N.Y. Judiciary Law § 218: Audio-visual coverage of judicial proceedings

* § 218. Audio-visual coverage of judicial proceedings. 1.

Authorization. Notwithstanding the provisions of section fifty-two of

the civil rights law and subject to the provisions of this section, the

chief judge of the state or his designee may authorize an experimental

program in which presiding trial judges, in their discretion, may permit

audio-visual coverage of civil and criminal court proceedings, including

trials.

2. Definitions. For purposes of this section:

(a) "Administrative judge" shall mean the administrative judge of each

judicial district; the administrative judge of Nassau county or of

Suffolk county; the administrative judge of the civil court of the city

of New York or of the criminal court of the city of New York; or the

presiding judge of the court of claims.

(b) "Audio-visual coverage" shall mean the electronic broadcasting or

other transmission to the public of radio or television signals from the

courtroom, the recording of sound or light in the courtroom for later

transmission or reproduction, or the taking of still or motion pictures

in the courtroom by the news media.

(c) "News media" shall mean any news reporting or news gathering

agency and any employee or agent associated with such agency, including

television, radio, radio and television networks, news services,

newspapers, magazines, trade papers, in-house publications, professional

journals or any other news reporting or news gathering agency, the

function of which is to inform the public, or some segment thereof.

(d) "Presiding trial judge" shall mean the justice or judge presiding

over proceedings at which audio-visual coverage is authorized pursuant

to this section.

(e) "Covert or undercover capacity" shall mean law enforcement

activity involving criminal investigation by peace or police officers

who usually and customarily wear no uniform, badge, or other official

identification in public view.

(f) "Arraignment" shall have the same meaning as such term is defined

in subdivision nine of section 1.20 of the criminal procedure law.

(g) "Suppression hearing" shall mean a hearing on a motion made

pursuant to the provisions of section 710.20 of the criminal procedure

law; a hearing on a motion to determine the admissibility of any prior

criminal, vicious or immoral acts of a defendant and any other hearing

held to determine the admissibility of evidence.

(h) "Nonparty witness" shall mean any witness in a criminal trial

proceeding who is not a party to such proceeding; except an expert or

professional witness, a peace or police officer who acted in the course

of his or her duties and was not acting in a covert or undercover

capacity in connection with the instant court proceeding, or any

government official acting in an official capacity, shall not be deemed

to be a "nonparty witness".

(i) "Visually obscured" shall mean that the face of a participant in a

criminal trial proceeding shall either not be shown or shall be rendered

visually unrecognizable to the viewer of such proceeding by means of

special editing by the news media.

3. Requests for coverage of proceedings; administrative review.

(a) Prior to the commencement of the proceedings, any news media

interested in providing audio-visual coverage of court proceedings shall

file a request with the presiding trial judge, if assigned, or if no

assignment has been made, to the judge responsible for making such

assignment. Requests for audio-visual coverage shall be made in writing

and not less than seven days before the commencement of the judicial

proceeding, and shall refer to the individual proceeding with sufficient

identification to assist the presiding trial judge in considering the

request. Where circumstances are such that an applicant cannot

reasonably apply seven or more days before the commencement of the

proceeding, the presiding trial judge may shorten the time period for

requests.

(b) Permission for news media coverage shall be at the discretion of

the presiding trial judge. An order granting or denying a request for

audio-visual coverage of a proceeding shall be in writing and shall be

included in the record of such proceeding. Such order shall contain any

restrictions imposed by the judge on the audio-visual coverage and shall

contain a statement advising the parties that any violation of the order

is punishable by contempt pursuant to article nineteen of this chapter.

Such order for initial access shall be subject only to review by the

appropriate administrative judge; there shall be no further judicial

review of such order or determination during the pendency of such

proceeding before such trial judge. No order allowing audio-visual

coverage of a proceeding shall be sealed.

(c) Subject to the provisions of subdivision seven of this section,

upon a request for audio-visual coverage of court proceedings, the

presiding trial judge shall, at a minimum, take into account the

following factors: (i) the type of case involved; (ii) whether such

coverage would cause harm to any participant in the case or otherwise

interfere with the fair administration of justice, the advancement of a

fair trial or the rights of the parties; (iii) whether any order

directing the exclusion of witnesses from the courtroom prior to their

testimony could be rendered substantially ineffective by allowing

audio-visual coverage that could be viewed by such witnesses to the

detriment of any party; (iv) whether such coverage would interfere with

any law enforcement activity; or (v) involve lewd or scandalous matters.

(d) A request for audio-visual coverage made after the commencement of

a trial proceeding in which a jury is sitting shall not be granted

unless, (i) counsel for all parties to the proceeding consent to such

coverage, or (ii) the request is for coverage of the verdict and/or

sentencing in such proceeding.

4. Supervision of audio-visual coverage; mandatory pretrial

conference; judicial discretion.

(a) Audio-visual coverage of a court proceeding shall be subject to

the supervision of the presiding trial judge. In supervising

audio-visual coverage of court proceedings, in particular any which

involve lewd or scandalous matters, a presiding trial judge shall, where

necessary for the protection of any participant or to preserve the

welfare of a minor, prohibit all or any part of the audio-visual

coverage of such participant, minor or exhibit.

(b) A pretrial conference shall be held in each case in which

audio-visual coverage of a proceeding has been approved. At such

conference the presiding trial judge shall review, with counsel and the

news media who will participate in the audio-visual coverage, the

restrictions to be imposed. Counsel shall convey to the court any

concerns of prospective witnesses with respect to audio-visual coverage.

(c) There shall be no limitation on the exercise of discretion under

this subdivision except as provided by law. The presiding trial judge

may at any time modify or reverse any prior order or determination.

5. Consent. (a) Audio-visual coverage of judicial proceedings, except

for arraignments and suppression hearings, shall not be limited by the

objection of counsel, parties, or jurors, except for a finding by the

presiding trial judge of good or legal cause.

(b) Audio-visual coverage of arraignments and suppression hearings

shall be permitted only with the consent of all parties to the

proceeding; provided, however, where a party is not yet represented by

counsel consent may not be given unless the party has been advised of

his or her right to the aid of counsel pursuant to subdivision four of

section 170.10 or 180.10 of the criminal procedure law and the party has

affirmatively elected to proceed without counsel at such proceeding.

(c) Counsel to each party in a criminal trial proceeding shall advise

each nonparty witness that he or she has the right to request that his

or her image be visually obscured during said witness' testimony, and

upon such request the presiding trial judge shall order the news media

to visually obscure the visual image of the witness in any and all

audio-visual coverage of the judicial proceeding.

6. Restrictions relating to equipment and personnel; sound and light

criteria. Where audio-visual coverage of court proceedings is authorized

pursuant to this section, the following restrictions shall be observed:

(a) Equipment and personnel:

(i) No more than two electronic or motion picture cameras and two

camera operators shall be permitted in any proceeding.

(ii) No more than one photographer to operate two still cameras with

not more than two lenses for each camera shall be permitted in any

proceeding.

(iii) No more than one audio system for broadcast purposes shall be

permitted in any proceeding. Audio pickup for all media purposes shall

be effectuated through existing audio systems in the court facility. If

no technically suitable audio system is available, microphones and

related wiring essential for media purposes shall be supplied by those

persons providing audio-visual coverage. Any microphones and sound

wiring shall be unobtrusive and located in places designated by the

presiding trial judge.

(iv) Notwithstanding the provisions of subparagraphs (i), (ii) and

(iii) of this paragraph, the presiding trial judge may modify his

original order to increase or decrease the amount of equipment that will

be permitted into a courtroom on a finding of special circumstances so

long as it will not impair the dignity of the court or the judicial

process.

(v) Notwithstanding the provisions of subparagraphs (i), (ii) and

(iii) of this paragraph, the equipment authorized therein shall not be

admitted into a court proceeding unless all persons interested in

providing audio-visual coverage of such proceedings shall have entered

into pooling arrangements for their respective groups. Furthermore, a

pool operator for the electronic and motion picture media and a pool

operator for the still photography media shall be selected, and

procedures for cost sharing and dissemination of audio-visual material

established. The court shall not be called upon to mediate or resolve

any dispute as to such arrangements. In making pooling arrangements,

consideration shall be given to educational users' needs for full

coverage of entire proceedings.

(b) Sound and light criteria:

(i) Only electronic and motion picture cameras, audio equipment and

still camera equipment which do not produce distracting sound or light

shall be employed to cover judicial proceedings. The chief administrator

of the courts shall promulgate a list of acceptable equipment models.

(ii) No motorized drives shall be permitted, and no moving lights,

flash attachments, or sudden lighting changes shall be permitted during

judicial proceedings.

(iii) No light or signal visible or audible to trial participants

shall be used on any equipment during audio-visual coverage to indicate

whether it is operating.

(iv) It shall be the affirmative duty of any person desiring to use

equipment other than that authorized by the chief administrator to

demonstrate to the presiding trial judge, adequately in advance of any

proceeding, that the equipment sought to be utilized meets acceptable

sound and light criteria. A failure to obtain advance judicial approval

for equipment shall preclude its use in any proceeding.

(v) With the concurrence of the presiding trial judge modifications

and additions may be made to light sources existing in the facility,

provided such modification or additions are installed and maintained at

the expense of the news media who are providing audio-visual coverage

and provided they are not distracting or otherwise offensive.

(c) Location of equipment and personnel. Cameras, equipment and

personnel shall be positioned in locations designated by the presiding

trial judge.

(i) All audio-visual coverage operators shall assume their assigned,

fixed position within the designated area and once established in such

position, shall act in a manner so as not to call attention to their

activities.

(ii) The areas so designated shall provide reasonable access to

coverage with the least possible interference with court proceedings.

Equipment that is not necessary for audio-visual coverage from inside

the courtroom shall be located in an area outside the courtroom.

(d) Movement of equipment during proceedings. Equipment shall not be

placed in, moved about or removed from the courtroom, and related

personnel shall not move about the courtroom, except prior to

commencement or after adjournment of proceedings each day, or during a

recess. Camera film and lenses shall be changed only during a recess in

proceedings.

7. Restrictions on audio-visual coverage. Notwithstanding the initial

approval of a request for audio-visual coverage of any court proceeding,

the presiding trial judge shall have discretion throughout the

proceeding to revoke such approval or limit such coverage, and may where

appropriate exercise such discretion to limit, restrict or prohibit

audio or video broadcast or photography of any part of the proceeding in

the courtroom, or of the name or features of any participant therein. In

any case, audio-visual coverage shall be limited as follows:

(a) no audio pickup or audio broadcast of conferences which occur in a

court facility between attorneys and their clients, between co-counsel

of a client, or between counsel and the presiding trial judge, shall be

permitted without the prior express consent of all participants in the

conference;

(b) no conference in chambers shall be subject to audio-visual

coverage;

(c) no audio-visual coverage of the selection of the prospective jury

during voir dire shall be permitted;

(d) no audio-visual coverage of the jury, or of any juror or alternate

juror, while in the jury box, in the courtroom, in the jury deliberation

room during recess, or while going to or from the deliberation room at

any time shall be permitted; provided, however, that, upon consent of

the foreperson of a jury, the presiding trial judge may, in his or her

discretion, permit audio coverage of such foreperson delivering a

verdict;

(e) no audio-visual coverage shall be permitted of a witness, who as a

peace or police officer acted in a covert or undercover capacity in

connection with the instant court proceeding, without the prior written

consent of such witness;

(f) no audio-visual coverage shall be permitted of a witness, who as a

peace or police officer is currently engaged in a covert or undercover

capacity, without the prior written consent of such witness;

(g) no audio-visual coverage shall be permitted of the victim in a

prosecution for rape, criminal sexual act, sexual abuse or other sex

offense under article one hundred thirty or section 255.25 of the penal

law; notwithstanding the initial approval of a request for audio-visual

coverage of such a proceeding, the presiding trial judge shall have

discretion throughout the proceeding to limit any coverage which would

identify the victim, except that said victim can request of the

presiding trial judge that audio-visual coverage be permitted of his or

her testimony, or in the alternative the victim can request that

coverage of his or her testimony be permitted but that his or her image

shall be visually obscured by the news media, and the presiding trial

judge in his or her discretion shall grant the request of the victim for

the coverage specified;

(h) no audio-visual coverage of any arraignment or suppression hearing

shall be permitted without the prior consent of all parties to the

proceeding; provided, however, where a party is not yet represented by

counsel consent may not be given unless the party has been advised of

his or her right to the aid of counsel pursuant to subdivision four of

section 170.10 or 180.10 of the criminal procedure law and the party has

affirmatively elected to proceed without counsel at such proceeding;

(i) no judicial proceeding shall be scheduled, delayed, reenacted or

continued at the request of, or for the convenience of the news media;

(j) no audio-visual coverage of any participant shall be permitted if

the presiding trial judge finds that such coverage is liable to endanger

the safety of any person;

(k) no audio-visual coverage of any judicial proceedings which are by

law closed to the public, or which may be closed to the public and which

have been closed by the presiding trial judge shall be permitted; and

(l) no audio-visual coverage shall be permitted which focuses on or

features a family member of a victim or a party in the trial of a

criminal case, except while such family member is testifying.

Audio-visual coverage operators shall make all reasonable efforts to

determine the identity of such persons, so that such coverage shall not

occur.

8. Violations. Any violation of an order or determination issued under

this section shall be punishable as a contempt pursuant to article

nineteen of this chapter.

9. Review committee. (a) There shall be created a committee to review

audio-visual coverage of court proceedings. The committee shall consist

of twelve members, three to be appointed by the governor, three to be

appointed by the chief judge of the courts, two to be appointed by the

majority leader of the senate, two to be appointed by the speaker of the

assembly, one to be appointed by the minority leader of the senate and

one to be appointed by minority leader of the assembly. The chair of the

committee shall be appointed by the chief judge of the courts. At least

one member of the committee and no more than two members of the

committee shall be a representative of the broadcast media, be employed

by the broadcast media, or receive compensation from the broadcast

media. At least two members of the committee shall be members of the

bar, engaged in the practice of law, and regularly conduct trials and/or

appellate arguments; and at least one member of the committee shall by

professional training and expertise be qualified to evaluate and analyze

research methodology relevant to analyzing the impact and effect of

audio-visual coverage of judicial proceedings. No one who has served on

an earlier committee established by law to review audio-visual coverage

of judicial proceedings in New York state may be appointed to such

committee. No member or employee of the executive, legislative, or

judicial branches of the state government may be appointed to such

committee.

(b) The members of the committee shall serve without compensation for

their services as members of the committee, except that each of the

nonpublic members of the committee may be allowed the necessary and

actual travel, meals and lodging expenses which he or she shall incur in

the performance of his or her duties under this section. Any expenses

incurred pursuant to this section shall be a charge against the office

of court administration.

(c) The committee shall have the power, duty and responsibility to

evaluate, analyze, and monitor the provisions of this section. The

office of court administration and all participants in proceedings where

audio-visual coverage was permitted, including judges, attorneys and

jurors, shall cooperate with the committee in connection with the review

of the impact of audio-visual coverage on such proceedings. The

committee shall request participation and assistance from the New York

state bar association and other bar associations. The committee shall

issue a report to the legislature, the governor, and the chief judge

evaluating the efficacy of the program and whether any public benefits

accrue from the program, any abuses that occurred during the program,

and the extent to which and in what way the conduct of participants in

court proceedings changes when audio-visual coverage is present. The

committee shall expressly and specifically analyze and evaluate the

degree of compliance by trial judges and the media with the provisions

of this section and the effect of audio-visual coverage on the conduct

of trial judges both inside and outside the courtroom. Such report shall

be submitted to the legislature, the governor and the chief judge by

January thirty-first, nineteen hundred ninety-seven.

10. Rules and regulations. The chief administrator shall promulgate

appropriate rules and regulations for the implementation of the

provisions of this section after affording all interested persons,

agencies and institutions an opportunity to review and comment thereon.

Such rules and regulations shall include provisions to ensure that

audio-visual coverage of trial proceedings shall not interfere with the

decorum and dignity of courtrooms and court facilities.

11. Duration. The provisions of this section shall be of no force and

effect after June thirtieth, nineteen hundred ninety-seven.

* NB Expired June 30, 1997