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I recently participated in a live televised mock trial of Pete Rose on ESPN. I was the prosecuting attorney, Johnnie Cochran was the defense attorney, and 12 jurors were asked to decide whether Rose bet on the outcomes of baseball games and whether he should be admitted to the Hall of Fame. We called witnesses, examined documents, and made opening and closing arguments. Eleven of the 12 jurors concluded that Rose had bet on baseball, but by a vote of 8-4 they decided that he nevertheless belonged in the Hall of Fame. Following the trial I received several phone calls from people who thought that the trial was a real one and that Rose would now be enshrined in Cooperstown. The point of this story is that it has become increasingly difficult to distinguish between actual trials, covered live on television, and mock trials presented for the entertainment and education of the public. Real trials, especially salacious ones involving famous people, have become info-tainment.
The upcoming trial of Kobe Bryant has once again placed at center stage the issue of televising real trials — in which the stakes are extraordinarily high. There are compelling arguments on both sides. Those who advocate televising trials point to the public's interest in seeing its courts at work. Just as debates in Congress — including the impeachment and trial of former President Clinton — are televised, so too should the workings of our judicial system be subject to public scrutiny. We should be able to see our judges in action and our legal system at work, warts and all. This is especially true in states where judges are elected by the voters.
The arguments on the other side are also strong. Courts aren't supposed to be subject to popular pressures or public opinion. They are supposed to apply the law professionally and objectively. We have seen what has happened when tyrannical regimes have conducted show trials (witness those allegedly conducted by Fidel Castro in soccer stadiums). Even in America, witnesses and jurors may be intimidated by the camera, lawyers and judges may posture, crime victims may be reluctant to come forward knowing that the most intimate details of their experiences will become the object of a voyeuristic public, and even innocent defendants may be pressured into copping a plea in order to avoid nationally televised public humiliation.
The National Association of Criminal Defense Lawyers has argued that criminal trials should be televised only if the defendant agrees to it. They contend that the right to a public trial belongs primarily to the defendant, who has the greatest stake in the outcome of the case. The media responds by pointing to the public's right to be certain that the defendant is not abusing the system and that the prosecutor is not colluding with the defense. In the Bryant case the defense moved to close the courtroom to television cameras. The prosecution has taken no position on cameras, but agreed with the judge's decision to seal case documents. The complaining witness seems to be against television as well, since she has not disclosed her identity. This case, therefore, pits all of the participants against the media and the public. There is little doubt about the public's interest in the case, since Bryant is a world-famous basketball star, and the charges against him seem so inconsistent with his public persona.
But famous people are also entitled to fair trials. Striking a balance between the public's right to observe its courts and the defendant's right to a fair trial uninfluenced by public opinion is difficult. England has gone too far in the direction of insulating its courts from public scrutiny by banning contemporaneous print as well as television coverage. Perhaps in America we've gone too far in the other direction by conducting polls on how judges should decide pending cases. But these extremes shouldn't surprise anyone. England is far more elitist than the United States in many respects. The British appoint judges and prosecutors, while in most of our states we elect them. They seem to trust their legal system, while we are suspicious. They protect their judiciary with rules forbidding media coverage, while we cover every aspect of our high-visibility cases.
I generally favor televising trials, since I believe that the camera is more accurate than the often subjective accounts of reporters and the courthouse-steps spin of lawyers. But I also believe that in any case in which a criminal defendant opposes the televising of his trial, his rights must be balanced against those of the public.