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Lights, Camera, Action

A Commentary by Susan Estrich

Wednesday, January 13, 2010

The federal trial of Prop 8 -- the California anti-gay marriage amendment whose constitutionality is currently being challenged -- was about to be a grand experiment in televised trials until the Supreme Court abruptly pulled the plug Monday morning. The court said it needed more time to consider the arguments made by Prop 8 supporters that televising the trial could lead to intimidation of witnesses. So the cameras, which were to record the trial for delayed rebroadcast on YouTube, are at least temporarily turned off.

In theory, I’m a big supporter of cameras in the courtroom because I think the public has a right to see what goes on inside courtrooms. I also believe they should see what goes on because they could learn something.

Judge Judy has nothing on some of the judges I’ve appeared in front of, in terms of brains and wit, not to mention smarts. Most of the time, when I go to court, what impresses me is how good the judges are, how good all of us are, really, when we stand up to make our case, using law and logic as our weapons and abiding by decisions we disagree with because we do.

Oh, there are plenty of exceptions, and the lawyers reading this are probably already listing them. But my theory on that is that the guys (and gals) who we all know are completely out of line wouldn’t do it for the cameras. I used to bring my law students to the courts in Cambridge on days when friends had big (and unpopular) arguments to make to ensure that the judge would at least hear them out. Cameras would do that, too.

Of course, there’s a difference between principle and practice. Much as I love the idea of cameras in the courtroom, there are obviously cases where they don’t belong. Gang prosecutions are not the only ones where the danger of witness intimidation is real.

If the opponents of Prop 8 had been half as successful in the campaign as they were in its aftermath, or half as tough and brutal, depending on your perspective, the initiative would not have passed. Anyone in any business in any way dependent on the gay community or their friends would have to think twice -- or more -- before contributing to Prop 8. Or testifying in favor of it.

Trials are not classrooms. They are temples of the truth. And if we do not always live up to that, getting to the truth remains the thing we are supposed to do above all. That’s why, educational as a trial may be, if televising it gets in the way of getting to the truth, the cameras should go.

I understand that people behave in very unnatural ways when a camera is on. The hardest thing to do is to be natural, or at least look it, because most people go into these heightened states that do not always become them. I’m not worried about judges grandstanding -- in district courts, the ones who want to don’t need cameras to do it, and on the appellate courts, the other judges can handle it. My concern is witnesses who play to the cameras and, even more, witnesses with something to say who are afraid of the public repercussions of doing so. If they get in the way of the truth, the cameras should go.

So which is it in San Francisco? This is not a case where we need testimony from witnesses afraid of gang retaliation or from members of organized crime or from the victims of sexual assault. This is one of those rare cases where the purpose of the trial is to create a "factual" record, which will then be the basis of arguments in the higher courts, as well.

That record includes the testimony of Harvard professors about the Biblical record on marriage, as well as that of couples about the impact of the law on them. No one is forcing people to testify. Those who do so presumably believe they have something to contribute to that record.

The fear that witnesses on the Prop 8 side will be publicly attacked for testifying is one that every conservative talk-show host in America -- whose combined audiences far exceed that of this trial -- will be standing guard to protect against. I'd let the cameras roll.

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