The Council of Superior Court Judges is advancing a proposed rule addition which would place steep limits on the use of electronic devices inside of courtrooms. Proposed Rule 48 would state:
Rule 48 Unauthorized Recording of Court Proceedings Prohibited Except as provided under Rule 22, no persons other than the court reporter shall make any audio, video, photographic, or electronic recording of a court proceeding using any device unless expressly permitted by the court. Any such request must be submitted in writing to the court at least 24 hours prior to the proceeding, with notice to all parties. A violation of this rule may result in confiscation of the recording, removal of the violator from the courtroom, and subject the violator to contempt.
The rule is likely to be the subject of selective enforcement and takes away from the public nature of the proceedings.
The rule requires persons wishing to take pictures or record video or audio to make a request twenty-four hours in advance which is then subject to approval by the judge.
So, a family shows up for an adoption hearing and wants to have a lasting record of the proceeding, they are going to be told that they cannot do so because they did not make their request a day in advance?
A law school graduate and his family and friends appear to be sworn in before the court, pictures and video can't be taken because the request wasn't made in advance?
A successful candidate for office appears to be sworn in by a superior court judge
And, if a judge is going to allow such recordings without advance request, then why would a different standard apply to other situations.
Remember, most of what a court does is supposed to be open to the public. Also remember, Georgia is a state that allows for surreptitious recording under a lot of circumstances. It's hard to see how a judge has an expectation of privacy in what he does or says from the bench.
The commission offers two justifications for the proposed rule:
- to give formal notice to the parties and participants of the act of recording, and
- to protect the integrity of the official record or transcript.
Parties and participants in a court proceeding are engaging in a public proceeding in a public courthouse in a state which is committed to having open courtrooms. Moreover, Georgia is a state which allows legal recording of conversations without notice to the participants in the conversation so long as the recorder is a participant in the conversation. So, these same parties and participants would not be entitled to notice if the recording were occurring on the courthouse steps. Yet, in a superior court courtroom where there is likely to be a court reporter taking down proceedings, it is believed that they suddenly need notice that recording is occurring. That does not make sense.
The official record or transcript does not need protection. The official record is presumed accurate and very high evidence must be brought forward to overcome it. If someone brings forward a "doctored" recording, they face strenuous proof requirements and will face felony prosecution if a falsified record is tendered.
Neither offered justification supports the proposed action.
In addition, parties and attorneys have a right to make a record in any court proceeding. The obvious preference is to use a sworn and certified court reporter, but there are situations where that cannot be accomplished and audio or video recording must be done.
The Council denies that the proposed rule has anything to do with judges having been caught on recording engaging in improper behavior in open court. Yet, they have refused to allow an exception for law enforcement or Judicial Qualifications Commission investigations.
I am actually opposed to the exception because all it does is make a bad rule somewhat more palatable.
No party, attorney, witness, or judge should have an expectation of privacy in a public proceeding.should believe that they can control whether a recording of the event is occurring.
There are certainly exceptions that can be addressed. Child witnesses is an issue that has been floated. However, a judge can address those concerns by instructing that no recording is to occur during certain parts of a proceeding. However, even that relief should be stingily allowed. The right to a public proceeding should prevail in almost all situations.