Televising Proceedings Corrupt LAW and Courtroom Disorder Need Exposure

What are the implications of television cameras in the courtroom?

Expert guest for PRIDr Ruth Herz27th July 2016

Filming live court cases might make justice come to life, but do television cameras in a court room make our justice systems more transparent or improve public understanding of legal proceedings? Dr Ruth Herz, German judge and now visiting professor at Birkbeck School of Law, University of London, took on the role of a ‘TV judge’ on the German TV show ‘Jugendgericht’ between 2001 and 2005. In this expert blog for PRI, she draws on her own experience to examine the effects of bringing televisual media into the trial process.

The presence of cameras in our courts seems like a perfectly natural development, as television is an integral part of life in contemporary society and one of its main sources of information.

My four years of playing the central role of the judge on a German television court series as well as having been a judge at the court of Cologne for over twenty years have made me acutely aware of the problems and questions that TV cameras in court may pose.

I was offered the part of the judge in a court series. Although I had never thought of myself as a television personality and was hardly keen on being associated with the medium I eventually accepted. After all, the programme would provide me with the opportunity to convey my views on law and justice to the public at large. I had recently successfully set up a victim-offender mediation and reparation scheme for young offenders, which was subsequently introduced as a formal sanction into German youth law. I was actively opposed to tough punishments for young people, which in my opinion do more harm than good in most cases.

The series was to show fictional cases based on real life, bread and butter cases heard in youth courts across Germany. They would highlight specific problems and conflicts that young people are confronted with in society and show how the court deals with them. The exceptional feature of the programme was that a professional judge would play the role of the judge.

The same applied to the parts of the defence lawyer and the prosecutor. Amateur actors would play the other the parts: the defendants, witnesses, expert witnesses, social workers etc. The roles were not fully scripted which further added to the authentic feeling of the programme. In the contract I secured for myself the freedom to conduct the ‘trial’ the way I thought fit as well as to make the decisions and give the reasons for the decisions in the way I would have done in court in similar cases.

The Minister of Justice of Northrhein-Westfalia was convinced that the portrayal of justice on television by a professional team, as close to reality as possible, would lift the veil of secrecy surrounding the judicial process and ensure transparency.

Das Jugendgericht [The Youth Court] became hugely successful with ratings of around 25%, which accounts for about two and a half million viewers daily. This meant that for four years the programme became part of everyday life for many people. It was not uncommon for me to be approached, as happened one evening when a couple sitting at a neighbouring table in a small restaurant greeted me as an acquaintance.

As I was at a loss, they smiled and said ‘you should know us because you are in our living room every day’. Given the numbers of viewers, it may well be argued that the programme, and others like it, that sprang up like mushrooms after the rain, became the main source of information on the German justice system for a large part of the population.

I believed I had been asked to convey on television what I had done in court: to use my legal knowledge and way of thinking in order to solve conflicts with empathy and reach closure in society aiming at mending the social fabric. However I soon realised that I had to make an inner switch and recognise that I was acting the role of the judge and not being the judge. I soon encountered the crushing power of the media.

The world of media, and not only the producers of the specific programme, is not only about information and education; it is also about entertainment, about action, and it is motivated first and foremost by money. So when competition appeared on the small screen it caused the serious quality of my programme to suffer. The court series, which had started out portraying the justice system realistically, ended up slipping into the scandalous. Emotions, or what the production defined as emotions, became more and more prevalent.

Now bizarre figures populated the ‘courtroom’, the language became rough and the actors’ dresses even more revealing. The defendant, the witnesses and the audience started communicating uninhibitedly in the courtroom compromising the authority of the judge. And worse still, the defence lawyer as well as the prosecutor began to act aggressively and to raise their voices, a behaviour quite unheard of in a German court.

The judge ended up losing her traditional position and competing with the other actors in front of the cameras. This obviously did not conform to the traditional authority of judges in Germany, which is reflected in their high status in society and which in turn maintains their credibility and legitimacy.

My argument that the new style of the series was prone to a reduction of complexities and to a simplification of events, conflicts and facts leading to a flattening out of legal meanings went unheard. The media people argued that real court trials were tedious and boring and that television had to render them more emotional and sensational.

They are far more interested in celebrities and high profile cases. ‘This is what the public wants’ they claim, thus underestimating or perhaps even manipulating the public, I thought. Fairness and impartiality, the concepts at the heart of justice, are not the main concern of journalists when they enter a courtroom to report about the trial.

This was the moment when I quit television fully aware of the power that the media had accrued over the years, mutating into something of a fourth power in the state.

Although I am talking about ‘my’ TV programme, I believe it reflects the problems we face with television portrayals of court proceedings in general. It seems to me that claiming to make the court more accessible and interesting to the public is a means of competition with the judiciary. Judges often make this easy for the media as they rarely exhibit any special competence at talking to the public and tend to have a kind of ‘anti-theatrical’ way about them, speaking in a language that is often opaque to the general public.

Although the media may say that they are just translating the legal proceedings for the public, they actually present their own version of the proceedings imbued with their own interpretation. By so doing they turn the public into the judges of the judges. Does the portrayal of justice in the media therefore mean that the social functions of punishment and the affirmation of shared morals have been transferred from the justice institutions to mass media?

Portrayals of court proceedings on television are also problematic because of the choice of cases shown, not only on the youth court programme. This introduces a false emphasis of reality and causes our judicial vie quotidien cases to disappear and become ‘secret’.

So watching trials on television does not necessarily mean that the justice process has become transparent. We should first, I think, ask what exactly do we mean by transparent? Has it not become a somewhat declarative and mythic proposition? TV spectators may come to believe that watching a trial on TV is the same as being present at the real trial.

What we see on television are images of the proceedings from the perspective of the person reporting them. We don’t see the other aspects, we don’t feel the tensions, and we don’t understand the questions and the weight of the answers. I believe that what we see on television hardly delivers transparency but rather brings the credibility of the judicial system into question.

There is another aspect of showing trials on TV that is rarely touched on: television has become global. We see trials on television not only from our local courts, but also from foreign jurisdictions. We also see films and TV series set in courtrooms. All these formats blur reality, fiction and locality. The result is that the court does not belong to a specific place or country anymore but becomes displaced.

By taking the court out of a specific court building, it brings it into cyberspace. The court proceedings we watch are now happening in ‘nowhere land’, where there are no longer familiar symbols and rituals.

One small example from my own experience was that I resisted attempts by the producer to make me to use a gavel, an item that does not exist in the German justice system but which the public knows from US series and films and has therefore become the universally recognized symbol of the judiciary. But perhaps more importantly, local culture, politics and history play an important role in the judicial understanding of the people and the situation in a trial.

There are of course ways to avoid and limit distortions through TV reporting on court proceedings, as the Supreme Court in London has done by introducing ‘videos on demand’. In setting up its own cameras, it decides how to portray the proceedings according to its own standards. However, by eliminating all the television ‘effects’, the video of a Supreme Court Justice reading the decision defeats the purpose of reaching a larger audience and making the proceedings transparent.

This is can clearly be seen in the numbers of people who watch the Supreme Court videos. About 8000 watch each case (mostly lawyers and law students), as opposed to the millions of viewers watching the cases on Jugendgericht or the high profile trials such as the Pistorius trial.

Because of their different objectives and priorities, the law and the media simply do not speak the same language. As a result, most people receive information about the law from different sources and therefore have ideas about it that are ‘miles away’ from those of lawyers and judges.

Now, I would be the last person to say that television images in and of courts should not be permitted. On the contrary, clearly images make the text, the word, make justice come to life through performance, through rhetoric, through rituals. But I do want to warn of the pitfalls, which suggest that we may not yet have found the adequate formula to realise this.