In his 1987 magnum opus The Fatal Shore, Robert Hughes sketches the early days of his country’s legal system — in which prisoners of the state served time as farm workers in ‘the continental prison that was Australia.’ When they were abused by their masters, they had to go to court for help. In the 1800s, ‘[d]istrict benches close to Sydney were apt to treat convicts fairly and well, partly because their magistrates were more in the public eye.’ Where there was less transparency or none, justice was a scarce commodity: ‘[T]he further outback a farm was, the more opportunity it held for tyranny and the more likelihood there was of collusion between settlers and magistrates.’
Outside museums, no ordinary visitor to the land Down Under can detect any trace of its convict-society past. But today’s Australians are as eager as people on every continent to see how transparency through live-streamed court proceedings can sanitise their justice system. Whether from experiences as plaintiffs, defendants or court insiders, from civil or criminal trials, there is no shortage of witnesses capable of testifying in jurisdictions almost anywhere in the world that versions of this account from settler-era Australia quoted by Hughes are still playing out — far removed from public oversight:
One magistrate will bring his men to be tried before a neighbour magistrate, and it is a frequent practice for the master to pay a private visit to the magistrate, and say he is going to bring such a man or men before him, and wishes that such or such particular punishment may be dealt out. On the arrival of the men … the magistrate enquires what they have to say in answer to this charge, and frequently […] interrupts them, saying “I will not believe a word you have to say, and I shall sentence you to receive so many lashes.”
‘We are all pushing on this boulder,’ read the message of encouragement from a fellow-campaigner for exposing injustice in California, reacting to last month’s entry on COTIN. The boulder is the resistance of too many American courts, including the very highest one, to streaming trials on the internet in real time — an evolutionary jump in which the golden state famous as a crucible of innovation and for pioneering social legislation is trailing other states at a lackadaisical pace. This is not because courts in California work too well to warrant close, daily public scrutiny. Rankings of judicial accountability by state, published by the Center for Public Integrity in 2015, point to the opposite conclusion. The blog of the California Supreme Court noted:
In the CPI’s just-published report on California, the state judiciary received an F grade. This is a significant drop from the C-minus California received in 2012, the last time the CPI evaluated the state.
Yet Media Law Monitor recorded in 2016 that ‘[w]ith its new live-streaming video,’ California’s Supreme Court became merely ‘the 35th state court of last resort to provide live or near-live online video access to its proceedings’ — at about the same time as Alaska, Michigan, South Carolina and Delaware.
In a parallel that seems just as unlikely, given America’s status as the most influential digital technology pioneer, the U.S. is being overtaken by most countries whose legal systems have their roots in the English common law tradition — a group that includes India, despite its economic disadvantages and sprawling and unwieldy network of courts serving a population three times larger. Writing for The Guardian in August about Britain — whose Supreme Court went live on the net in 2011, and Court of Appeal made its maiden appearance on YouTube last month — the eminent London barrister Geoffrey Robertson said, in welcoming the prospect of television cameras in lower courts,
Barristers frequently wish they could include as a ground of appeal an objection to a trial judge’s prejudicial tone of voice or body language – prejudice which is not apparent from reading a trial transcript. […]
There will always be claims of privacy, but trials are public occasions. […] My own experience in proceedings in other countries has been that televising trials means that the barristers are better prepared, the judges better behaved, and the public better informed.
If any U.S. lawyer of comparable seniority or any high-ranking judge has expressed similar sentiments in public, they have gone strikingly unreported. There have been very few reports of the legal profession recommending or cheering for truly open court proceedings, viewable live and online, in U.S. newspapers — in startling contrast to other common law countries.
Assisted unwittingly by an uniformed public, and by politicians who have failed to make this an election issue, the U.S. Supreme Court has dug in its heels about rejecting live streaming. This explains why federal courts and several of their state counterparts continue to hold out against the admission of disinfecting sunlight into their deliberations. In late 2017, Ars Technica reported:
The Supreme Court is setting aside a request to live stream its oral arguments. The attorney for Chief Justice John Roberts Jr. told members of Congress that live streaming even the audio portion of its oral arguments might impact the outcome. […]
“I am sure you are … familiar with the Justices’ concerns [ that ] the live broadcast or streaming of oral arguments … could adversely affect the character and quality of the dialogue between the attorneys and Justices. Consequently, the Court is unable to accommodate your request.”
Cross-national comparisons on this topic suggest a consensus about the need for transparency being most acute in courts at the local level, close to the human dramas in which rights are being asserted — rather than in appellate courts, where justices debate airy, often arcane, legal abstractions. This is evident in, for instance, readers’ comments (see screen shots below) on a Times of India story in September titled ‘People can watch courtroom drama live, SC allows live-streaming of court proceedings’ — which, with minor adjustments for place, could easily have been made on behalf of millions in other countries where courts are making this transition.
A legal system functioning honestly and correctly is the proof of a civilised society. But as taxpayers grow less and less confident that it is doing so, serving their needs, that foundation becomes progressively more unstable. Before any repair work can be done, they need to be able to see exactly what in happening in the courts. Transparency, followed by resolute, persistent corrective action. Simply and eloquently, in the same chapter of The Fatal Shore quoted at the start of this entry, Hughes states a profound truth:
Rights emerge by bargaining between the powerful and the relatively powerless; they are not simply granted, for if they were, there would be none. … Rights are solidified claims, sanctioned by use and expectation.