NO NEED FOR RULES AMENDMENT IN OHIO

The Ohio Supreme Court is considering amending Rule 12 of the Ohio Rules of Superintendence for no good reason.  The public was invited to comment, and I was proud to do so on behalf of The Cincinnati Enquirer.

The Rules of Superintendence are the playbook for Ohio’s courts.  They tell judges how to conduct trials, among other items.  Rule 12 addresses the media’s coverage of trials.  And in its current form, Rule 12 recognizes the importance of media access and transparency generally.  For example, the rule makes it clear that the media is permitted to broadcast and record trials.  The rule says the judge assigned to the trial or hearing “shall permit the broadcasting or recording.”  It’s not discretionary.

And there are no limits on what the camera can record, except that victims and witnesses may object to being filmed.  Otherwise, the rule places no limits on the coverage. That makes sense, because a trial is a public event and the media serves as the public’s eyes and ears.  This rule has been in place since 1998 and it has served the public well.

But, apparently ignoring the age old proscription “if it ain’t broke, don’t fix it” the Supreme Court is considering amending the rule to add subsection (3) to Section (C).  The Amendment would provide:

(3) Unless permitted by the judge, there shall be no filming, videotaping, recording, or photographing of jurors or prospective jurors. In courtrooms where the filming, videotaping, recording, or photographing of trial participants is impossible without including the jury as part of the background, it shall be permitted, provided close-ups clearly identifying individual jurors shall be prohibited.

Proponents of the Amendment have provided no evidence that there is any need for this change, which means the Amendment is, by definition, a solution in search of a problem.  The fact is, media outlets rarely, if ever, publish photos or broadcast video of jurors.  I have represented media outlets since 1995 and I cannot recall an instance where this has ever happened.

Worse, the Amendment feeds into the mistaken notion that jurors have an expectation of privacy as to their service. They don’t.   Indeed, the public has a vested interest in knowing who serves on a jury.  The fairness of a trial depends in large part on the makeup of the jury.  And if judges, prosecutors and defense counsel aren’t ensuring that biased or compromised jurors aren’t excused, the public has a right to know.

And jurors get this. In the second trial of Ray Tensing – the University of Cincinnati cop who shot an unarmed motorist during a routine traffic stop, the judge asked potential jurors if they objected to serving if their identities would be revealed.  Over 100 of the 180 potential jurors in the pool answered no.

The problem with the rule is that it would allow a judge to hold a media entity in contempt if it inadvertently shot a juror while trying to record the trial.  While the overwhelming majority of judges would not abuse the rule in this way, there is no reason to give this tool to the outliers who would.  And it could have a chilling effect. Media outlets may opt not to film at all in a small courtroom, rather than risk violating the rule.

And of course, footage of the jury may be newsworthy.  What if a juror makes a scene in the midst of trial?  What possible reason is there for flatly prohibiting the media from recording that?  And imagine a situation where a judge does nothing about inattentive jurors (and it happens – I had a case once where a juror slept through most of the trial. I would have objected, except that every time he woke up, he smiled at me).  Why not allow a report on that, which would require some footage of the jurors?

I am totally fine with change, as long as it makes sense.  But this one doesn’t.  Not even a little.