Every day technology advances and changes the world we live in. Even the law is adapting to keep up with the new digital world, and the lawyers at my law firm are keeping up with this technology and how it affects our cases. After all, almost everyone has a smart phone these days and can easily broadcast anything they wish. Recently, my law firm was representing the victim in a Final Restraining Order trial and the defendant wanted the proceedings recorded on camera. One of our associate attorneys successfully argued that the defendant intended to post the trial on the Internet only to further harass our client which is what New Jersey’s Prevention of Domestic Violence Act was intended to prevent. Our legal argument was successful and the defendant’s motion was denied.
The Supreme Court of New Jersey adopted guidelines to guide lawyers and judges for the use of modern electronic technology that balances public access of information with the fairness and integrity of New Jersey courts. The Supreme Court Guidelines on Electronic Devices in the Courtroom, effective February 2, 2015, replaced the New Jersey Supreme Court Guidelines for Still and Television Camera and Audio Coverage of Proceedings in the Courts of New Jersey that were issued in 2003. The Guidelines apply to proceedings in the New Jersey Supreme Court, Appellate Division, Superior Court, Tax Court, and Municipal Court. The Guidelines are designed to provide public access to the court while also ensuring fairness to litigants, acknowledge the existence of new technology and allow its reasonable use in court, prevent delay in legal proceedings, and to maintain appropriate court decorum.
Modern technology has provided both traditional journalist and members of the general public with access to numerous forms of easily portable electronic devices that can be utilized to capture news through photographs and video. Notebooks and sketchbooks have been replaced with smart phones and computer tablets. The pervasive use of new electronics, and their availability to the general public requires court to enforce guidelines outlining the use of electronic devices in and around a courthouse, so their use does not compromise fairness or efficiency in court proceedings. According to the Guidelines, “electronic device,” means any device that has the capability to transmit, broadcast, record or take photographs. The term “electronically record” means the audio or video recording of events by an electronic device.
The guidelines require as a perquisite, that the person who wishes to use electronic devices in the courtroom execute an Agreement for the Use of Electronic Devices. Such agreements will expire after one year. With an agreement one may use an electronic device inside a courtroom to take notes and receive information and communications without further approval. The executed agreement must be submitted to the trial court administrator, or to the clerk of the court in the Appellate Division or Supreme Court. It may be submitted electronically through email or via mail or hand delivery. The court may restrict use of electronic devices used to transcribe, transmit and receive information and communications, if the use interferes with the administration of justice, poses a threat to safety or security, or compromises the integrity of the proceedings. Anyone in violation of the agreement will be subject to sanctions as the court seems fit including, but not limited to, contempt of court.
Anyone who wants to photograph, electronically record, broadcast or transmit must first have a valid Agreement and then request written permission from the court. The request must be in writing unless it is impractical to do so, such as if there is a time constraint. Then the court may consider an oral request. The request needs to provide: the date of the requestor’s agreement for the use of electronic devices, the matter that will be covered and whether the permission sought is for a specific proceeding or for all court proceedings open to the public, and an agreement to provide pooling capabilities. Just like an Agreement for the Use of Electronic Devices, the request may be submitted electronically, through mail or hand delivery as the court seems fit. Such a request must be presented to the court within a reasonable time before the proceedings begin so that the court has sufficient time to consider the request. Any request relating to a proceeding already in process will be considered at the discretion of the court. This request is not to be conditioned upon obtaining the consent of any party, attorney, witness or participant in a proceeding. However, even though consent is not required, the court may still consider the consent of the parties regarding the permission granted.
Within 24 hours the court will decide whether or not to approve such a request, or as soon as practicable. Practicability depends on the number of present requests, the need of the requestor for timely access to the proceeding. The court will specify whether the permission is for a specific case or for all cases open to the public. Discretion is given to the courts to modify or rescind permission if circumstances change. The only time an agreement for the use of electronic devices and a request for permission to photograph, electronically record, broadcast or transmit is not required is for adoptive parents and other family members attending a final hearing in an uncontested adoption case.
Photography, electronic recording, broadcasting or transmitting is not allowed in any matte closed by: court order, statute, or the Rules of Court. Closures pursuant to court rules include secrecy of grand jury proceedings, protective orders, adult civil commitment hearings, family actions affecting the welfare of a juvenile, hearings and trials held by Division of Child Protection and Permanency, and confidentiality of juvenile delinquency hearings. Besides these closed areas, there also restrictions that apply in all cases. These restrictions prohibit photographs, recordings, broadcasts and transmissions of victims of crimes under the age of 18, and witnesses under the age of 14, as well as conferences between an attorney and client, side-bar conferences between court and counsel, or of a jury, any individual juror or any other person that would permit the identification of any juror.
Ultimately, the court retains discretions to impose such restrictions on the use of electronic devices as they seem necessary to implement the goals of the Guidelines. In reality, photographs, electronic recordings, broadcasts and transmissions can be excluded in any proceeding where the court determines the same would cause a substantial increase in the threat of, or the potential for, harm to the litigant, juror, witness, or any other participant in the case, or would otherwise unjustifiably interfere with the integrity of the proceeding. To determine whether a substantial increase in the threat of, or the potential for harm exists, a court can consider the potential for intimidation of victims, witnesses, and others. Similarly, the court may terminate, limit or modify conditions of the taking of photographs, electronic recordings, broadcasts and transmissions permitted in any proceeding, upon reasonable notice. Electronic recordings, broadcasts, and transmissions are not admissible as evidence. Nor can they be used in court for any purpose, not even as a challenge to the accuracy of the official court record. The record will not be considered a valid official transcript in any way or for any purpose.
Under the courts discretion and authority a judge can require a requestor to attend a pretrial conference. The purpose of this meeting is limited to decisions on electronic video or audio recording. Such a pretrial conference will include the court, the attorneys for the litigants, the requestor, and any other person deemed necessary by the court. At the pretrial conference the court will review the provisions of the guidelines, and any objections will be considered at this time. Before imposing any special limitations or restrictions the court will consult with the requestor. This conference does not require any pretrial order, but the court will still make a record of the decisions reached, including any and all limitations or restrictions imposed. Any decision reached is appealable to the New Jersey Appellate Division, but such motions need to be made promptly after any such decision.
Please never hesitate to contact my office if you or a loved one is involved in a domestic violence situation.