Some of this has already happened. You can watch live hearings of the Supreme Court on their website, and the Court of Appeal has delivered judgments to cameras. A Scottish criminal trial has already been televised, in Channel 4’s The Murder Trial.
The real issue is more to do with the contemporary televising of cases involving contested evidence (appellate advocacy is a different beast.
It is hard to deny that televising has helped increase the public understanding of the legal system. My feeling is that the televising of the Pistorius trial and verdict helped people understand how the case and system worked better than a written account could have. And the recording of the Leveson Inquiry had a similar effect. But there are, it seems to me, substantial concerns that need to be addressed before it gets rolled out any further.
The biggest concern is the effect that televising has on advocacy. A common refrain is a desire to avoid the antics of the OJ Simpson trial. There were numerous suggestions that Barry Roux and Gerrie Nel were playing up to the cameras in the Pistorius trial rather than engaging in effective advocacy. Litigation and advocacy styles vary between jurisdictions, so I can’t say with any certainty whether that was the case, but it was the view of a number of legal commentators.
But even if it cannot be said for certain in the Pistorius trial, the wider point that televising could undermine the role of the advocate does make sense. There is always a pressure on counsel to play to the gallery. Although our job is to persaude the Judge, the commercial reality is that the Bar is a client and reputation-based profession. We have to be seen to do a good job, irrespective of whether we are actually doing one. Those sitting behind us may have more influence over our career than those before whom we appear. That pressure may be exacerbated by televising.
It is a fair point that trials are meant to be held in public anyway, and that televising is simply updating that principle to the 21st century. But the problem is that televising is a qualitatively different change. It amplifies the level of publicity to a completely different order of magnitude. It is quite different to have your name reported in a written account of a trial to having your evidence being recorded and broadcast.
Giving evidence is a daunting prospect even (perhaps especially) for the most honest of witnesses. Many witnesses are vulnerable, and often witnesses have to give evidence against themselves or agree to damaging criticisms. Frequently a witness’s credibilty turns on the fact that they are willing to accept criticisms made of them in cross examination. Witnesses may feel either intimidated, or otherwise inhibited from being candid, because of the much greater level of scrutiny to which their evidence is being subjected. In particular vulnerable witnesses, and relevant witnesses who want to avoid any of their dirty laundry being aired, may be intimidated from giving evidence.
This is a relatively common problem in litigation, and the amplifying effect of televising may exacerbate it such that valid claims and defences never get to see the light of day because witnesses feel unable, for a number of reasons, to tell the whole truth, especially when it goes against them.
This would be a particular problem in high-sensitivity cases such as sexual offences or those involving children. Not all trials are going to be suitable for broadcast.
As I said above, the Pistorius trial helped the public understand it and the verdict better. It was easier to explain to people how the Court came to a conclusion that suprised many. But it is quite possible for a televised trial to obscure rather than clarify.
It’s inevitable that if recording of trials occurs, there is going to have to be editing. The act of editing, though, is of a kind with the art of advocacy; both involve a substantial degree of selecting material to present and material to leave out. If that is not done properly, or done purely to chase ratings, it risks being prejudicial.
The presented matters are likely to be the points of high drama, even if they are not necessarily the most important to the litigation. Sometimes the most boring and technical parts of the evidence are where the case is won. Particularly if that trial involves documents, and you are cross examining to show that the documents do not accord with a witness’s evidence. And as the Pistorius trial shows, cases are not simply about who is lying, or who is lying worse.
The risk is that broadcasting trials could give a misleading impression of what goes on. The Murder Trial is a case in point. When I watched it it felt as though the producer had chosen the parts of the recordings that fit the verdict, and presented the trial as leading inexorably to that conclusion. In my experience, trials rarely work that way. It felt like it was simply amplifying the prosecution’s case.
In South Africa, with judge-only trials and a consequently relaxed set of laws regarding contempt of court, that may not be a problem. A judge will quite willingly disregard media reports. But that is less likely with a juror. The inherently selective presentation of the evidence may unduly influence the juror’s perception of events.
It could also be problematic with appeals. A selective broadcasting of a case could give the impression that the evidence at trial was stronger than it actually was. A successful appeal could be undermined by that impression – the public may take the view that they “know” the appellant was really guilty, based on the original broadcasts, irrespective of why the appeal was allowed.
In my view none of these are insurmountable problems, and much (if not all) is a difference of degree rather than kind to how trials already operate. But they need to be taken into account before there is any furthe relaxation of the broadcasting regime.