CMC Professor in National Debate over Video Camera Usage in Courtrooms

A controversial video involving CMC Associate Professor of Government and Rose Institute Associate Director Kenneth Miller recently surfaced as part of a national debate about the use of video cameras in courtrooms. The video shows Miller testifying in the Proposition 8 trial last year. The issue arose after retired U.S. District Court Judge Vaughn Walker, who oversaw the case, used this and video footage from other trials in lectures he’s given at various institutions.

Proposition 8, the California ballot measure which passed in November 2008, restricted marriage to opposite-sex couples. In the 2010 federal lawsuit Perry v Schwarzenegger, petitioners challenged the constitutionality of the proposition. Miller was called as an expert witness for the defense by ProtectMarriage, which supported the “Yes on 8” campaign for traditionally-defined marriage.

Some of the video footage that Walker has used in his lectures includes clips of Miller’s cross examination, testing his assertions regarding the political power of the LGBT community. This was relevant for determining the appropriate legal route to take on the issue, based on whether the group was politically powerful enough to defend its rights in the political process or if judicial intervention was needed.

The footage has been shown in lectures Walker gave at institutions including the University of Arizona and UC Berkeley School of Law, at least one of which has been broadcast on C-SPAN.

The controversy stems from a disagreement over whether video footage from trials should be permitted for use outside of the courtroom, or beyond closed-circuit television (CCTV) for overflow trial audiences.

The Federal District Court for the Northern District of California, where Perry v Schwarzenegger took place, had a rule prohibiting the use of cameras in the courtroom when that trial took place. Walker and the District Court, however, attempted to introduce a pilot program for broadcasting trials, with the intention that the Prop. 8 trial would be broadcast over the Internet.

ProtectMarriage objected, but the 9th Circuit Court of Appeals sided with Walker. The matter then went to the United States Supreme Court. In Hollingsworth v Perry, the Court ruled 5-4 against Walker’s pilot program, due to issues with the process and to the controversial nature of the trial.

However, according to Walker, the Supreme Court ruling did not address whether Walker could later use the videos already recorded. According to the Supreme Court's records online, the January 13, 2010, ruling reads: “We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.”

At the time, Walker agreed to abide by the Supreme Court’s ruling, stating that he would keep the tapes only for use in his deliberations regarding the case. A CCTV stream was also permitted for an overflow audience in the San Francisco courthouse.

“The debate over the pros and cons of broadcasting trials will continue, but the clear understanding in the Prop. 8 case was that the trial video recording would not be shown outside of the courthouse,” Miller said.

However, Walker has shown a three-minute clip of trial footage at several of his college lectures, and ProtectMarriage is now seeking an order from the 9th Circuit to prevent Walker from continuing to do so, and to require all videotapes of the trial to be returned to the district court.

“Of course, trials in the United States are public, and information about them is publicly available,” Miller said. “The issue is the appropriate format. Many courts, including the U.S. Supreme Court, have expressed serious concerns about video broadcast of trial proceedings.”

Court and press reporters were present at the trial, and a full transcript of the trial is available to the public.

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