by Stephen L. Carter
I’ll admit to being troubled by the Aug. 31 ruling by the judge in Donald Trump’s upcoming Georgia trial that the proceedings will be televised and live-streamed. With all due respect, I’d like to offer a brief dissent. I’m no fan of former President Trump. But I’ve long agreed with Chief Justice Earl Warren, who argued a bit over a half-century ago that criminal defendants should be able to veto cameras at their trials.
Defense lawyers have argued for decades that the intrusion of cameras might alter the behavior of witnesses, counsel, perhaps even judge and jury. Though the evidence thus far hasn’t borne out this worry, the issue remains hotly contested. But my own concern is less about whether televised trials are fair to the defendant than about the effect they might have on the audience.
The case in favor of televising Trump’s trial is most clearly put in the recent letter from leading Democrats to the Judicial Conference of the United States, seeking waiver or reconsideration of the rule barring cameras at most federal court proceedings: “If the American people are to accept the outcome, it will be vitally important for them to witness, as directly as possible, the full facts and evidence.”
But is this really what’s likely to happen? Warren didn’t think so. On the contrary, he argued that because not all trials are televised, the choice of which ones to cover “singles out certain defendants and subjects them to trials under prejudicial conditions not experienced by others” — and this before a single shred of evidence has been admitted.
Warren made the comment in his concurring opinion, joined by fellow liberals William Douglas and Arthur Goldberg, in a 1965 case where the U.S. Supreme Court essentially imposed a moratorium on cameras at criminal trials. The court would change its mind 16 years later, but with next month marking the 70th anniversary of Warren’s elevation to the center chair, his concerns are worth repeating.
In the first place, Warren argued, the trials most likely to attract cameras would be those featuring “the very persons who encounter the greatest difficulty in securing an impartial trial, even without the presence of television.” For just this reason, Warren rejected the assertion that viewers would learn much from the spectacle:
“It is said that the pictorial broadcasting of trials will serve to educate the public as to the nature of the judicial process. Whatever force such arguments might have in ‘run of the mill’ cases, they carry little weight in cases of the sort before us, where the public’s interest in viewing the trial is likely to be engendered more by curiosity about the personality of the well known figure who is the defendant.”
The argument the other way assumes both that large numbers of people will watch Trump’s trial — trials? — gavel to gavel, and that the audience will largely comprise people who haven’t made up their minds and plan to weigh the evidence with care. But I suspect that the most likely viewers are exactly those most likely to view the proceedings through the lens of confirmation bias. What they thought about the former president’s guilt before the trial, they will think after.
Besides, few will watch all the way through. Most will catch only snippets selected by others. This, too, Warren predicted — and deplored: “By showing only those parts of its films or tapes which depict the defendant or his witnesses in an awkward or unattractive position, television directors could give the community, state or country a false and unfavorable impression of the man on trial.”
True, Warren did not anticipate either social media or cable news, so he skipped over the obvious possibility that carefully chosen excerpts could also create a false and favorable impression of the man on trial. But either way, the mischief is the same.
That Warren was right has been my conviction for decades; I’m not going to alter my view just because the defendant is a person who, to say the least, I do not admire. Law is first and foremost about evidence and reason, the written and spoken word. I’m among those who think we shouldn’t be in such a rush to transform the legal system into a visual experience. Surely new outlets don’t need video to report fairly and accurately on what happens in the courtroom.
I quite recognize that apart from the federal courts, nearly every state authorizes the televising of trials. Certainly, Georgia has long permitted the practice, with little controversy. But in a case this sensational, I’m skeptical that many viewers will come away with their minds changed. Instead, we’ll see the sort of spectacle Warren feared.
I’m not arguing that Trump shouldn’t face trial. If the former president has committed a crime, he should be punished, just like everybody else. But let’s not kid ourselves. Donald Trump is the most controversial and polarizing figure of our era. Whether or not he’s guilty, televising his trial won’t help us find out.