut down the business. The jury found for defendant.
(i) Goetz v. William Kunstler and Carol Communications (1995). Taped coverage of libel action brought by Bernhard Goetz against William Kunstler and the publisher of Kunstler's 1994 auto-biography. Action was dismissed by the Court.
(j) In Re Custody of Hennessy Children (1995). Taped cover-age of custody dispute. The parties settled.
(k) Johnson v. New York City Health & Hospitals Corpora-tion, et al. (1996). Live coverage of civil suit brought by estate claim-ing wrongful death against Bellevue Hospital.
(l) Kane v. St. Luke's Hospital (1994). Coverage of pre-trial proceedings in a suit brought by the parents of a woman who was sexually assaulted in her hospital room while recovering from giving birth. Prior to trial, the Court found for plaintiffs.
(m) Kaplan v. Chamberlain (1993). Coverage of a dispute arising out of a surrogate motherhood contract.
(n) Lajoie v. Coleco (1991). Coverage of a suit alleging that de-fendants had negligently manufactured a swimming pool, causing a permanent spinal injury. The jury found defendants 10% at fault and awarded plaintiff damages accordingly.
(o) Morton v. Ruddock (1994). Coverage of a suit brought by a former trainer against defendant, a professional boxer. The parties settled prior to completion of the proceedings.
(p) New York v. Burrough (1993). Coverage of the criminal trial of three gang members accused of murdering a Brooklyn school principal. The defendants were convicted.
(q) New York v. Childs (1994). Coverage of the trial of a defen-dant accused of robbing and murdering a partner in a New York City law firm. The defendant was convicted on both counts.
(r) New York v. Cohen (1991). Coverage of a defendant accused of persuading a third person to commit murder. The defendant was acquitted.
(s) New York v. Cotton (1996). Taped coverage of criminal trial in which economics teacher was accused of demanding payments from students in exchange for higher grades. Defendant was con-victed.
(t) New York v. Cox (1994). Coverage of the trial of a defen-dant accused of murder, who claimed temporary incapacity due to his alcoholism. The judge declared a mistrial after one juror refused to convict.
(u) New York v. Del-Debbio (1996). Live and taped coverage of criminal trial of police officer accused of shooting an undercover transit officer on a subway. Defendant was convicted of a lesser charge of second-degree assault.
(v) New York v. Dugan (1992). Coverage of the trial of a New York University student, accused of attempted murder and assault of her employer. The defendant was acquitted on both counts.
(w) New York v. Ferguson (1995). Live coverage of the criminal trial of Colin Ferguson. Defendant was convicted.
(x) New York v. Garlin (1995). Taped coverage of trial concern-ing alleged sale of controlled substances. Defendant was convicted.
(y) New York v. Gheida (1996). Coverage of manslaughter trial of nightclub bouncer. Defendant was acquitted.
(z) New York v. Hampton (1992). Coverage of the trial of a de-fendant accused of harassing the playwright John Guare. The defen-dant claimed that Guare had stolen his life story for Guare's award-winning play "Six Degrees of Separation." Defendant was acquitted of one charge and there was a hung jury on the other.
(aa) New York v. Henriquez (1992). Coverage of the trial of a cab driver accused of the murder of one woman and two girls. The defendant was convicted of second-degree murder.
(bb) New York v. King (1991). Coverage of criminal proceedings brought against several defendants, who had conducted an AIDS pro-test in front of St. Patrick's Cathedral. The defendants were con-victed.
(cc) New York v. Lent (1997). Taped coverage of trial of defen-dant accused of abducting and murdering minor.
(dd) New York v. Mckiever (1995). Taped coverage of trial of Caucasian accused of murdering dancer; defendant claimed incompe-tence and asserted that murder had been committed by African-American. Defendant was convicted.
(ee) New York v. Mercer (1994). Coverage of the trial of a championship boxer who was accused of attempting to bribe an op-ponent into losing a fight between the two. The defendant was ac-quitted.
(ff) New York v. Miller, Rucco, Lewis (1996). Taped coverage of trial of three nuns accused of trespass as they protested practice of electronic fingerprinting of welfare recipients. The defendants were acquitted.
(gg) New York v. Nelson (1992). Coverage of the trial of a 16-year old accused of murdering an Hassidic Jew from Australia during the Crown Heights riots. The defendant was acquitted.
(hh) New York v. Nisbett (1994). Coverage of a defendant ac-cused of murdering a drama teacher as the victim was riding on his bicycle in Prospect Park. The defendant was convicted.
(ii) New York v. Ortiz (1996). Live and taped coverage of man-slaughter trial. Defendant was convicted.
(jj) New York v. Petrik (1993). Coverage of the trial of a profes-sor of criminal justice accused of assisting two inmates to escape from prison. The defendant was convicted.
(kk) New York v. Pierre (1992). Coverage of the trial of a defen-dant accused of robbery and assault of passengers on a subway line. Because of the death of a juror's relative, a mistrial was declared.
(ll) New York v. Pulinario (1997). Live and taped coverage of murder trial of rape victim, who asserted, for the first time in New York, "rape trauma syndrome" defense. Defendant was convicted.
(mm) New York v. Reza (1992). Coverage of the trial of a promi-nent physician, who was accused of murdering his wife. The defen-dant invoked a "psychiatric defense," claiming that professional and community responsibilities had led him to commit the crime as a way of punishing himself. He was found guilty of second-degree murder.
(nn) New York v. Ripic (1993). Coverage of the trial of a deaf woman accused of aiding and abetting the murder of her second hus-band, who had allegedly abused her physically for years. The defen-dant was found convicted of second degree murder.
(oo) New York v. Senko (1996). Taped coverage of trial of correc-tions officer charged with grand larceny for unlawfully overusing sick leave. Defendant was convicted.
(pp) New York v. Shenouda (1993). Coverage of the trial of a doctor accused of injecting his wife with insulin. Although the vic-tim recovered, and defended her husband, the defendant was con-victed of attempted murder.
(qq) New York v. Wesley (1993). Coverage of a defendant ac-cused of inciting the Crown Heights riot that led to the death of an Australian Hassidic Jew. The defendant was acquitted.
(rr) Pacheco v. City of New York (1992). Coverage of a suit brought by parents of a student shot by a classmate. Plaintiffs alleged that the Board of Education had negligently allowed students to carry handguns in public schools. The jury found for the plaintiff.
(ss) Random House v. Gemini Star Productions (1996). Live coverage of suit brought by publishing company against actress Joan Collins, alleging breach of contract. The jury returned a partial ver-dict for plaintiff and ordered certain payment to defendant.
(tt) St. Agathe v. City of New York (1995). Coverage of a suit stemming from the drowning of two youths on a Far Rockaway beach. Plaintiffs claimed that defendants had negligently hired an improperly trained and supervised a lifeguard. The jury returned a verdict for the plaintiffs.
(uu) Stone v. Toth (1995). Live coverage of malpractice trial. The parties settled.
(vv) Tejo v. Bloshinky (1992). Coverage of a suit brought by a plaintiff against her doctor and a hospital for negligence in connec-tion with a radical mastectomy she had undergone. The jury found for the defendant.
(ww) Zichemrman v. Korean Airlines (1992 [federal?]). Coverage of a suit brought by relatives and the estate of a victim killed when the Soviet Union shot down one of the defendant's airplanes. The plaintiffs prevailed.
(xx) Zion v. New York Hospital (1994). Live coverage of trial in civil suit brought by writer Sidney Zion against New York Hospital alleging wrongful death of his 18-year-old daughter. The jury found decedent to be 50% responsible for her own death; the hospital was found to be negligent with respect to the workload assigned to one of its physicians but that the negligence was not a proximate cause of decedent's death. The court subsequently set aside a portion of ver-dict.

The Former Rejection of
In-Court Camera Coverage
15. Until 1935, cameras and newsreel photographic equipment were widely permitted in trial court proceedings. For example, cameras and newsreel photogra-phy and radio microphones were permitted at the historic 1924 trial of Leopold and Loeb, argued by the now legendary Clarence Darrow, and the 1925 trial of John T. Scopes in which Darrow and William Jennings Bryan served as opposing counsel. (Sherman Aff't, Exs. D at 17)

16. In or about 1935, attitudes toward in-court coverage of judicial pro-ceedings changed dramatically, when Bruno Richard Hauptmann was accused, convicted and subsequently executed for the kidnapping and slaying of the 18-month-old son of Charles Lindbergh (the "Hauptmann trial"). The Hauptmann trial generated immense public interest, and immense photographic and radio coverage, both in-court and out-of-court. (Sherman Aff't, Ex. D at 17-21)

17. In response to what one observer called the "Roman Holiday" sur-rounding both the in-court and out-of-court media coverage of the Hauptmann trial, a na-tional backlash emerged against the use of photographic equipment in, and the radio broad-casting and photographic publishing of, court proceedings. (Sherman Aff't, Exs. D at 17-21) As part of that backlash, in 1937, the House of Delegates of the American Bar Associa-tion adopted Canon 35, which admonished judges to prohibit the taking of photographs in courtrooms and the broadcasting of court proceedings. (Sherman Aff't, Exs. B at 1-2, E at 798) According to Canon 35, such activities "degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted." (quoted in Sherman Aff't, Ex. E at 798)

18. In 1952, the House of Delegates of the American Bar Association amended Canon 35 to proscribe televised court proceedings. (Sherman Aff't, Ex. F at 770)

19. That same year, 1952, the New York Legislature enacted Section 52 of the Civil Rights Law. In approving Section 52, the Governor of this State commented that "[b]atteries of cameras, microphones and glaring lights carry with them attendant ex-citement, distractions and the potential for improper exploitation and intolerable subver-sion of the rights of the witness. Official proceedings must not be converted into indeco-rous spectacles." Message of the Governor, 1952 N.Y. Laws, at 366.

20. In or about 1965, 49 states barred television trial coverage by statute, court rule and/or adoption, in sum and substance, of Canon 35. (Sherman Aff't, Ex. B at 2)

21. In 1965, when first confronted with the question of whether audio-visual coverage of trial court proceedings had prejudiced a criminal defendant, the United States Supreme Court reacted with concerns similar to those articulated by the states and the American Bar Association in response to the Hauptmann trial. See Estes v. Texas, 381 U.S. 532 (1965). In Estes, the Supreme Court, by a four-member plurality opin-ion written by Justice Clark and a concurring opinion of Justice Harlan reversed the con-viction of the defendant because, on the facts of the case, the televising of the pre-trial hear-ing and parts of the trial had contributed to depriving the defendant of a fair trial. Four members of the Court joined a dissenting opinion of Justice Stewart.

22. In his plurality opinion in Estes, Justice Clark observed that "[w]hen the advances in [television] arts permit reporting by . . . television without [its] present haz-ards we will have another case." 381 U.S. at 540. Justice Clark further stated that "[i]t is said that the ever-advancing techniques of public com-munication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials. But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested upon the hypothesis of tomorrow but must take the facts as they are presented today."
381 U.S. at 551-52.

23. In his decisive concurring opinion in Estes, Justice Harlan observed that "the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in court-rooms may disparage the judicial process. If and when that day arrives," Justice Harlan concluded, "the constitutional judgment called for now could, of course, be subject to re-examination." 381 U.S. at 595 (Harlan, J., concurring).

24. In 1981, the Supreme Court affirmed the conviction of two individu-als whose trial had been televised in Florida over their objection. Holding that Estes had not announced a per se ban on the televising of criminal trials, the Court unanimously con-fined Estes to the facts of that case. Chandler v. Florida, 449 U.S. 560, 573 (1981). The Court went on to note the "change in television technology since 1962 when Estes was tried," id. at 576; that procedural protections had been built into the Florida rule, as well as those of other states, id. at 576-77; and that "no one has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an ad-verse effect on the [judicial] process," id. at 578-79. The Court also noted that "the data thus far assembled are cause for some optimism about the ability of states to minimize the problems that potentially inhere in electronic coverage of trials." Id. at 576.

Experiments and Studies Conducted
in Other Jurisdictions Concerning
the Audio-Visual Recording and
Televising of In-Court Proceedings
25. In or about 1974, states began to authorize, by statutes and/or rules, the audio-visual recording and televising of in-court proceedings, including trial court pro-ceedings. (Sherman Aff't, Ex. B at 2) The substance of the statutes and/or rules varied by state. Some authorized coverage on an experimental basis; others on a permanent basis. All included a variety of procedural protections for trial court participants, restrictions on the kind and scope of coverage, and restrictions on type of equipment to be used. (Id.) As of May 1, 1999, 48 states had adopted rules and/or statutes allowing cameras into court-rooms, 37 of them permitting the televising of criminal trials. (Sherman Aff't, Ex. A at 1)

26. As part of the movement during the past two decades to allow in-court coverage of trial court proceedings, 29 jurisdictions have formally studied and evalu-ated the effects of the televising of such proceedings, some jurisdictions having conducted more than one such evaluation. These studies have examined the impact of audio-visual coverage on the dignity of the proceedings, the administration of justice, and on the effect of in-court cameras upon trial participants, including witnesses, jurors, attorneys, judges and other interested parties. The evidence assembled by all of these studies demonstrates that television coverage does not disrupt trial court proceedings or impair the administra-tion of justice. Moreover, these studies demonstrate that televised coverage of trials pro-vides substantial benefits to the public.

27. For example, in 1977, the Florida Supreme Court initiated a pilot program allowing "the electronic media [to] televise and photograph" civil and criminal judicial proceedings in all courts of the State of Florida, subject to specific restrictions on types of equipment, light and noise levels, camera placement and audio pickup, and subject to the "reasonable orders and direction of the presiding trial judge in any such proceeding" (the "Florida Experiment"). In re Petition of Post-Newsweek Stations, 347 So. 2d 402, 403 (1977). (For the convenience of the Court, a copy of the Florida Supreme Court's instruc-tions regarding the Florida Experiment is annexed to the Sherman Aff't as Exhibit K.) In conjunction with the Florida Experiment, "all media participants in the program, all parties hereto, and all participating judges" were requested to furnish to the Florida Supreme Court a "report of their experience under the program." (Sherman Aff't, Ex. K at 404)

28. When the Florida Experiment ended on June 30, 1978, the Florida Supreme Court received and reviewed briefs, reports, letters, resolutions, comments and exhibits. The Court also conducted its own independent, separate surveys of witnesses, ju-rors, court personnel (excluding judges), and attorneys. Responses were sought from indi-viduals who had participated in or were associated with trials in which audio-visual cover-age had been permitted, and all responses were to remain anonymous. Prior to their distri-bution, the questionnaires were reviewed by the Supreme Court, the Judicial Planning Unit of the Office of the State Courts Administrator and interested academicians. Finally, the Florida Conference of Circuit Judges conducted a separate survey of trial court judges who had participated in televised proceedings. In re Petition of Post-Newsweek Stations, 370 So. 2d 764, 767-68 (1979). (For the convenience of the Court, a copy of the Florida Supreme Court's evaluation of the Florida Experiment is annexed to the Sherman Aff't as Exhibit F.)

29. After reviewing all of this material, the Florida Supreme Court con-cluded that the Florida Code of Judicial Conduct "should be amended to permit access to the courtrooms of this state by electronic media subject to standards adopted by this Court and subject also to the authority of the presiding judge at all times to control the conduct of the proceedings before him to ensure a fair trial to the litigants." (Sherman Aff't, Ex. F at 781) More specifically, the Court found the following:
(i) "It is essential that the populace have confidence in the [judi-cial] process, for public acceptance of judicial judgments is manifestly necessary to their observance." Id. at 780.
(ii) Because "newsworthy trials will continue to be covered by the electronic media from without the courtroom," "this type of sensational and uncomplimentary coverage will be displaced by the sort of orderly and dignified in-court cover-age demonstrated during the pilot program." Id. at 781.
(iii) "Technological advancements have so reduced size, noise, and light levels of the electronic equipment available that cameras can be employed in courtrooms unobtrusively." Id. at 775.
(iv) Electronic equipment presents "no . . . discernible effect" on "the decorum of the proceedings." Id.
(v) Assertions that "lawyers will 'grandstand' or 'play to the cameras' to advance their own self-interests" were "unsup-ported by any evidence." Id.
(vi) Assertions that "judges will engage in 'posturing' - particu-larly at election time" were "unsupported by any evidence." Id.
(vii) Assertions that "witnesses will either assume a stage presence and 'ham it up' or will be so intimidated as not to be able to present fairly their testimony" were "unsupported by any evidence." Id.
(viii) Assertions that "jurors will be either be distracted from con-centrating on the evidence and the issues to be decided by them or, because of their identification with the proceedings, they will fear for their personal safety, be subjected to influ-ence by members of the public, or attempt to conform their verdict to community opinion" were "unsupported by any empirical evidence." Id.
(ix) Assertions that "the presence of electronic media in the courtroom will make that case appear to the participants to be a cause celebre and, therefore, prevent an objective and dispassionate presentation and resolution of the issues" were "unsupported by any empirical evidence." Id.
(x) Despite the fact that before the pilot program "the over-whelming majority of trial court judges of this state [were] generally unsympathetic to the experiment," id. at 767, "it was the opinion of an overwhelming majority (90-95%) of re-spondents to the survey of the Florida Conference of Circuit Court Judges that jurors, witnesses, and lawyers were not af-fected in the performance of their sworn duty in the court-room." Id. at 777.
(xi) Witnesses and jurors were no more likely to be adversely in-fluenced by exposure to televised proceedings than by expo-sure to the print media. Id.
(xii) Retrials or separate, subsequent trials of co-defendants were no more likely to be adversely affected by "accurate, direct broadcast of the events occurring in the courtroom" than by print media coverage or out-of-court filming and broadcast of trial participants. Id.

30. A second example is California. On or about July 1, 1980, the Judi-cial Council of California authorized a one-year experiment permitting audio-visual cover-age in California trial and appellate courts (the "California Experiment"). The California Experiment was subsequently extended for an additional six months, to conclude on or about December 31, 1981. (Sherman Aff't Ex. B at A12-A13) As in other states, the rules of court governing the California Experiment included a variety of procedural protections for trial participants, restrictions on kind and scope of coverage and restrictions on type of equipment. (Id.)

31. As part of the California Experiment, a subcommittee of the Chief Justice's Special Committee on the Courts and the Media (the "Special Committee") en-gaged an independent consultant, Ernest H. Short and Associates, Inc., to evaluate the Cali-fornia Experiment. (Sherman Aff't, Ex. L at 5) The evaluation produced by the consultant (the "Short Report") employed three methods to evaluate the effects of audio-visual cover-age on court proceedings: 1) observation and comparison by researchers of proceedings in which electronic media were and were not present; 2) interviews with jurors and witnesses who had served in cases where cameras were present; and 3) a separate attitudinal survey sent to jurors who did and did not have experience with electronic media coverage. (Id. at 19 (for the convenience of the Court, excerpts of the Short Report are annexed to the Sherman Aff't as Exhibit L))

32. The Special Committee sought information on - and the Short Re-port exhaustively probed - the following "two major evaluation" questions: (1) "Will the presence and operation of broadcast recording, or photographic equipment in a courtroom be a significant distraction for trial participants, disrupt proceedings, or impair judicial dig-nity and decorum?" and (2) "Will trial participants or prospective trial participants, know-ing that their words or pictures will be or are being recorded, broadcast or taken for possi-ble use on television, radio or in newspapers or magazines, change their behavior in a way that interferes with the fair administration of justice?" (Sherman Aff't, Ex. L at 5-6)

33. The Short Report, submitted to the California Judicial Council in or about September 1981, answered both questions in the negative. (Sherman Aff't Ex. L at 228) In general the Report found that
"[o]ne of the most intriguing aspects to this evaluation has been the perspective gained from in-court observation. The evaluators were able to see for themselves if witnesses were nervous, if prosecutors 'played up to the camera', if jurors were distracted, and if judges were unable to keep order. In general none of these postulated distraction-decorum effects occurred. There seemed little reason, in event after event, to have many fears about the presence of EMC [extended media coverage] equipment and personnel inside the courtroom, un-der the controlled experimental conditions." (Id. at 243)

34. Based upon the results set forth in the Short Report, the Judicial Council of California extended the California Experiment for an additional year. Follow-ing two additional one-year extensions, California, in 1984, permanently enacted rules authorizing audio-visual coverage of court proceedings. (Sherman Aff't, Ex. B at A14)

35. Notwithstanding several years of success with in-court cameras in California, following perceived problems with the in-court televising of the widely publi-cized O.J. Simpson Criminal Trial, California in 1996 again evaluated the presence of cam-eras in the courtrooms. Despite intense efforts by opponents of cameras to greatly restrict televised coverage of California State proceedings, California affirmed the importance of camera coverage and open public trials.

36. Three weeks after the Simpson Criminal Trial ended in Los Angeles, the Chief Judge of the California Supreme Court appointed a special Task Force on Photo-graphing, Recording, and Broadcasting in the Courtroom (the "Task Force") to evaluate whether the California counterpart to Section 218 should be amended. (See Sherman Aff't, Ex. M at 5) As part of its charge, the Task Force considered the views of all interested par-ties, including judges, media representatives, victims' rights groups, public defenders, prose-cutors and other representatives of various segments of the bar. (Id. at 17) The Task Force also evaluated surveys and reports from other jurisdictions. It took into account the views of opponents of camera coverage (id. at 5-6), as well as proponents' views "that the Ameri-can judicial system was designed to be as open as possible" (id. at 9), and that "[p]rograms such as Court TV have provided access to judicial proceedings for millions of people who would otherwise have little opportunity to observe the courts in action." (Id.)

37. The Task Force further considered the concerns of some judges who - although they had no actual experience with cameras in their courtrooms - were disturbed by the spectacle of the Simpson Criminal Trial and urged that cameras be banned from their courtrooms. (Id. at 8) The Task Force considered these views in context: "Coming directly on the heels of the O.J. Simpson experience, it is not surprising that judges have more negative ideas about cameras in the courtroom than they did in the early 1980s." (Id.)

38. Yet the Task Force found that judges who had actually had experi-ence with cameras in their courts plainly favored continued camera coverage of California trials. Ninety-six percent of those judges reported that the presence of a video camera did not affect the outcome of a trial or hearing in any way. (Sherman Aff't, Ex. M at 7) In ad-dition, the overwhelming majority of them reported that the camera did not affect their ability to maintain courtroom order and control of proceedings (id.), and further reported "[n]o decrease in persons' willingness to serve as jurors as a result of video broadcast media in the courtroom." (Id.) Moreover, "there were not more attempts to offer unnecessary motions, evidence, or witnesses in cases" covered by the electronic media. (Id. at 8)

39. A typical submission to the Judicial Council is that of Judge James Ford of the Sacramento Superior Court. He concluded as follows: "First, it is the public's business which is transacted in our courts, paid for by the taxpayers. They have a right to see and hear what we do with their money. I have yet to hear an ar-gument which addresses this fundamental issue. Court busi-ness is not, and can never be, secret. In turn, its openness should not be circumscribed by the number of seats in the room when technology can remove that circumscription. "Second, my experience reveals no instance of what could be termed a prejudicial effect on a party. One is hard pressed to think of an argument in which one side could reasonably urge the position that television adversely affects a case. . . . "Finally, in many instances of television coverage of cases be-fore me, I can think of none in which it was disruptive or prejudicial to any side. More-over, only the judge can cause a proceeding to become 'indecorous.' If the judge fails to ade-quately insure appropriate conduct, then shame on the judge, not shame on the camera."
(Sherman Aff't, Ex. O)

40. In the end, the Task Force came out in favor of camera coverage and open public trials. It determined that
"balancing the competing policy interests compels a conclu-sion that a total ban on cameras in the courtroom would be inappropriate. The Task Force also believes that society's in-terest in an informed public, recognized in the planning and mission of the Judicial Council, is an important objective for the judiciary, which would be severely restricted by a total ban. Today's citizen relies too heavily on the electronic me-dia for information; yet actual physical attendance at court proceedings is too difficult for the courts to countenance a to-tal removal of the public's principal news source."
(Sherman Aff't, Ex. M at 10)

41. The Task Force further made clear that its recommended new rule "does not seek to make any determination as to what is or is not 'newsworthy' or to make critical comment about the manner in which court proceedings are presented or the edi-torial policy of any media entity. Those are matters over which the courts do not and should not have control." (Sherman Aff't, Ex. N at 17)

42. In early 1996, the Judicial Council voted to adopt almost all the Task Force's recommendations. (The central exception, however, was the decision by the Judi-cial Council not to adopt the Task Force's recommendations to prohibit absolutely tele-vised coverage of certain pretrial criminal proceedings.) Effective January 1, 1997, new Rule 980 went into effect, leaving the determination of whether electronic coverage should be permitted to the sole discretion of the presiding judge, and setting forth a variety of fac-tors sufficiently inclusive to provide additional guidance to trial courts considering future coverage requests.

43. As set forth in the subparagraphs below, among the similar findings of many studies conducted in other jurisdictions are the following:
(a) Alaska: After a three-year experimental program evaluating the effects of in-court camera coverage, the Alaska Judicial Council reported in 1988 that "[t]elevision cameras in the courtroom have had virtually no effect on courtroom behavior of participants. Judges have noted that there is no grandstanding by attorneys, and, if any-thing, the realization that they may appear on the evening news has improved attorneys' behavior. Most often participants forget that the cameras are there after the first few moments and instead concentrate on the reason they are all in the courtroom." (Sherman Aff't, Ex. P at 42) Moreover, the study observed that "[m]any of the judges inter-viewed in the course of this study originally had grave reservations about the presence of cameras in their courts. Paradoxically, these were the same judges who were placed in situations where they had to face cameras in their courts on a daily basis and the result was most surprising to them. . . . Perhaps the surest sign of the success of the Media Plan is the ease with which judges, attorneys, court per-sonnel and the public have accepted the changes. News cameras have become a daily presence in the court buildings and the courtrooms. Trial proceedings frequently appear on the television news and simi-lar photos are in the daily newspapers. Far from creating a court-room spectacle, cameras in the courtrooms have become accepted tools for bringing elements of our justice system into the everyday lives of the public." (Id. at 69)
(b) Arizona: In 1983, Arizona, following a one-year experiment, reported that over 90% of judges interviewed stated that the presence or amount of media equipment did not affect the dignity or conduct of the proceedings. (Sherman Aff't, Ex. Q at 21) Moreover, 93% of jurors surveyed stated in response to questionnaires that the presence of media equipment did not distract them. (Id. at 20) Ninety-two percent of witnesses reported that once they learned that television coverage was taking place, it did not change their attitude about the proceedings (id. at 26), and 92 percent stated that the presence of cameras would not affect their willingness to testify again. (Id. at 27)
(c) Connecticut: Following a one-year experiment, the Chief Court Administrator of the State of Connecticut reported in 1983 that the experiment "has been a success. We believe that the intro-duction of electronic coverage by the media into Superior Court pro-ceedings has been accomplished without threatening the rights of par-ties or without interfering with the orderly disposition of cases." Moreover, the Administrator determined that cameras in the court-room "afford the people of Connecticut with an excellent opportu-nity to learn more about the operations of their judicial branch of state government. For many of them, this has been their first glimpse of the court system. Providing this opportunity is consistent with the objective of the Judicial Department to increase the public's awareness and understanding of their courts."
(d) Iowa: Following a two-year study by an advisory committee of the Iowa Supreme Court, Iowa began its experiment with camera coverage of trial proceedings in January 1980. Four years and 190 trials later, surveys of jurors found that an overwhelming number of them viewed camera coverage as having little effect on trial partici-pants, and no effect on the performance of judges or witnesses.
(e) The Federal Courts: After a two-year pilot program in six federal district courts evaluating the effect of cameras in civil proceed-ings, the Federal Judicial Center reported in November 1993 that "[o]verall, attitudes of judges toward coverage . . . were initially neu-tral and became more favorable after experience with electronic me-dia coverage under the pilot program." (Sherman Aff't, Ex. J at 2) Moreover, "[j]udges and attorneys who had experience with elec-tronic media coverage under the program generally reported observ-ing little or no effect of camera presence on participants in the pro-ceedings, courtroom decorum, or the administration of justice." (Id.) In 1994, based on all the data gathered during the two-year pilot pro-gram, the research staff that had gathered and analyzed the data rec-ommended that the Judicial Conference "authorize federal courts of appeals and district courts nationwide to provide camera access to civil proceedings in their courtrooms, subject to Conference guide-lines." (Sherman Aff't, Ex. K at 43) The recommendation was based on the determination that the in-court presence of the electronic me-dia "did not disrupt court proceedings, affect participants in the pro-ceedings, or interfere with the administration of justice." (Id.)
(f) Other jurisdictions that have studied the effects of in-court camera coverage (or in which such studies were conducted) and have reported favorably on such coverage are the following: Arkansas (1982); Delaware (1981); Hawaii (1982, in or about 1985); Illinois (1988); Kansas (1984, 1985); Louisiana (1979); Maine (1993); Mary-land (1980); Massachusetts (1982); Michigan (1977, 1989); Minne-sota (1982); Montana (1977); Nevada (1981); New Jersey (1985, 1991); North Carolina (1985); Ohio (1978, 1980, 1990); Oklahoma (1978); Rhode Island (1981, 1983); Vermont (1984); Washington (1975, 1978); Wisconsin (1979). (See Sherman Aff't, Ex. B at A10-87)

New York's Experience With the Recording
and Televising of Trial Court Proceedings
44. In 1982, the Chief Judge of New York State, with the approval of the Associate Judges of New York Court of Appeals, promulgated a set of rules authorizing an experimental program for audio-visual coverage of civil trials, to become effective if the Legislature removed the bar contained in Section 52 of the Civil Rights Law. (Sherman Aff't, Ex. G at 3-4) However, despite the broad movement in many states to allow cameras in courts, the Legislature did not act until five years later.

Section 218 - The First,
Second and Third Experiments
45. In 1987, the Legislature suspended the enforcement of Section 52 of the Civil Rights Law by authorizing an 18-month experiment of audio-visual coverage of criminal and civil trial court proceedings pursuant to Section 218 of the Judiciary Law (the "First Experiment"). The First Experiment began on December 1, 1987 and was to expire on May 31, 1989. (Sherman Aff't, Ex. G at 4)

46. In enacting the First Experiment, the Legislature noted that "it was the experience of an earlier generation that bright lights, large cameras and other noisy equipment intruded upon the dignity and decorum of the courtroom and tended to create an atmosphere unsuited to calm deliberation and im-partial decision-making." (Sherman Aff't, Ex. H at 1)

47. In enacting the First Experiment, the Legislature found that "various improvements in the technology of photography and of the audio and video broadcast media, in addition to the de-velopment of procedural safeguards as provided for in various state programs, make it feasible to permit in this state, on an experimental basis, audio-visual coverage of court proceedings without disruptive effect." (Sherman Aff't, Ex. H at 1)

48. The First Experiment authorized, and the rules promulgated there-under provided implementing procedures for, cameras in trial court proceedings, subject to several procedural protections for the parties and other participants, regulations limiting the kind and scope of coverage, and regulations regarding the placement and nature of equipment. (Sherman Aff't, Ex. G at 5-10)

49. Under the First Experiment, the presiding trial judge, in deciding whether to permit audio-visual access, was obligated to consider the type of case involved, any harm to participants, the effect on the fair administration of justice or on the rights of the parties, the effect on any law enforcement activity, and whether the proceeding in-volved lewd or scandalous matters, although consent of the participants was not required. (Sherman Aff't, Ex. G at 5)

50. The First Experiment required the Chief Administrative Judge to evaluate the First Experiment and submit a report to the Legislature. (Sherman Aff't, Ex. G at 10) In or about March 1988, Chief Administrative Judge Albert M. Rosenblatt sub-mitted the required report (the "Rosenblatt Report"). (See Sherman Aff't, Ex. G.) The Ro-senblatt Report was based upon over 1,000 written evaluations submitted by judges, law-yers, witnesses and news media representatives who had participated in court proceedings in which audio-visual coverage was permitted. (Id. at 24)

51. The Rosenblatt Report concluded, inter alia, that 84% of New York judges were favorable to televised coverage (Sherman Aff't, Ex. G at 30); that no judge be-lieved such coverage made it difficult for jurors to ascertain the truthfulness of testimony (id. at 33); and that no one (whether favorably or unfavorably inclined with regard to tele-vising court proceedings) had commented that the presence of cameras influenced the ulti-mate outcome of any trial. (Id. at 47) The Rosenblatt Report recommended that the First Experiment be made permanent. (Id. at 112)

52. Following the submission of the Rosenblatt Report, the Legislature amended Section 218 of the Judiciary Law, continuing the experiment of permitting audio-visual coverage of civil and criminal proceedings in trial courts (the "Second Experi-ment"). (Sherman Aff't, Ex. H at 11) The Second Experiment was to continue for two ad-ditional years beyond the expiration date of the First Experiment, until May 31, 1991. (Id.)

53. The Second Experiment, as had the First Experiment, required the submission of a report to the Legislature by the Chief Administrator on the effect of the experiment. As part of this study, a temporary advisory committee was created, consisting of two social scientists with extensive experience in research methodology, two communi-cations experts, and one legal expert.

54. In or about March of 1991, Chief Administrative Judge Matthew T. Crosson submitted a report to the Legislature evaluating the Second Experiment (the "Crosson Report"). (Sherman Aff't, Ex. H at 13-14) Like the Rosenblatt Report, the Cros-son Report concluded that the experiment had been successful and recommended that the Second Experiment be made permanent, with certain minor changes added to the new statutory language. (Id.)

55. Despite the recommendations set forth in both the Rosenblatt Report and the Crosson Report, and despite the participant evaluations upon which those reports were based, the Legislature failed during the 1992 legislative session to either make Sec-tion 218 permanent, to continue the experiment or otherwise to facilitate the continuation of televised trial court proceedings. On June 1, 1991, audio-visual coverage of trial court proceedings in this State ceased. (Sherman Aff't, Ex. H at 15)

56. In or about June 1992, the Legislature re-enacted Section 218, and re-instated the experiment for two-and-a-half more years until January 31, 1995 (the "Third Experiment"). As part of the Third Experiment, Section 218 removed the bar of Section 52 of the Civil Rights Law up to and including January 31, 1995. (Sherman Aff't, Ex. H at 15)

57. As part of the Third Experiment, Section 218 adopted most of the procedural protections, restrictions on kind and scope of coverage, restrictions on types of equipment and the manner in which that equipment is deployed during trial court proceed-ings, as were previously provided by former Section 218 and the rules promulgated there-under. (Sherman Aff't, Ex. H at 15)

58. As part of the Third Experiment, however, Section 218 amended its predecessor in several respects to provide additional procedural protections for witnesses, defendants in criminal cases, family members of parties or victims, and to ensure the or-derly conduct of the proceedings. (Sherman Aff't, Ex. H at 16-17)

59. As part of the Third Experiment, Section 218 created a 12-member committee, chaired by then-Judge Burton Roberts (the "Roberts Committee"), to review audio-visual coverage of court proceedings. The Committee consisted of three members appointed by the Governor, three (including the Chair of the Committee) appointed by the Chief Administrator of the Courts, three appointed by the majority leader of the Senate, two appointed by the Speaker of the Assembly, one appointed by the minority leader of the Senate, and one appointed by the minority leader of the Assembly. (Sherman Aff't, Ex. H at 18-19)

60. Section 218 accorded the Roberts Committee with "the power, duty and responsibility to evaluate, analyze, and monitor" the Third Experiment. (Sherman Af-f't, Ex. H at 18) The Office of Court Administration and all participants in proceedings in which audio-visual coverage was to be permitted, including judges, attorneys and jurors, were required to cooperate with and assist the Roberts Committee in evaluating the impact of audio-visual coverage of court proceedings. The Roberts Committee was empowered to request assistance from bar associations. Finally, the Committee was required to recom-mend to the Legislature, the Governor and the Chief Judge "as to the efficacy" of the Third Experiment, and "whether it should be continued." (Id.)

61. In carrying out its mandate, the Roberts Committee adopted the fol-lowing methods: It solicited and compiled comments and observations of trial judges throughout the State who presided over proceedings in which audio-visual coverage was permitted during the Third Experiment. It solicited complaints, statutory violations and other concerns relating to audio-visual coverage of court proceedings from members of the Criminal Justice Section of the New York State Bar Association and from the New York State District Attorneys Association. It collected, compiled data from and analyzed all ap-plications for audio-visual coverage made during the Third Experiment. It reviewed and analyzed prior studies and surveys relating to audio-visual coverage of court proceedings, including the Rosenblatt and Crosson Reports, as well as studies conducted in other juris-dictions. It reviewed and analyzed information regarding audio-visual coverage statutes and rules from other jurisdictions. It conducted two public hearings, at which 46 witnesses tes-tified, and it reviewed written submissions prepared by other organizations and individuals who did not testify before the Committee. It met as a group on several occasions to discuss and debate the issues relating to audio-visual coverage of court proceedings. (Sherman Af-f't, Ex. H at 20-21)

62. In or about May 1994, the Roberts Committee submitted a 106-page report to the Legislature, the Governor and the Chief Judge (the "Roberts Report"). (Sherman Aff't, Ex. H) The Roberts Report, by a 12-1 vote, concluded that the benefits of the Third Experiment had been "substantial" (id. at vi) and that the First, Second and Third Experiments had been a "success." (Id. at vii) The Roberts Committee recommended that Section 218 be permanently enacted. (Id.)

63. In determining that Section 218 should be permanently enacted, the Roberts Committee concluded that:
(i) "No criminal conviction in New York has ever been reversed or set aside on the ground that audio-visual coverage inter-fered with the defendant's right to a fair trial." (Sherman Af-f't, Ex. H at 99)
(ii) Because "relatively few people ever attend court proceed-ings," and because "vast numbers of citizens rely on televi-sion as their primary source of information about our society . . . , [t]elevision coverage of court proceedings, therefore, ex-poses greater numbers of citizens to our justice system." (Id. at 86)
(iii) Cameras in trial court proceedings enhance public education of the judicial and criminal processes by "engender[ing] a deeper understanding of legal principles and processes." (Id. at vi)
(iv) Cameras in trial court proceedings have led to "increased public respect for the justice system." (Id.)
(v) Cameras in trial court proceedings have helped "energize de-bate over" the "major substantive issues" (such as "domestic violence, date rape, freedom of speech") that cases frequently present "because citizens have examined the issues as they have arisen in the lives of real people whom they have seen and heard." (Id. at 87)
(vi) Cameras in trial court proceedings have enabled the public, to greater effect than previously possible, to monitor whether "justice is handed out fairly and impartially." (Id. at 90)
(vii) "[R]eporting on court proceedings, both by newspaper and broadcast reporters, frequently is more accurate and compre-hensive when cameras are present." (Id. at 91)
(viii) "Unlike the rudimentary technology of yesteryear, cameras now function in the courtroom without disruption or dis-traction. Improvements in technology have rendered cam-eras no more, and possibly less, conspicuous than the news-paper reporter with pencil and notebook and the courtroom artist with crayon and sketch pad." (Id. at vii)
(ix) There is "no concrete evidence" that cameras in trial court proceedings have inclined trial judges to act any more un-fairly or harshly toward criminal defendants than any such judge would act without cameras present. (Id. at 92) "[A] judge whose interest is not in seeing that justice is done but in pleasing the majority will be inclined to do so even if only the print media are covering the proceedings. Camera cover-age, in fact, could more effectively expose judges who dem-onstrate a pattern of lack of impartiality." (Id.)
(x) Cameras in trial court proceedings have not "affect[ed] ad-versely the performance of attorneys" in representing their clients. (Id. at 93)
(xi) Cameras in trial proceedings have had minimal, if any, im-pact on the "vast majority of witnesses who have testified with cameras present" (id.) and the Roberts Committee re-ported learning that "no prosecutor or defense attorney . . . has lost a witness because of camera coverage." (Id.)
(xii) "The suggestion that camera coverage adversely affects jurors is also erroneous." (Id. at 94) All juror surveys reveal that "camera coverage does not influence their role in the pro-ceedings." (Id.)
(xiii) "A review of applications for audio-visual coverage made dur-ing the [Third Experiment] reveals that it is simply not true that the media have sought to cover only 'sensational' pro-ceedings. (Id. at 89) More-over, audio-visual coverage of high-profile or "sensational" cases also serves to educate the public. "Coverage of those cases reveals the reality of the courtroom as distinctly as does the coverage of other cases." (Id.)
(xiv) Audio-visual coverage of trial court proceedings is a "superb educational tool for judges, attorneys and students, who can enhance their knowledge and courtroom skills by studying" the recordings of the proceedings. (Id. at 91)
(xv) The Roberts Committee, after inquiring of the New York State Bar Association, the New York State District Attorneys Association, witnesses at public hearings and judges who had presided over proceedings in which audio-visual coverage of proceedings occurred, found only two minor violations of Section 218 of the Judiciary Law during the Third Experi-ment, despite the hundreds of applications for audio-visual coverage made during that time. (Id. at 97-98) New York's Fourth Experiment and Its Reaffirmation of the Positive Effects of Cameras in Courtrooms: The Feerick Committee and Report

64. The Third Experiment had been scheduled to sunset on January 31, 1995 - in what turned out to be the middle of the O.J. Simpson criminal trial in Califor-nia. On February 1, 1995, the Legislature re-enacted Section 218, authorizing yet another experiment for two-and-a-half more years until June 30, 1997 (the "Fourth Experiment"). As part of the Fourth Experiment, Section 218 again removed the bar of Section 52 of the Civil Rights Law up to and including June 30, 1997. (Sherman Aff't, Ex. I at 6 & n.3)

65. As part of the Fourth Experiment, Section 218 adopted exactly the same procedural protections, restrictions on kind and scope of coverage, restrictions on types of equipment and the manner in which that equipment is deployed during trial court proceedings, as were previously provided by former Section 218 and the rules promulgated thereunder.

66. But, upon information and belief, given that some had concluded that cameras had caused the perceived problems at the Simpson trial, the Legislature provided for yet another committee to review audio-visual coverage of court proceedings. The Committee was chaired by Fordham Law School Dean John Feerick (the "Feerick Com-mittee"). (See Sherman Aff't, Ex. I at 6 n.4.)

67. As with the prior New York experiments, Section 218 accorded the Feerick Committee with "the power, duty and responsibility to evaluate, analyze, and monitor" the Fourth Experiment. See Former Jud. L. § 218(a)(9). The Office of Court Administration and all participants in proceedings in which audio-visual coverage was to be permitted, including judges, attorneys and jurors, were required to cooperate with and as-sist the Feerick Committee in evaluating the impact of audio-visual coverage of court pro-ceedings. The Feerick Committee was mandated to request assistance from bar associa-tions. Finally, the Committee was required to issue a report to the Legislature, the Gover-nor and the Chief Judge "evaluating the efficacy" of the Fourth Experiment and "whether any public benefits accrue from the [Fourth Experiment], any abuses that occurred during the [Fourth Experiment], and the extent to which and in what way the conduct of partici-pants in court proceedings changes when audio-visual coverage is present." (Sherman Aff't, Ex. I at 6)

68. In carrying out its mandate, the Feerick Committee adopted the fol-lowing methods: It designed and conducted a written survey of over 350 trial judges throughout the State to assess the experience of New York judges with cameras in the courtroom under the Fourth Experiment. It commissioned the Marist Institute for Public Opinion to survey public opinion in New York on the issue of cameras in the courtroom. It contacted 150 bar associations in New York requesting information about the experience of their members with respect to the Fourth Experiment. It heard testimony from over 50 witnesses at five public hearings, including judges, civil and criminal trial lawyers who had participated in televised trials, crime victim advocates, law enforcement officials, media scholars, jurors and representatives of the print and electronic media. It received numerous communications and letters from the public commenting on the issue of cameras in the courtroom. It collected data from the Office of Court Administration regarding applica-tions for audio-visual coverage made during the Fourth Experiment. It reviewed samples of televised courtroom footage. It contacted jury consultants to obtain information about their experience with the impact of cameras in the courtroom on jurors and other trial par-ticipants. It obtained and reviewed information on the experience of cameras in the court-rooms in 50 states and in the federal courts under the "cameras in the courtroom" pilot pro-ject. (Sherman Aff't, Ex. I at 8-10)

69. In or about April 1997, the Feerick Committee submitted its report to the Legislature, the Governor and the Chief Judge (the "Feerick Report"). (See Sherman Aff't, Ex. I.) Despite the backlash of the Simpson case, the Feerick Report reaffirmed tele-vised court proceedings. The Feerick Report concluded that "[a]lmost 10 years of experi-ence argue in favor of allowing cameras in the courts on a permanent basis." (Id. at 5) It recommended, "[i]n light of the long period of examination of this subject by prior com-mittees and this Committee, . . . that Section 218 of the Judiciary Law be amended to per-mit audio-visual coverage on a permanent basis, with all of the safeguards of the current legislation for defendants in criminal proceedings, parties in civil proceedings, witnesses, jurors, crime victims, children and others." (Id. at 1) It found that such an approach "re-spects the public value of openness, the public nature of a trial, and the constitutional prin-ciple of a fair trial." (Id. at 6) It further concluded that "[t]he many safeguards contained in the law and in the accompanying rules issued by the Chief Administrative Judge have worked well to provide judges with the necessary discretion to deal with possible abuses and to protect the legitimate concerns of parties, prospective witnesses jurors, crime victims and other participants in trial proceedings." (Id. at 1)

70. In determining that Section 218 should be permanently enacted, the Feerick Committee also concluded from its detailed and lengthy evaluation that:
(i) Research had not revealed any appellate decision "overturn-ing a judgment, verdict, or conviction based on the presence of cameras at trial." (Sherman Aff't, Ex. I at 68)
(ii) "Our review of the [Fourth] experiment, . . . did not find that the presence of cameras in New York interferes with the fair administration of justice." (Id. at 1)
(iii) "[O]ne of the greatest benefits derived from the presence of cameras in the courtroom is enhanced public scrutiny of the judicial system. The majority of judges who responded to the Committee's survey and a wide array of witnesses who testified at the Committee's hearings agreed that the presence of television cameras in the courtroom enhances public scru-tiny of judicial proceedings." (Id. at 2)
(iv) Television coverage of court proceedings "enables the public to learn more about the workings of the justice system, to see directly the conduct of particular cases, and to become more familiar with legal concepts and developments. The fact that many view television coverage as a form of entertainment does not deprive it of educational content, since education and entertainment are not mutually exclusive." (Id. at 66)
(v) "[T]elevision coverage has drawn the public's attention to major societal problems, such as domestic violence and child abuse, and has served a cathartic purpose for the families of some homicide victims." (Id. at 66-67)
(vi) The "benefits that flow from televised coverage of the judicial process are so important that they ought not to be sacrificed by barring cameras from the courtroom across-the-board." (Id. at 67)
(vii) "Video and photographs have become important tools in pre-senting news to the public, many of whom now rely on tele-vision as their principal source of information about public affairs." (Id.)
(viii) "The record developed by this Committee does not show that the fears regarding the impact of cameras on trial par-ticipants have been realized in New York during the experi-mental period." (Id. at 71)
(ix) "[M]any judges believe that witnesses' testimony is un-changed in the presence of cameras." (Id. at 72)
(x) "[W]itness intimidation is neither borne out by the record in New York nor sufficiently strong to warrant barring cameras from the courtroom across-the-board. Such witness concerns are adequately addressed, in our view, by all of the current safeguards in Section 218 and in the implementing rules" (emphasis added). (Id. at 73)
(xi) Claims that jurors will watch televised coverage of their case and will be influenced either by commentary about the case or by evidence ruled inadmissible and not presented to the jury are unsupported. (Id. at 71-72) "No one has drawn the Committee's attention to a specific case in New York in which jurors had improper communications regarding a tele-vised case or in which jurors disregarded a judge's instruc-tions not to watch televised coverage of the proceedings. Nor has it been suggested to us that the outcome of a particu-lar case in New York was altered by the presence of cam-eras." (Id. at 72)
(xii) "[M]ost judges felt that compared to similar cases covered only by the print media, lawyers made about the same num-ber of motions, objections and arguments in camera-covered cases and presented about the same amount of evidence and witnesses." (Id. at 73-74)
(xiii) "[W]e have no basis from our review to conclude that law-yers in camera-covered cases in New York State have failed to serve their clients and the public responsibly. The evi-dence from the record before this Committee is that they have met their professional obligations." (Id. at 74)
(xiv) "There was ample testimony and public comment that cam-eras raised some judges' performance and had a positive im-pact on judicial demeanor." (Id.)
(xv) "In the end, we are left with a record heavily weighted with opinions which suggest that judicial conduct may improve rather than worsen in the presence of cameras. There is no basis in this record to conclude that judges will not faithfully discharge their responsibilities if courtrooms are open to cameras. The evidence before this Committee is that they have met their obligations with a high degree of compe-tence." (Id. at 75)
(xvi) "[W]e believe that openness and the public access to informa-tion about trials afforded by television works as a safeguard, not a threat, to the defendant's rights." (Id. at 76)
(xvii) "Openness of public institutions, including the judiciary, is a key ingredient in our democracy. Among the many values served by openness are promoting public confidence in gov-ernment, providing the public with information about the workings of the judiciary, assuring the fairness of court pro-ceedings, and satisfying the appearance of justice." (Id. at 67)
(xviii) "Although televised coverage could, at times show the judi-cial system in an unfavorable light, we do not view that as a detriment. Rather, to the extent that such coverage offers an opportunity for improving the judicial system, we view it as a strength of our democratic system." (Id. at 78)
(xix) "The Committee's record includes strong evidence of com-pliance with the requirements and safeguards of Section 218 by representatives of the electronic news media. Reporters and photographers who testified before the Committee ap-peared to understand and respect the solemnity and dignity of the courtrooms they covered." (Id. at 70)

71. Despite the Feerick Committee's support for televised coverage of trial proceedings and recommendations to make Section 218 permanent, the Legislature failed to act; audio-visual coverage of trial court proceedings ceased on June 30, 1997, and Section 52 sprang back to life. No legislative action has since occurred.

Douglas P. Jacobs
Sworn to before me this
____ day of January, 2000
__________________________
Notary Public

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