Broadcasting Federal Criminal Proceedings

Broadcasting Federal Criminal Proceedings

INSIGHTi

Broadcasting Federal Criminal Proceedings
August 14, 2023
The August 1, 2023, criminal indictment of former President Donald Trump has prompted public
discussion of whether federal criminal proceedings can be televised or otherwise broadcast to the public.
Whether, and potentially how, video of federal court proceedings can be made available has been a topic
of interest to policymakers and commentators for decades. The anticipated publicity surrounding the
criminal proceedings involving former President Trump has brought renewed attention to the issue, with
some lawmakers, observers, and participants calling for the proceedings to be broadcast.
While most state courts allow video coverage of courtroom proceedings under certain circumstances,
recording and broadcasting of federal court proceedings is much more limited. In particular, subject to
limited exceptions, broadcasting of federal criminal proceedings is prohibited. This Insight explains the
current authorities that govern broadcasting of federal criminal proceedings, briefly compares the rules for
criminal cases with those that apply to federal civil litigation, and concludes with considerations for
Congress related to cameras in federal courts.
Federal Rules and Practice Regarding Courtroom Video
Prior to 1990, the Code of Conduct for United States Judges prohibited any photography or broadcasting
of federal cases. The Judicial Conference of the United States then adopted a policy enabling judges to
authorize cameras in the courtroom under certain circumstances. Separate procedural rules apply to
federal criminal and civil proceedings and affect the use of courtroom cameras.
Federal Criminal Cases
Former President Trump’s criminal case based on the August 1 indictment is proceeding in federal district
court. The Federal Rules of Criminal Procedure (Criminal Rules) govern procedure in all criminal
proceedings in U.S. district courts, courts of appeals, and the Supreme Court. Federal Rule of Criminal
Procedure 53 (Criminal Rule 53) provides: “Except as otherwise provided by a statute or these rules, the
court must not permit the taking of photographs . . . or the broadcasting of judicial proceedings from the
courtroom.”
As authorized in Criminal Rule 53, certain exceptions to this prohibition have been made, generally
involving using video technology to facilitate courtroom proceedings rather than to broadcast them.
Criminal Rules 5(g), 10(c), 40(d), and 43(b)(2) allow courts to conduct limited categories of criminal
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proceedings by “video teleconferencing” with the defendant’s consent. In addition, Section 15002(b) of
the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), enacted March 27, 2020, allowed
federal courts to authorize the handling of certain criminal proceedings by video or audio conference in
response to the COVID-19 pandemic; this authorization ended May 10, 2023.
The U.S. Court of Appeals for the Ninth Circuit allows cameras with advance permission. The court also
provides live video streaming of oral arguments and posts videos of arguments in both civil and criminal
appeals online.
Federal Civil Cases
The Federal Rules of Civil Procedure govern procedure in all civil actions and proceedings in federal
district courts, and the Federal Rules of Appellate Procedure govern procedure in federal courts of
appeals. These rules do not contain provisions comparable to Criminal Rule 53 limiting photography or
broadcasting in federal civil proceedings.
Most federal courts, however, do not allow recording or broadcasting of civil cases. Some federal district
and appellate courts allowed video in certain civil proceedings under two limited Judicial Conference
pilot programs that have since concluded. Three district courts currently allow some video coverage. In
addition to the Ninth Circuit, the Second Circuit also allows cameras in the courtroom in some cases
(expressly excluding criminal matters), and the Third Circuit provides video of some oral arguments.
Considerations for Congress
Because Criminal Rule 53 prohibits such broadcasting, it appears that a change or exception to the rule
would be required before broadcasting could be permitted in a federal criminal case. Such a change could
come from the Supreme Court via a rulemaking process (typically involving the Judicial Conference)
subject to congressional review, or from Congress via legislation.
The Rules Enabling Act grants the Supreme Court primary authority to “prescribe general rules of
practice and procedure . . . for cases in [federal] district courts . . . and courts of appeals.” The statute
requires the Supreme Court to transmit any proposed rule change to Congress by May 1 of the year in
which such amendment would take effect. Amendments take effect automatically unless Congress
legislates to reject, modify, or delay a proposed change.
In practice, rule changes typically originate from the Judicial Conference. Pursuant to the Rules Enabling
Act, Judicial Conference standing committees propose amendments, solicit public comments, then submit
the amendments to the Judicial Conference’s Committee on Rules of Practice and Procedure.
Amendments approved by that committee and the Judicial Conference are then transmitted to the
Supreme Court for adoption as outlined in the Act.
In the past, the Judicial Conference declined to recommend a general expansion of video coverage of
federal court proceedings, and the Supreme Court has not proposed any similar rule changes. In early
August 2023, some called on the Judicial Conference, or Chief Justice John Roberts in his capacity as its
presiding officer, to permit broadcasting of former President Trump’s criminal proceedings. Under the
Rules Enabling Act, any recommended change to the Criminal Rules adopted by the Judicial Conference
would then go to the Supreme Court for possible approval and transmission to Congress.
The Rules Enabling Act does not authorize a specific lower federal court or an individual judge to modify
the Federal Rules of Criminal Procedure. The Act and the Criminal Rules empower lower federal courts
to make their own procedural rules, but such local rules must be “consistent with Acts of Congress and
rules of practice and procedure prescribed” under the Rules Enabling Act. Similarly, the Criminal Rules
allow individual judges to “regulate practice” by issuing procedural orders in specific cases or standing

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orders that apply generally to cases before them, but such orders must be “consistent with federal law,
[the Criminal Rules], and the local rules of the district.”
As an alternative to the amendment process laid out in the Rules Enabling Act, Congress has the authority
to amend or create exceptions to the federal procedural rules. Congress has typically deferred to the
judiciary in determining many of its own procedures, and some have raised concerns about the
appropriate role of Congress in addressing courtroom broadcasts. In recent Congresses, legislation has
been introduced related to cameras in federal courts. For example, the Sunshine in the Courtroom Act
would allow a presiding judge in a federal district or appellate court to permit recording or broadcasts of
courtroom proceedings at the judge’s discretion.
Related legislation from previous Congresses has varied on multiple dimensions, including
• which federal courts would be covered;
• whether courts would be required to provide video or authorized to permit video use;
• what guidelines would regulate use of cameras or video footage and who would
determine them; and
• under what conditions certain proceedings or participants would not be subject to video
coverage.
Debates regarding whether to expand video broadcasting in the federal courts often weigh an
interest in providing public information about proceedings against preserving the integrity of the
legal process and due process rights of parties. Judges and observers have also raised concerns
about ensuring proper privacy protections for courtroom participants, including witnesses and
jurors, particularly in criminal trials.

Author Information

Sarah J. Eckman
Joanna R. Lampe
Analyst in American National Government
Legislative Attorney

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