Authorizes an experimental program in which presiding trial judges, in their discretion, may permit audio-visual coverage of civil and criminal court proceedings, including trials.
STATE OF NEW YORK
________________________________________________________________________
4658--A
2015-2016 Regular Sessions
IN SENATE
April 1, 2015
___________
Introduced by Sen. LANZA -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary -- recommitted
to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the judiciary law, in relation to audio-visual
recordings in the courtroom; to repeal section 218 of such law relat-
ing thereto; and providing for the repeal of such provisions upon
expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 218 of the judiciary law is REPEALED and a new
2 section 218 is added to read as follows:
3 § 218. Audio-visual coverage of judicial proceedings. 1. Authori-
4 zation. Notwithstanding the provisions of section fifty-two of the
5 civil rights law and subject to the provisions of this section, the
6 chief judge of the court of appeals or his or her designee may authorize
7 an experimental program in which presiding trial judges, in their
8 discretion, may permit audio-visual coverage of civil and criminal court
9 proceedings, including trials.
10 2. Definitions. For purposes of this section:
11 (a) "Administrative judge" shall mean the administrative judge of each
12 judicial district; the administrative judge of Nassau county or of
13 Suffolk county; the administrative judge of the civil court of the city
14 of New York or of the criminal court of the city of New York; or the
15 presiding judge of the court of claims.
16 (b) "Audio-visual coverage" shall mean the electronic broadcasting or
17 other transmission to the public of radio or television signals from the
18 courtroom, the recording of sound or light in the courtroom for later
19 transmission or reproduction, or the taking of still or motion pictures
20 in the courtroom by the news media.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01061-02-6
S. 4658--A 2
1 (c) "News media" shall mean any news reporting or news gathering agen-
2 cy and any employee or agent associated with such agency, including
3 television, radio, radio and television networks, news services, newspa-
4 pers, magazines, trade papers, in-house publications, professional jour-
5 nals or any other news reporting or news gathering agency, the function
6 of which is to inform the public, or some segment thereof.
7 (d) "Presiding trial judge" shall mean the justice or judge presiding
8 over proceedings at which audio-visual coverage is authorized pursuant
9 to this section.
10 (e) "Covert or undercover capacity" shall mean law enforcement activ-
11 ity involving criminal investigation by peace or police officers who
12 usually and customarily wear no uniform, badge or other official iden-
13 tification in public view.
14 (f) "Arraignment" shall have the same meaning as such term is defined
15 in subdivision nine of section 1.20 of the criminal procedure law.
16 (g) "Suppression hearing" shall mean a hearing on a motion made pursu-
17 ant to the provisions of section 710.20 of the criminal procedure law; a
18 hearing on a motion to determine the admissibility of any prior crimi-
19 nal, vicious or immoral acts of a defendant and any other hearing held
20 to determine the admissibility of evidence.
21 (h) "Nonparty witness" shall mean any witness in a criminal trial
22 proceeding who is not a party to such proceeding; except an expert or
23 professional witness, a peace or police officer who acted in the course
24 of his or her duties and was not acting in a covert or undercover capac-
25 ity in connection with the instant court proceeding, or any government
26 official acting in an official capacity, shall not be deemed to be a
27 "nonparty witness".
28 (i) "Visually obscured" shall mean that the face of a participant in a
29 criminal trial proceeding shall either not be shown or shall be rendered
30 visually unrecognizable to the viewer of such proceeding by means of
31 special editing by the news media.
32 3. Requests for coverage of proceedings; administrative review. (a)
33 Prior to the commencement of the proceedings, any news media interested
34 in providing audio-visual coverage of court proceedings shall file a
35 request with the presiding trial judge, if assigned, or if no assignment
36 has been made, to the judge responsible for making such assignment.
37 Requests for audio-visual coverage shall be made in writing and not less
38 than seven days before the commencement of the judicial proceeding, and
39 shall refer to the individual proceeding with sufficient identification
40 to assist the presiding trial judge in considering the request. Where
41 circumstances are such that an applicant cannot reasonably apply seven
42 or more days before the commencement of the proceeding, the presiding
43 trial judge may shorten the time period for requests.
44 (b) Permission for news media coverage shall be at the discretion of
45 the presiding trial judge. An order granting or denying a request for
46 audio-visual coverage of a proceeding shall be in writing and shall be
47 included in the record of such proceeding. Such order shall contain any
48 restrictions imposed by the judge on the audio-visual coverage and shall
49 contain a statement advising the parties that any violation of the order
50 is punishable by contempt pursuant to article nineteen of this chapter.
51 Such order for initial access shall be subject only to review by the
52 appropriate administrative judge; there shall be no further judicial
53 review of such order or determination during the pendency of such
54 proceeding before such trial judge. No order allowing audio-visual
55 coverage of a proceeding shall be sealed.
S. 4658--A 3
1 (c) Subject to the provisions of subdivision seven of this section,
2 upon a request for audio-visual coverage of court proceedings, the
3 presiding trial judge shall, at a minimum, take into account the follow-
4 ing factors: (i) the type of case involved; (ii) whether such coverage
5 would cause harm to any participant in the case or otherwise interfere
6 with the fair administration of justice, the advancement of a fair trial
7 or the rights of the parties; (iii) whether any order directing the
8 exclusion of witnesses from the courtroom prior to their testimony could
9 be rendered substantially ineffective by allowing audio-visual coverage
10 that could be viewed by such witnesses to the detriment of any party;
11 (iv) whether such coverage would interfere with any law enforcement
12 activity; or (v) whether the subject matter involves lewd or scandalous
13 matters.
14 (d) A request for audio-visual coverage made after the commencement of
15 a trial proceeding in which a jury is sitting shall not be granted
16 unless (i) counsel for all parties to the proceeding consent to such
17 coverage, or (ii) the request is for coverage of the verdict and/or
18 sentencing in such proceeding.
19 4. Supervision of audio-visual coverage; mandatory pretrial confer-
20 ence; judicial discretion. (a) Audio-visual coverage of a court
21 proceeding shall be subject to the supervision of the presiding trial
22 judge. In supervising audio-visual coverage of court proceedings, in
23 particular any which involve lewd or scandalous matters, a presiding
24 trial judge shall, where necessary for the protection of any participant
25 or to preserve the welfare of a minor, prohibit all or any part of the
26 audio-visual coverage of such participant, minor or exhibit.
27 (b) A pretrial conference shall be held in each case in which audio-
28 visual coverage of a proceeding has been approved. At such conference
29 the presiding trial judge shall review, with counsel and the news media
30 who will participate in the audio-visual coverage, the restrictions to
31 be imposed. Counsel shall convey to the court any concerns of prospec-
32 tive witnesses with respect to audio-visual coverage.
33 (c) There shall be no limitation on the exercise of discretion under
34 this subdivision except as provided by law. The presiding trial judge
35 may at any time modify or reverse any prior order or determination.
36 5. Consent. (a) Audio-visual coverage of judicial proceedings, except
37 for arraignments and suppression hearings, shall not be limited by the
38 objection of counsel, parties, or jurors, except for a finding by the
39 presiding trial judge of good or legal cause.
40 (b) Audio-visual coverage of arraignments and suppression hearings
41 shall be permitted only with the consent of all parties to the proceed-
42 ing; provided, however, where a party is not yet represented by counsel
43 consent may not be given unless the party has been advised of his or her
44 right to the aid of counsel pursuant to subdivision four of section
45 170.10 or section 180.10 of the criminal procedure law and the party has
46 affirmatively elected to proceed without counsel at such proceeding.
47 (c) Counsel to each party in a criminal trial proceeding shall advise
48 each nonparty witness that he or she has the right to request that his
49 or her image be visually obscured during said witness' testimony, and
50 upon such request the presiding trial judge shall order the news media
51 to visually obscure the visual image of the witness in any and all audi-
52 o-visual coverage of the judicial proceeding.
53 6. Restrictions relating to equipment and personnel; sound and light
54 criteria. Where audio-visual coverage of court proceedings is authorized
55 pursuant to this section, the following restrictions shall be observed:
56 (a) Equipment and personnel:
S. 4658--A 4
1 (i) No more than two electronic or motion picture cameras and two
2 camera operators shall be permitted in any proceeding.
3 (ii) No more than one photographer to operate two still cameras with
4 not more than two lenses for each camera shall be permitted in any
5 proceeding.
6 (iii) No more than one audio system for broadcast purposes shall be
7 permitted in any proceeding. Audio pickup for all media purposes shall
8 be effectuated through existing audio systems in the court facility. If
9 no technically suitable audio system is available, microphones and
10 related wiring essential for media purposes shall be supplied by those
11 persons providing audio-visual coverage. Any microphones and sound
12 wiring shall be unobtrusive and located in places designated by the
13 presiding trial judge.
14 (iv) Notwithstanding the provisions of subparagraphs (i), (ii) and
15 (iii) of this paragraph, the presiding trial judge may modify his or her
16 original order to increase or decrease the amount of equipment that will
17 be permitted into a courtroom on a finding of special circumstances so
18 long as it will not impair the dignity of the court or the judicial
19 process.
20 (v) Notwithstanding the provisions of subparagraphs (i), (ii) and
21 (iii) of this paragraph, the equipment authorized therein shall not be
22 admitted into a court proceeding unless all persons interested in
23 providing audio-visual coverage of such proceedings shall have entered
24 into pooling arrangements for their respective groups. Furthermore, a
25 pool operator for the electronic and motion picture media and a pool
26 operator for the still photography media shall be selected, and proce-
27 dures for cost sharing and dissemination of audio-visual material estab-
28 lished. The court shall not be called upon to mediate or resolve any
29 dispute as to such arrangements. In making pooling arrangements, consid-
30 eration shall be given to educational users' needs for full coverage of
31 entire proceedings.
32 (b) Sound and light criteria:
33 (i) Only electronic and motion picture cameras, audio equipment and
34 still camera equipment which do not produce distracting sound or light
35 shall be employed to cover judicial proceedings. The chief administrator
36 of the courts shall promulgate a list of acceptable equipment models.
37 (ii) No motorized drives shall be permitted, and no moving lights,
38 flash attachments, or sudden lighting changes shall be permitted during
39 judicial proceedings.
40 (iii) No light or signal visible or audible to trial participants
41 shall be used on any equipment during audio-visual coverage to indicate
42 whether it is operating.
43 (iv) It shall be the affirmative duty of any person desiring to use
44 equipment other than that authorized by the chief administrator to
45 demonstrate to the presiding trial judge, adequately in advance of any
46 proceeding, that the equipment sought to be utilized meets acceptable
47 sound and light criteria. A failure to obtain advance judicial approval
48 for equipment shall preclude its use in any proceeding.
49 (v) With the concurrence of the presiding trial judge modifications
50 and additions may be made to light sources existing in the facility,
51 provided such modifications or additions are installed and maintained at
52 the expense of the news media who are providing audio-visual coverage
53 and provided they are not distracting or otherwise offensive.
54 (c) Location of equipment and personnel. Cameras, equipment and
55 personnel shall be positioned in locations designated by the presiding
56 trial judge.
S. 4658--A 5
1 (i) All audio-visual coverage operators shall assume their assigned,
2 fixed position within the designated area and once established in such
3 position, shall act in a manner so as not to call attention to their
4 activities.
5 (ii) The areas so designated shall provide reasonable access to cover-
6 age with the least possible interference with court proceedings. Equip-
7 ment that is not necessary for audio-visual coverage from inside the
8 courtroom shall be located in an area outside the courtroom.
9 (d) Movement of equipment during proceedings. Equipment shall not be
10 placed in, moved about or removed from the courtroom, and related
11 personnel shall not move about the courtroom, except prior to commence-
12 ment or after adjournment of proceedings each day, or during a recess.
13 Camera film and lenses shall be changed only during a recess in
14 proceedings.
15 7. Restrictions on audio-visual coverage. Notwithstanding the initial
16 approval of a request for audio-visual coverage of any court proceeding,
17 the presiding trial judge shall have discretion throughout the proceed-
18 ing to revoke such approval or limit such coverage, and may where appro-
19 priate exercise such discretion to limit, restrict or prohibit audio or
20 video broadcast or photography of any part of the proceeding in the
21 courtroom, or of the name or features of any participant therein. In any
22 case, audio-visual coverage shall be limited as follows:
23 (a) no audio pickup or audio broadcast of conferences which occur in a
24 court facility between attorneys and their clients, between co-counsel
25 of a client, or between counsel and the presiding trial judge, shall be
26 permitted without the prior express consent of all participants in the
27 conference;
28 (b) no conference in chambers shall be subject to audio-visual cover-
29 age;
30 (c) no audio-visual coverage of the selection of the prospective jury
31 during voir dire shall be permitted;
32 (d) no audio-visual coverage of the jury, or of any juror or alternate
33 juror, while in the jury box, in the courtroom, in the jury deliberation
34 room during recess, or while going to or from the deliberation room at
35 any time shall be permitted; provided, however, that, upon consent of
36 the foreperson of a jury, the presiding trial judge may, in his or her
37 discretion, permit audio coverage of such foreperson delivering a
38 verdict;
39 (e) no audio-visual coverage shall be permitted of a witness, who as a
40 peace or police officer acted in a covert or undercover capacity in
41 connection with the instant court proceeding, without the prior written
42 consent of such witness;
43 (f) no audio-visual coverage shall be permitted of a witness, who as a
44 peace or police officer is currently engaged in a covert or undercover
45 capacity, without the prior written consent of such witness;
46 (g) no audio-visual coverage shall be permitted of the victim in a
47 prosecution for rape, criminal sexual act, sexual abuse or other sex
48 offense under article one hundred thirty or section 255.25 of the penal
49 law; notwithstanding the initial approval of a request for audio-visual
50 coverage of such a proceeding, the presiding trial judge shall have
51 discretion throughout the proceeding to limit any coverage which would
52 identify the victim, except that said victim can request of the presid-
53 ing trial judge that audio-visual coverage be permitted of his or her
54 testimony, or in the alternative the victim can request that coverage of
55 his or her testimony be permitted but that his or her image shall be
56 visually obscured by the news media, and the presiding trial judge in
S. 4658--A 6
1 his or her discretion shall grant the request of the victim for the
2 coverage specified;
3 (h) no audio-visual coverage of any arraignment or suppression hearing
4 shall be permitted without the prior consent of all parties to the
5 proceeding; provided, however, where a party is not yet represented by
6 counsel consent may not be given unless the party has been advised of
7 his or her right to the aid of counsel pursuant to subdivision four of
8 section 170.10 or section 180.10 of the criminal procedure law and the
9 party has affirmatively elected to proceed without counsel at such
10 proceeding;
11 (i) no judicial proceeding shall be scheduled, delayed, reenacted or
12 continued at the request of, or for the convenience of the news media;
13 (j) no audio-visual coverage of any participant shall be permitted if
14 the presiding trial judge finds that such coverage is liable to endanger
15 the safety of any person;
16 (k) no audio-visual coverage of any judicial proceedings which are by
17 law closed to the public, or which may be closed to the public and which
18 have been closed by the presiding trial judge shall be permitted; and
19 (l) no audio-visual coverage shall be permitted which focuses on or
20 features a family member of a victim or a party in the trial of a crimi-
21 nal case, except while such family member is testifying. Audio-visual
22 coverage operators shall make all reasonable efforts to determine the
23 identity of such persons, so that such coverage shall not occur.
24 8. Violations. Any violation of an order or determination issued under
25 this section shall be punishable as a contempt pursuant to article nine-
26 teen of this chapter.
27 9. Review committee. (a) There shall be created a committee to review
28 audio-visual coverage of court proceedings. The committee shall consist
29 of twelve members of whom: three to be appointed by the governor, three
30 to be appointed by the chief judge of the court of appeals, two to be
31 appointed by the temporary president of the senate, two to be appointed
32 by the speaker of the assembly, one to be appointed by the minority
33 leader of the senate and one to be appointed by the minority leader of
34 the assembly. The chair of the committee shall be appointed by the chief
35 judge of the court of appeals. At least one member of the committee and
36 no more than two members of the committee shall be a representative of
37 the broadcast media, be employed by the broadcast media or receive
38 compensation from the broadcast media. At least two members of the
39 committee shall be members of the bar, engaged in the practice of law
40 and regularly conduct trials and/or appellate arguments; and at least
41 one member of the committee shall by professional training and expertise
42 be qualified to evaluate and analyze research methodology relevant to
43 analyzing the impact and effect of audio-visual coverage of judicial
44 proceedings. No one who has served on an earlier committee established
45 by law to review audio-visual coverage of judicial proceedings in this
46 state may be appointed to such committee. No member or employee of the
47 executive, legislative, or judicial branches of the state government may
48 be appointed to such committee.
49 (b) The members of the committee shall serve without compensation for
50 their services as members of the committee, except that each of the
51 nonpublic members of the committee may be allowed the necessary and
52 actual travel, meals and lodging expenses which he or she shall incur in
53 the performance of his or her duties under this section. Any expenses
54 incurred pursuant to this section shall be a charge against the office
55 of court administration.
S. 4658--A 7
1 (c) The committee shall have the power, duty and responsibility to
2 evaluate, analyze and monitor the provisions of this section. The office
3 of court administration and all participants in proceedings where audi-
4 o-visual coverage was permitted, including judges, attorneys and jurors,
5 shall cooperate with the committee in connection with the review of the
6 impact of audio-visual coverage on such proceedings. The committee shall
7 request participation and assistance from the New York state bar associ-
8 ation and other bar associations. The committee shall issue a report to
9 the legislature, the governor and the chief judge of the court of
10 appeals evaluating the efficacy of the program and whether any public
11 benefits accrue from the program, any abuses that occurred during the
12 program and the extent to which and in what way the conduct of partic-
13 ipants in court proceedings changes when audio-visual coverage is pres-
14 ent. The committee shall expressly and specifically analyze and evaluate
15 the degree of compliance by trial judges and the media with the
16 provisions of this section and the effect of audio-visual coverage on
17 the conduct of trial judges both inside and outside the courtroom. Such
18 report shall be submitted to the legislature, the governor and the chief
19 judge of the court of appeals by January thirty-first, two thousand
20 seventeen.
21 10. Rules and regulations. The chief administrator shall promulgate
22 appropriate rules and regulations for the implementation of the
23 provisions of this section after affording all interested persons, agen-
24 cies and institutions an opportunity to review and comment thereon. Such
25 rules and regulations shall include provisions to ensure that audio-vi-
26 sual coverage of trial proceedings shall not interfere with the decorum
27 and dignity of courtrooms and court facilities.
28 § 2. This act shall take effect on the first of November next succeed-
29 ing the date on which it shall have become a law and shall expire and be
30 deemed repealed 5 years after such effective date.
