After the Chauvin trial, are more Minnesota court cases likely to be livestreamed?

The trial of Derek Chauvin was unusual in many ways: It’s rare to see a police officer charged with murder for involvement in an on-duty killing and rarer still for that officer to be convicted.

It was also the first Minnesota criminal trial ever to be streamed and on television from start to finish. Unlike in some states, cameras are rarely found in Minnesota criminal trial courtrooms. Due to the need to keep the courtroom mostly empty to maintain social distancing amid the COVID-19 pandemic, Judge Peter Cahill decided to allow cameras in this case. That meant people from Minnesota and around the world could tune in to watch the entire process play out from jury selection to verdict.

For the most part, the Chauvin trial — and its broadcast — seemed to go smoothly. Could that mean we may start to see more Minnesota trials livestreamed?

Cameras in the courtroom

These days, it’s often pretty easy for a citizen to see what their government is doing by watching a livestreamed City Council meeting, legislative hearing or congressional debate. Cameras are routinely used in these settings to make the functions of government visible to the public — even those who can’t physically make it down to City Hall, the Capitol or Congress.

That’s not necessarily the case for the courts.

The concept of court proceedings being open to the public, enshrined in the Sixth Amendment to the U.S. Constitution, was inherited by U.S. courts from English ones. The reasoning behind it is that if court was held in public, the process of justice would be carried out more fairly and transparently.

That idea that trials are conducted in public in the U.S. has been upheld, such as in the 1980 U.S. Supreme Court decision Richmond Newspapers, Inc. v. Virginia. In that case, a Virginia court ordered a murder trial be closed to the public at the request of the defendant. A newspaper company sued and ultimately won at the U.S. Supreme Court, which affirmed that trials had been presumptively public in the U.S. since its inception, that public trials help ensure fairly conducted proceedings, and to help the community have confidence that justice is being served.

But the Supreme Court has never extended that presumption of access to cameras, said Jane Kirtley, the Silha Professor of Media Ethics and Law at the University of Minnesota’s School of Journalism and Mass Communication.

As a result, different states have different rules about when and whether cameras are allowed in court. Florida has made cameras allowed in most cases in criminal trials. There, the onus is on the party seeking to exclude cameras to prove that the presence of cameras would deny the defendant a fair trial, according to the Florida Bar Association.

Cameras are presumed to be allowed in Minnesota criminal courtrooms only during proceedings that take place after a guilty plea has been accepted or a guilty verdict has come down. These proceedings are usually sentencing hearings. During trials, court rules allow cameras if the judge and both parties agree. In the Chauvin trial, the prosecution objected to cameras, but Cahill waived the rule requiring all parties to consent, citing the need for public access to the trial amid the pandemic.

‘It worked really well in this case’

In his decision to allow cameras, Cahill cited the necessities of social distancing and not having a crowd in the Hennepin County Government Center given the COVID-19 pandemic.

“The only way to vindicate the defendants’ constitutional right to a public trial and the media’s and public’s constitutional right of access to criminal trials is to allow audio and video coverage of the trial,” Cahill wrote in November. There were some stipulations: among them, the faces of the jury would not be shown on camera, nor would witnesses under the age of 18.

Normally, having cameras in a Minnesota criminal courtroom during the trial would require the consent of both the prosecution and the defense. In this case, the prosecution asked Cahill to reconsider allowing camera coverage of the trial, but the judge refused, citing the need to ensure the public’s access to the trial amid the pandemic.

“I think it worked really well in this case,” said Rachel Moran, associate professor of law at the University of St. Thomas School of Law. “It felt very much like a livestream rather than a dramatization. It wasn’t as if you were listening in to commentators all the time.”

Minnesota Attorney General Keith Ellison initially opposed having cameras in the courtroom, citing potential intimidation of witnesses giving testimony. After the trial, he seemed to have changed his mind.

“I thought it would alter the way the lawyers handled the case and handled the evidence. But it went pretty well. I was very grateful that Judge Cahill allowed the juvenile witnesses to not be on camera,” Ellison told WCCO.

Kirtley credited Cahill with running a no-nonsense courtroom that was absent of histrionics. She also observed that COVID-19 measures like plexiglass and restrictions on moving around the courtroom may have further removed drama by maintaining a formal environment where movement about the courtroom was stifled.

Overall, Kirtley said watching the trial gave ordinary people the opportunity to understand something lawyers know: that sometimes, trials can be kind of boring.

“To me that’s a good thing,” she said. “It shows how deliberate the process of justice is and how bound by the rules of evidence and procedure we are. For some people, obviously that seems boring as compared to what you would see on Netflix or a show where they heighten everything for dramatic purposes. It’s a wonderful civics education.”

For a state that’s new to cameras in the courtroom, Kirtley was also surprised by the lack of technical difficulties. During jury selection, there was briefly concern that jurors were being reflected in the plexiglass barriers erected to prevent COVID-19 transmission. The situation was quickly fixed.

“That, I think, is illustrative of how careful everyone is being,” she said.

The downsides of cameras

Still, not everyone has a favorable opinion about the presence of cameras in courtrooms, and some have concerns about the “fair” and “public” part of the Sixth Amendment conflicting when they are present.

A survey of California judges published in 2017 found many skeptical of facets of having cameras in the courtroom, with a majority of respondents concerned about how they would affect jury selection, deliberations and verdicts; witnesses’ willingness to testify; concern that media interpretations would affect public opinion; worry that witnesses would change their demeanor to be more likeable; worry that turning proceedings into entertainment could undermine the system and potentially undermine the privacy of those involved.

The 1995 O.J. Simpson murder trial in California is often cited as an example of cameras in the courtroom gone awry for many of these reasons.

Bryan Hance, a professor at National University in Los Angeles who has studied cameras in the courtroom and worked on the survey of judges said that in the Simpson trial, some witnesses shied away from the limelight for fear of having their testimony parsed and dissected, and others were welcoming of the spotlight.

It’s not just concerns about witness demeanor, but lawyers, too, who seemed to resort to theatrics to make their cases, Hance said, citing defense attorney Johnnie Cochran’s famous line “If it doesn’t fit, you must acquit,” referring to a glove found at the murder scene.

There’s also the worry that cameras will provide fodder for news coverage that doesn’t accurately reflect the tenor of the trial.

“There’s always this concern, even if you have the cameras on, that only snippets of the trial will either be publicized or people will just turn the TV on for five minutes and then watch something and turn it off,” Hance said. “It’s difficult to get a good, clear perspective on the trial, on the process.”

Hance said we won’t know how the cameras affected the Chauvin trial one way or another. The trial appeared to be relatively calm and well-run, he said, but one instance made him wonder about the impact of cameras. During witness testimony, a firefighter and EMT sparred with the judge over answering a question. The jury was excused, and after they were gone, she asked whether the cameras were off. When Cahill said no, she seemed to comply.

“I wonder if the judge had said, the cameras are off, if she might have explained herself more,” he said.

More cameras?

It’s not yet clear whether Minnesota courts will open up courtrooms to cameras more widely in the future as a result of the Chauvin trial, but advocates of cameras in the courtroom are hopeful.

Moran said lawyers and judges alike can be hesitant to try new things and take risks, but she thinks this trial showed Minnesota cameras in the courtroom can be done well.

“I suspect it will, on a larger scale, make courts more willing [to allow cameras],” Moran said. “Not that it’s going to happen all the time … [but] it definitely creates more, not precedent in the legal sense but willingness.”

Cameras will also be allowed in the trial of the other three former Minneapolis police officers involved in Floyd’s death. But as for making more lasting changes to allow more cameras in Minnesota’s courtrooms, it’ll be up to the Minnesota Supreme Court, which makes the rules for all the state’s courts, to decide.

“The people who really matter on this of course are the justices of our Supreme Court. They’re going to be the ones who decide whether or not this becomes permanent or not,” Kirtley said.

Correction: This article has been corrected to accurately state the rules regarding cameras in Minnesota courtrooms.