J.A.I.L. News Journal
Los Angeles, California                                     February 7, 2006
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Courtroom Videotaping

Ready for Your Close-Up, Your Honor?

Several states use courtroom videotaping
to assess judges' courtroom demeanor

The National Law Journal
February 6, 2006

If golfers and football players use videotapes to improve their game,
why not judges?
That's the philosophy behind a pilot program in Massachusetts in which
several judges were recently videotaped so they could see exactly how
they act behind the bench.
While cameras have long been in the courtroom documenting trial
proceedings, this program is different in that the cameras zoom in on
the judges, looking for blunders or improper behavior. 
"This doesn't mean that judges are not performing well; it just means that
we need to continue to perform well and, when necessary, perform better,"
said Charles R. Johnson, chief justice of the Boston Municipal Court
Department, who is reviewing 30 videotapes of judges to see where
potential weak spots are.
"I'm sure that the majority of the tapes will reveal that the judges are
doing exactly what they should be doing. But it may very well reveal
that there are judges who could improve their courtroom demeanor,"
said Johnson, stressing that the program is not punitive but a preventative
measure to weed out potential misimpressions.
"You can see mistakes and say, 'Oh my God, did I do that?' or 'Did I say
 that?' But unless you have the opportunity to look back and observe your
performance, you might miss your mistakes because a lot of people don't
 point out our mistakes. They are reluctant to point it out, and to a large
extent we operate in isolation," Johnson said.


According to the National Center for State Courts, just two other states
 have similar programs. Minnesota has videotaped judges since 2000, while
New Jersey has been taping for a decade. In recent years, Oregon
experimented with the idea. And some courts in California review
videotaped court proceedings, but only if there's a complaint against a
Judge Geoffrey Neithercut of Michigan's 7th Judicial Circuit Court in
Flint, whose courtroom has been videotaped over the last decade, sees
videotapes as a useful tool that can help keep judges and lawyers in line.
While the 7th Circuit initially implemented cameras to save money on court
reporters, Neithercut noted that the program has helped judges nix bad
Specifically, he recalled a judge who was famous for using body language
to try to influence the jury, but modified his behavior after being caught
on tape doing so.
"He would sigh. He would roll his eyes. He would instruct the jury and
say, 'Now the law says we presume the defendant to be innocent,' and his
eyes would go to the back of his head," Neithercut said. "With the video
 you could catch him in the act."
Neithercut applauded the Massachusetts program, saying, "I think it's a
great idea." As for his own behavior in the courtroom, he said, "I'd like
to say I try to do the right work with or without the [video] system."
Attorney Cynthia Gray, director of the Center for Judicial Ethics for the
American Judicature Society, said videotapes could be a useful tool for
 judiciary review committees that have to investigate cases of judicial
misconduct. She noted that misconduct cases saw a 29 percent increase
in the last year, from 114 in 2004 to 147 cases in 2005.
"I don't know if it would get rid of misconduct or not. But I always think
 it's good for judges to look at themselves and for commissions to have
good evidence to exonerate judges or help prove misconduct," Gray said.
In New Jersey, court officials note that videotapes help give judges the
kind of feedback that lawyers or jurors are afraid to give.
"When we started doing evaluations with questionnaires, no one wanted
to tell the judge what they honestly thought, and the videotapes are pretty
 good at giving them some clear-cut feedback," said Richard Young, chief
of the judicial education and performance unit for the New Jersey
Administrative Office of the Courts.
David Givens, an anthropologist who researched and videotaped judicial
 behavior for the Washington state judiciary for seven years, said
videotapes can show potential bias in a judge.
For example, he said, if judges compress their lips when a defendant is
talking, it sends a signal that they don't believe the defense. Or when they
pay attention to the prosecutor, but scribble notes when the defense lawyer
speaks, that implies they favor the prosecution.
Our thanks to Attorney Gary Zerman, gzerman@hotmail.com,
 for bringing this to our attention.
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